The founder of a neo-Nazi website who encouraged his followers to “troll storm” a Montana woman — who was then subjected to hundreds of abusive and anti-Semitic messages, including death threats — has asked a federal court to dismiss a civil lawsuit against him because his actions were protected by the 1st Amendment. It’s the latest, but certainly not the last, case to question whether the the balance the courts have struck between free speech and the protection of privacy and personal safety applies to the internet.
Andrew Anglin, the founder of the Daily Stormer, is a bully and a bigot. And it’s impossible not to sympathize with Tanya Gersh, the real estate agent targeted by Anglin and his followers after she was involved in a dispute with the mother of white nationalist Richard Spencer. According to the lawsuit filed on Gersh’s behalf by the Southern Poverty Law Center, she was inundated with hateful emails. One repeated “Death to Tanya” more than 30 times, while another suggested that Gersh’s 12-year-old son should crawl into an oven.
Gersh’s lawsuit says Anglin called on his website for “an armed protest” in the town where she lives and works. And she claims Anglin provided his followers with phone numbers, email addresses and links to social media profiles for Gersh, members of her family, friends and colleagues. Her suit alleges invasion of privacy, intentional infliction of emotional distress and violation of Montana’s anti-intimidation act.
Anglin has asked the court to dismiss the lawsuit. “The only thing he did was call for people to speak,” one of Anglin’s lawyers told CNN, “but people want to draw the line for speech they don’t like.” As for invasion of privacy, Anglin’s lawyers say that “the entire information defendant allegedly published about Ms. Gersh was publicly available.”
In the past, courts have rightly held that the 1st Amendment protects what Justice Oliver Wendell Holmes Jr. called “the thought that we hate,” including racist and insulting speech, so long as the speech at issue also makes a comment about “matters of public concern.” Seven years ago, Chief Justice John G. Roberts Jr. wrote that speech cannot be restricted “simply because it is upsetting or arouses contempt.”
These decisions don’t mean that victims of online threats and harassment have no legal recourse. Federal and state laws against making threats apply whether the medium of those threats is a phone call, a letter, an email or a Facebook post.
The problem, some say, is that these laws — and the way the courts interpret them in light of the 1st Amendment — don’t provide enough protection for people who find themselves harassed or “trolled” on the internet, an environment in which a person with a large following can share a single cruel or demeaning comment with thousands of people instantaneously, potentially inspiring a virtual mob to flood someone with hostile tweets or Facebook posts.
Some would argue that new laws should be passed to allow victims of internet trolling to seek recourse even if they aren’t the targets of clear threats or the victims of libelous statements. Another change might be to impose strict liability on individuals for the illegal acts of others who they have urged to “troll” someone. (Even as he told his supporters to contact Gersh, Anglin insisted that they not do anything illegal.) Finally, the Supreme Court could carve out an exception for the internet for some of its 1st Amendment doctrines — such as the idea that offensive or distressing statements are protected if they also comment on “matters of public concern.”
All these ideas assume that the internet poses a unique threat to privacy and personal dignity, one that justifies scaling back protections for free speech. It does not. The tests for speech should be the same regardless of where and how it’s conveyed. Otherwise, each step forward in technology could ratchet back the freedom to speak in this country, chilling disruptive speakers and technological innovators alike.
This editorial was written by the staff of the Los Angeles Times. It does not necessarily represent the views of The Lima News or its owner, AIM Media.