TROLL STORMS AND TORT LIABILITY FOR SPEECH URGING ACTION BY OTHERS: A FIRST AMENDMENT ANALYSIS AND AN INITIAL STEP TOWARD A FEDERAL RULE.

• Author: Calvert, Clay

ABSTRACT

This Commentary examines when, consistent with First Amendment principles of free expression, speakers can be held tortiously responsible for the actions of others with whom they have no contractual or employer-employee relationship. It argues that recent lawsuits against Daily Stormer publisher Andrew Anglin for sparking "troll storms" provide a timely analytical springboard into the issue of vicarious tort liability. Furthermore, such liability is particularly problematic when a speaker's message urging action does not fall into an unprotected category of expression, such as incitement or true threats, and thus, were it not for tort law, would be fully protected.

In examining the possibility of vicarious tort liability, this Commentary reviews the U.S. Supreme Court's "authorized, directed, or ratified" test for vicarious liability, which was established more than thirty-five years ago in the pre-internet-era case of NAACP v. Claiborne Hardware Co. The Commentary concludes by proposing a framework for vicarious liability when speakers urge action that results in others ' tortious conduct.

INTRODUCTION

In November 2018, a federal judge in Montana refused to dismiss Tanya Gersh's tort claims against Andrew Anglin for intentional infliction of emotional distress (1) and invasion of privacy (2) in Gersh v. Anglin. (3) Anglin, "[o]ne of America's most prominent neo-Nazis," (4) operates the Daily Stormer. (5) It has been described as "the Internet's most notorious neo-Nazi website, featuring sections including 'Jewish Problem' and 'Race War.'" (6) The Daily Stormer, as this Commentary explains, plays a pivotal role in Gersh v. Anglin.

Tanya Gersh, a Jewish real estate agent from Whitefish, Montana, (7) contends that Anglin, a "pale prince of extremism," (8) lived up to that moniker by sparking a troll storm (9) against her. The trouble began after Gersh and fellow Whitefish resident Sherry Spencer, the mother of alt-right leader Richard Spencer, (10) had a falling out over a possible real estate transaction. (11) The spat drew Anglin's attention after Sherry Spencer, who owns a commercial property, (12) wrote on Medium that "Gersh had tried to threaten and extort her into agreeing to sell her building ... and denouncing her son's views." (13)

Spencer's accusation prompted Anglin in December 2016 to publish on the Daily Stormer "Gersh's phone numbers, email addresses, and social media profiles, as well as those of her husband, twelve-year-old son, friends, and colleagues. Anglin asked readers to '[t]ell them you are sickened by their Jew agenda to attack and harm the mother of someone whom they disagree with.'" (14) One of Anglin's posts, which followed the all-capitalized heading "TAKE ACTION," read, "This is very important. 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." (15) Another implored, "Let's Hit Em Up[.] Are y'all ready for an old fashioned Troll Storm? Because AYO--it's that time, fam." (16)

According to Gersh's complaint, these posts and others by Anglin caused her to receive "hundreds of hateful and threatening anti-Semitic phone calls, voicemails, text messages, emails, letters, social media comments, and false online business reviews." (17) Among the messages Gersh received across different forms of media were:

* "Ratfaced criminals who play with fire tend to get thrown in the oven." (18)

* "We are going to ruin you, you Kike PoS [piece of shit] ... You will be driven to the brink of suicide ... We will be there to take pleasure in your pain & eventual end." (19)

* "Worthless fuckin kike." (20)

* "You filthy piece of trash. You are threatening an old lady. You worthless piece of shit. I hope you die, you worthless cunt. You stupid ugly bitch." (21)

This "tsunami of threats," (22) as Gersh's attorneys at the Southern Poverty Law Center labeled them, included ones of death (23) and "[m]any messages referenced the Holocaust." (24) According to the Atlantic, one email bluntly stated, "[a]ll of you deserve a bullet through your skull." (25) Furthermore, Gersh's young son, whom Anglin labeled a "scamming little kike" and a "creepy little faggot" on the Daily Stormer, (26) received hateful messages on his Twitter account. (27)

