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 said "Merry Christmas, you Christ-killer," while another repeated "Death to Tanya" more than 30 times. One message suggested that Gersh's 12-year-old son should crawl into an oven.
Gersh's lawsuit also cites other online statements by Anglin, including a call on his website for "an armed protest in Whitefish," the town where Gersh lives and works. And she claims that Anglin provided his followers with phone numbers, email addresses and links to social media profiles for Gersh, members of her family, friends and colleagues. She is suing him alleging 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 anti-Semitic speech as well as speech seemingly designed to discomfit or insult individuals, 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."
The court also has made it difficult, in the criminal context, to punish people for inciting others to violence. In 1969, the Supreme Court heard the case of a Ku Klan Klan leader who exhorted his audience to seek "revengeance" against officials in Washington, D.C., who supposedly were conspiring to "suppress the white, Caucasian race." The court overturned the Klan leader's conviction, ruling that a state may not forbid advocacy of the use of force or violation of the law "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." That is a deliberately high bar.
Finally, in 2015, the court held that a person could be criminally prosecuted for making a threat online only if he is "blameworthy in mind" — for example, if he intends to issue a threat or knows that his words will be viewed as a threat. The court overturned the conviction of a man who had posted on Facebook so-called "rap lyrics" with violent references to his wife, co-workers, a kindergarten class and law enforcement officers.
These decisions don't mean that victims of threats and harassment committed over the internet have no legal recourse. Federal and state laws against making threats apply whether the medium of those threats is a phone call, an old-fashioned letter or an email or Facebook post. In California, threatening or abusive behavior online could lead to civil or criminal action under a variety of laws, including criminal statutes prohibiting "cyberstalking" (which requires the communication of a "credible threat") and "cyberharassment" (which can take the form of repetitive emails or text messages designed to torment another person); long before the invention of the home computer, people who made crank phone calls could be prosecuted. Someone whose reputation has been falsely besmirched online can also take advantage of defamation laws or sue for "intentional infliction of emotional distress."
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.
That doesn't mean that those who claim they have been the victim of illegal or defamatory acts committed online shouldn't have their day in court. But there can only be one 1st Amendment.