$14M Judgment Recommended for Victim of Internet Trolling
A federal magistrate has recommended an award of $14 million in favor of a victim of internet trolling. Tanya Gersh, a real estate agent in Montana, sued Andrew Anglin, operator of The Daily Stormer website, alleging that she was the victim of an anti-Semitic troll storm.
Gersh’s case did not go to trial because Anglin failed to appear for a deposition. After responsible companies refused to host Anglin’s site, The Daily Stormer took up residence in the dark web and Anglin reportedly went into hiding. Citing the uncooperative nature of their client, Anglin’s attorneys withdrew from the case.
Gersh asked the court for a default judgment based on Anglin’s refusal to appear for a deposition. A magistrate recommended granting that motion but considered the evidence on its merits to determine the amount of the judgment that Gersh should receive.
Anglin is an admirer of Richard Spencer, the founder of the American Nazi Party. Spencer’s family and Gersh live in Whitefish, Montana. Gersh, who works in real estate, became involved in a dispute with Spencer’s mother after offering to help her sell commercial property in Whitefish. Gersh suggested donating the sale proceeds to a human rights group as a way to defuse tensions caused by her son’s actions.
In an article posted to his website, Anglin accused Gersh of engaging in a campaign of harassment against Spencer. Anglin decided to ask the website’s followers to engage in “an old-fashioned Troll Storm” against the Gershes.
Anglin published Gersh’s telephone number and home address on his website. He also published her 12-year-old son’s Twitter handle. Gersh asked his followers to call or message Gersh and her family members to tell them that they are “sickened by their Jew agenda.”
Website followers responded by deluging the Gersh family with “hundreds of threatening and anti-Semitic hate messages.” Gersh testified about the anguish that she and her family suffered while enduring a barrage of hatred.
The magistrate found that Anglin had engaged in atrocious, egregious, and reprehensible conduct. The magistrate recommended an award of more than $4 million in compensatory damages and another $10 million (the maximum permitted by Montana law) in punitive damages.
Whether Anglin has assets available with which to pay the judgment is unclear. He was recently ordered to pay $4.1 million after he failed to respond to a defamation lawsuit filed by Muslim radio host and comedian Dean Obeidallah.
“Trolling” is the act of making provocative comments designed to encourage others to react angrily. Trolls sometimes try to disrupt civil conversation on an internet forum by making controversial or offensive statements. Anglin extended the concept of trolling by encouraging his followers to send angry messages to Gersh and her family members, effectively starting a “troll storm.”
Even individuals whose ideas are offensive have a First Amendment right to express them. The law draws a distinction, however, between expressing an idea and intimidating or harassing another person.
Like other states, Montana criminalizes the communication of threats to cause physical harm. While Montana law establishes the right to bring a civil action against people who communicate threats, the law also allows individuals to sue when they are “injured, harassed, or aggrieved by a threat or intimidation” while “attempting to exercise a legally protected right.”
The Limits of the First Amendment
By communicating with Spencer’s mother about a proposed real estate transaction and the pain her son had caused in Whitefish, Anglin exercised a legally protected right. The First Amendment protects the expression of ideas. If Anglin had confined himself to criticizing Gersh, he would also have been exercising a legally protected right, even if he did so by using offensive language to express ugly thoughts.
Anglin crossed a line, however, by encouraging his followers to launch a troll storm against Gersh. While some forms of bullying might be protected by the First Amendment, advocacy of threatening action directed against another person is not. In his defense of Montana’s Anti-Intimidation Law against Anglin’s First Amendment challenge, the state’s attorney general affirmed that the law does not exist to suppress speech but “to prevent the type of intimidation and threats of violence alleged in this lawsuit.”
While other nations have stronger anti-trolling and cyberbullying laws, the First Amendment constrains laws that punish offensive political speech. As a general rule, however, the First Amendment does not protect threats of violence or other extreme acts of intimidation. For example, laws against harassment prohibit stalking and other intimidating conduct that targets spouses and people who were in a dating relationship. Those laws are relatively uncontroversial.
Laws that come closer to punishing political speech receive greater First Amendment scrutiny, but a federal judge ruled that Anglin’s speech was not motivated by Gersh’s political activity but by Anglin’s personal animosity toward Gersh, both because of the real estate dispute involving Spencer’s mother and because Gersh is Jewish.
The recent judgments against Anglin send a message about the ability to fight back against intimidation. Troll-storm victims should talk to a lawyer about laws in their states that might provide a remedy when they are targeted by abusive, intimidating, or threatening communications.