Does Unleashing a Neo-Nazi 'Troll Army' Count as Free Speech?

In November 2016, a woman named Tanya Gersh spoke with Sherry Spencer—mother of the white supremacist Richard Spencer—about the problems she was causing in Whitefish, Montana, where the two women live. The rumor was that people were planning a protest unless she sold a building she owned in town, donated the proceeds to charity, and publicly renounced her famously racist son. In an email, Gersh, a realtor, offered to help Sherry Spencer find a buyer and even sent over a pre-drafted statement against the alt-right movement—all it needed was a signature.

Sherry Spencer did not take these suggestions, choosing to instead accuse Gersh of extortion on a Medium post in which she described Gersh's communications with her as "terrible threats." A link to the blog post was tweeted out by her son, and the feud was picked up by the neo-Nazi propagandist Andrew Anglin, who was attempting to form an alliance with Spencer as part of a broader effort to form an coalition of right-wing extremists. Anglin soon issued a command to his followers on his website, the Daily Stormer.

"Are y'all ready for an old fashioned Troll Storm?" Anglin wrote. "Because AYO — it's that time, fam."

Ultimately, the Daily Stormer published at least 30 articles about the incident, with the majority of them encouraging harassment of Gersh and her family, who are Jewish, according to the federal complaint that was filed in district court last April. That complaint describes what that "Troll Storm" consisted of: an email that said "Death to Tanya" 33 times and was signed by "Satan Your King," a phone call consisting solely of gunshots, and a deluge of other messages. According to the complaint, Gersh has since developed a physical condition called bursitis from carrying her shoulders a certain way because she's constantly afraid of being attacked.

Now, with help from the Southern Poverty Law Center, she's suing Anglin for invasion of privacy and infliction of emotional distress. The suit is notable because it could force the notoriously reclusive white supremacist out of hiding. It will also force a judge to decide whether unleashing a "troll army" is protected by the First Amendment—a question that the founding fathers obviously could not have envisioned.

According to Pete Simi, a sociologist studying extremism at Chapman University, lawsuits holding the leaders of a hate group accountable for the actions of its members are a longstanding tradition at the SPLC. In 1987, the group secured a $7 million victory against an Alabama KKK group after its members lynched someone. Soon after, it won a $12.5 million settlement against the leaders of the group called White Aryan Resistance, who sent a recruiter to Portland and were therefore found to have contributed to the murder of an Ethiopian immigrant there. Later, in 2000, the Aryan Nation had to forfeit their 20-acre headquarters in Hayden Lake, Idaho, after the SPLC sued them for shooting at a Native American woman and her son who they thought had come to attack them.

But in all these examples, there was a criminal conviction before a civil suit was filed. On top of that, no one has hurt or physically attacked Gersh or her family—a fact that experts say will make it difficult for the SPLC to win.

"I don't know how law enforcement could really rein in anybody in a situation like this," Roy Gutterman, the director of Tully Center for Free Speech at Syracuse University, told me. "It all depends on the nature of the language used to inspire people to send those nasty emails. It could fall under some general incitement principals, but then the second part of incitement is imminent lawless action, and I'm not sure we have that here."

Anglin seemed to know exactly how to tow the legal line without potentially crossing it. "AND AS ALWAYS: ABSOLUTELY NO THREATS OF VIOLENCE, SUGGESTIONS OF VIOLENCE OR ACTS OF VIOLENCE," he wrote in a December 2016 post. "DON’T DO IT. IT JUST GIVES THEM POWER. THEY ARE ALREADY CLAIMING THEY ARE GETTING DEATH THREATS, WHILE THE LOCAL POLICE AND THE FBI ARE DENYING IT AND THIS MAKES THEM LOOK STUPID. KEEP EVERYTHING ON THE LEVEL." The complaint claims this is just an attempt by Anglin to inoculate himself, but it inarguably makes it more difficult for the SPLC to win the case.

Planned Parenthood managed to win a legal battle that will almost certainly serve as precedent for this one. As Gutterman explained to me, in the early aughts the organization went after the American Coalition of Life Activists—a group that published a controversial set of "wanted"-style posters that, in an early version of doxxing, included the names, addresses, and photos of specific abortion providers. Planned Parenthood was ultimately victorious, with courts ruling that those posters counted as threats.

The stakes of the Whitefish case are high: A verdict against Anglin could substantially alter the arsenal of the alt-right. Trolls are encouraged by what's known as "online disinhibition effect," which is a fancy way of saying that they feel free to act online in a way that they wouldn't IRL and in public. As psychologist Pam Ramsden wrote for The Conversation in 2017, "For anonymous users, there are no repercussions for bad behavior. They are able to reveal aspects of their personality that are held in check by social etiquette and rules." But if a judge decides there are now repercussions for this sort of behavior, will those trolls just disappear? Conversely, what will happen if he determines that it's a free-for-all unless someone actually gets hurt or killed?

"He did make some pretty direct threats and suggestions to commit acts of violence that probably cross certain thresholds beyond free speech," the sociologist Simi told me. "I found the harassment angle pretty compelling. It's fair to say something needed to be done about this, but I think it's fair to expect an emboldening if [Anglin's] successful at wiggling out of this."

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