Gersh v. Anglin: Can the First Amendment Shelter a Troll Storm?

Andrew Anglin allegedly used his 'Daily Stormer' website to sic an army of neo-Nazi trolls on Tanya Gersh. But is he liable for their verbal vitriol?

A few weeks after Donald Trump won the 2016 presidential election, alt-right luminary Richard Spencer delivered a celebratory address at the National Policy Institute’s annual conference in Washington, D.C. “Hail Trump, hail our people, hail victory!” Spencer chanted to rousing applause and more than a few Nazi-style salutes.

Video of the speech went viral. Though Spencer already enjoyed prominence among alt-righters, white nationalists, separatists, and garden-variety bigots, the display of unadorned racism — “To be white is to be a striver, a crusader, an explorer and a conqueror” — resonated more ominously in the context of Trump’s looming presidency.

It also cranked up the heat on a feud that had been simmering for years in the hamlet of Whitefish, a Rocky Mountain resort town in the upper-left-hand corner of Montana.

The National Policy Institute, which Spencer has run since 2011, used to be headquartered in Whitefish, at his parents’ home. The organization’s presence roiled local residents: In 2014 members of a group called Love Lives Here petitioned the Whitefish City Council to banish the NPI. The effort was unsuccessful, but tensions apparently eased with time.

Spencer’s “Hail Trump” speech reignited the conflict, prompting a group of residents to contemplate protesting outside a local commercial building owned by Sherry Spencer, Richard’s mother.

There’s some dispute as to how events unfolded, but both sides seem to agree that Sherry Spencer was pressured to leave town.

In a December 2016 post on, Sherry Spencer claimed that a real estate agent named Tanya Gersh had threatened to send protesters and national media to her building until she agreed to sell the property, publicly denounce her son, and make a donation to the Montana Human Rights Network.

Gersh’s version is different: She claimed Sherry Spencer phoned her for advice because her building was attracting protesters. Gersh said she simply “wondered aloud why Ms. Spencer was keeping it and said that if she were in Ms. Spencer’s situation, she would sell the building, make a donation, and issue a statement disavowing her son’s views.”

Word of the conflict soon reached Andrew Anglin, the chronically agitated founder and editor of the neo-Nazi website Daily Stormer and an admirer of Richard Spencer.

Andrew Anglin, founder of the website Daily Stormer (screenshot via YouTube)

In an online post, Anglin pronounced the situation a case of “clear and obvious extortion.”

“Jew organizations engage in this transparent extortion racket with impunity,” wrote Anglin, noting that “[t]here are only 6,000 Jews in the entire state of Montana, yet they’re 100% of the people trying to trying to [sic] silence Richard Spencer by harassing his mother.”

This, Anglin believed, warranted attention. “Let’s Hit Em Up,” he suggested. “Are y’all ready for an old fashioned Troll Storm? Because AYO — it’s that time, fam.”

His exhortation included phone numbers, email addresses, and Twitter handles of Gersh and some of her immediate family and associates, as well as her husband’s business address. “Calling these people up and/or sending them a quick message is very easy. It is very important that we make them feel the kind of pressure they are making us feel. There hasn’t ever been a more important campaign than this…. And hey — if you’re in the area, maybe you should stop by and tell [Gersh] in person what you think of her actions.”

In Tanya Gersh’s eyes, what Anglin dubbed his “MEGA TROLLSTORM” amounted to an “ongoing campaign of terror.”  

Anglin reiterated his call to action multiple times. In late December, he wrote: “We’re wining [sic] big in Whitefish, in our battle against the sickening Jew racket running the town. For anyone who doesn’t know what’s going down, I wrote a big article on it Wednesday, and did a podcast. You’d better catchup quickly, and join this MEGA TROLLSTORM.” He described Gersh as a “‘street boss’ running an extortion conspiracy targeting the mother of a perceived political opponent of international Jewry.” In January, he applied for a permit for a march in honor of Martin Luther King, Jr.’s assassin. “We were initially planning to march to Tanya Gersh’s home, but we decided it would be too cold,” Anglin wrote. (The city denied the permit, and the event was canceled.)

In Gersh’s eyes, what Anglin dubbed his “MEGA TROLLSTORM” amounted to an “ongoing campaign of terror.”

Gersh sued Anglin this past April in the U.S. District Court for the District of Montana, claiming, among other things, invasion of privacy and intentional infliction of emotional distress. The crux of her allegations is that Anglin prompted his followers to send her more than 700 harassing messages via voice, text, and email.

“These communications contained countless slurs and threats designed to inflict maximum emotional damage on Ms. Gersh,” the complaint reads. “‘[O]ven-dodging Christ killer,’ ‘Worthless fuckin kike,’ and ‘slimy jewess,’ appeared among scores of other repugnant epithets.” (Other examples: “six million are only the beginning,” and, “You will be driven to the brink of suicide. & We will be there to take pleasure in your pain & eventual end.”)

Gersh reported that she received phone calls that “consisted only of the sound of guns being fired,” and that her family was targeted by similar invectives. On Twitter, one user tweeted a picture of an oven to Gersh’s twelve-year-old son, along with the caption, “psst kid, theres a free Xbox One inside this oven.”

“Since the troll storm, she feels like a completely a [sic] different person than she was before,” states the complaint. “Ms. Gersh has experienced panic attacks, goes to bed in tears nearly every night, wakes up crying nearly every morning, startles easily, feels anxiety and discomfort in crowded places, has had trouble leaving her home, and fears answering her phone.”

Gersh’s attorneys include a team from the Birmingham, Alabama-based Southern Poverty Law Center. The SPLC describes itself as “the premier U.S. non-profit organization monitoring the activities of domestic hate groups and other extremists” and claims that its litigation has “destroyed some of the nation’s most notorious white supremacist groups.”

The group’s “Extremist Files” database catalogs individuals and organizations at the vanguard of what it deems to be problematic and radical movements. Anglin is on the list.

“The First Amendment is blind to viewpoint…. The Court should only consider that Mr. Anglin is the publisher of a news website.” — Andrew Anglin’s motion to dismiss

Not long after the fateful “Unite the Right” march in Charlottesville, Virginia, the Daily Stormer began experiencing difficulty maintaining its presence online, and Anglin’s physical whereabouts similarly became the subject of speculation.  The website has been publishing at since late November, but Anglin remains at large.

His unknown GPS coordinates notwithstanding, Anglin filed a motion to dismiss the suit in early December, arguing that his posts are protected under the First Amendment. His attorneys include Marc J. Randazza, a First Amendment lawyer whose past clients include Mike Cernovich and members of the adult-entertainment industry. Randazza writes regularly about the importance of defending unpopular speech and has called the SPLC “a financially successful scam.”

“The First Amendment is blind to viewpoint,” Anglin argues in his motion. “Accordingly, the Court should only consider that Mr. Anglin is the publisher of a news website. In that role, Anglin looked at the public dispute between Gersh and Mrs. Spencer and took an editorial position. This position was ‘It is clear and obvious extortion.'”

Does Vileness Matter?

Over the past half-century, the Supreme Court has delineated several types of “unprotected speech.” While the First Amendment clearly safeguards so-called hate speech, what exactly falls outside the protection of the First Amendment — especially in the novel context of digital communication — isn’t always easy to discern

“Incitement,” for example, is not protected. But case law defines the word somewhat narrowly: In the 1969 case Brandenburg v. Ohio, the Supreme Court held that inflammatory speech cannot be outlawed unless it’s “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

screenshot of Whitefish, Montana, resident Tanya Gersh, who is suing neo-Nazi Andrew Anglin for trolling her on his website, the Daily Stormer
Tanya Gersh has sued Andrew Anglin for intentional infliction of emotional distress and invasion of privacy (screenshot via CNN)

In other words, for speech to qualify as “incitement,” it has to meet three separate criteria: 1) it must be directed at inciting lawless action; 2) the lawless action must be imminent; and 3) the speech must be likely to produce such action.

Gersh’s complaint does not point to the illegality of any particular communication from Anglin.  

Anglin has a plausible claim that his speech wasn’t directed at inciting lawless action. In his posts, he repeatedly warns readers not to break the law. His initial post, for example, admonished, “NO VIOLENCE OR THREATS OF VIOLENCE OR ANYTHING EVEN CLOSE TO THAT” and “Again — as always — don’t make any threats of violence and certainly don’t do anything violent. Don’t ever do anything illegal, ever. It is well within your rights to tell these people what you think of their actions….”

Gersh’s complaint alleges that Anglin’s plan to engage in an armed protest in Whitefish “belies” his all-caps exhortation against violence. But they’re not at all inconsistent: When his permit was denied, Anglin canceled the march. He appears to be keenly aware that he doesn’t need to break the law to inflict harm: He wages war through an accumulation of small cuts.

Gersh is a sympathetic plaintiff. The noxiousness of Anglin’s views, and those of his trollish followers, hardly needs explication. But Gersh’s complaint does not point to the illegality of any particular communication from Anglin: It was the aggregation of harassing messages, none directly attributable to him, that allegedly caused her harm. This is where Gersh’s case falters. Discrete instances of legal speech, no matter how putrid, do not add up to illegal speech. The First Amendment cannot be defeated by arithmetic.

Read Tanya Gersh’s complaint:

Tanya Gersh v. Andrew Anglin (complaint)

Read Andrew Anglin’s motion to dismiss:

Gersh v. Anglin (motion to dismiss)

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