While clearly implicating free speech issues, Gersh v. Anglin is about much more than just hateful and offensive speech, which the United States Supreme Court has made clear is generally protected (28) by the First Amendment. (29) Rather, Gersh revolves around what is commonly called doxing. (30) Doxing typically involves "publicly posting private information as a form of revenge or punishment" (31) and occurs "when someone's personal information is shared on the Internet without their consent." (32) Through the lens of doxing, Gersh raises an important question that forms the heart of this Commentary--one which is sure to arise often in the digital era: When, consistent with First Amendment principles of free expression, should a person who urges action be held vicariously liable (33) in tort law for the resulting conduct of others who are not acting as his servants in an agency relationship? (34)

This question is especially contentious in cases like Gersh where the plaintiff does not assert that the defendant's speech falls into an unprotected category of expression, (35) such as incitement to violence. (36) In other words, if Andrew Anglin's speech is not an incitement to unlawful conduct under the test articulated by the Supreme Court a half-century ago in Brandenburg v. Ohio, (37) how can he nonetheless be held responsible for inciting the troll storm against Tanya Gersh? Ultimately, this issue was never fully litigated in Gersh because Anglin stopped defending himself and default judgment was entered against him in August 2019. (38)

Notably, Gersh was not the only troll-storm lawsuit against Anglin. Another case involved Taylor Dumpson. (39) In 2017, Dumpson became the first African-American president of the student government at American University. (40) On the day she assumed this role, "bananas with hateful messages were found hanging from nooses" (41) on campus. This incident sparked a review by the Federal Bureau of Investigation. (42)

The racism Dumpson confronted, however, was not confined to campus; it quickly spread online.

Dumpson sued Anglin for, among other causes of action, intentional infliction of emotional distress (43) after he posted her "picture and personal information online and exhorted his followers to harass and bully her, a tactic he has also employed against Jewish and Muslim targets." (44) As with Gersh, Dumpson alleged that "a troll storm ensued." (45) She contended that she "feared for her safety amid the relentless harassment, and was eventually diagnosed with post-traumatic stress disorder." (46)

As was the situation in Gersh, Andrew Anglin failed to defend against Taylor Dumpson's lawsuit and default judgment was entered against him in August 2019. (47) In brief, the crucial issue at the heart of this Commentary regarding vicarious tort liability for speech-sparked troll storms was never fully litigated or resolved in either Gersh or Dumpson.

With this background in mind, Part I of this Commentary examines Chief U.S. District Judge Dana Christensen's analysis of whether Andrew Anglin should be held tortiously responsible for the speech of others who harassed Tanya Gersh. (48) In the process, it also dissects Anglin's arguments against imposing vicarious liability and explores the vicarious liability standard developed in NAACP v. Claiborne Hardware Co. (49) more than thirty-five years ago. Part II then addresses, within a much broader First Amendment framework, the question of vicarious liability in other speech-based cases, as well as a possible dichotomy between ideas and instructions. (50) Finally, Part III concludes by suggesting criteria for courts to use when evaluating vicarious liability issues that arise at the intersection of First Amendment jurisprudence and tort law. (51)

1. GERSH, THE FIRST AMENDMENT & VICARIOUS LIABILITY: EXAMINING JUDGE CHRISTENSEN'S REASONING

   To better understand whether Andrew Anglin should, consistent with First Amendment principles of free expression, be held vicariously liable in tort law for the speech of Daily Stormer readers who targeted Tanya Gersh, it helps to unpack the issue into two sub-questions:

   1. Does the First Amendment give absolute protection to Andrew Anglin from tort liability if his speech does not fall into an unprotected category of expression, such as incitement52 or true threats? (53)

   2. If the First Amendment does not shield Anglin from tort liability, then what is necessary to hold him vicariously liable for the tortious speech of third parties?

   Section A addresses the first sub-question. Section B then addresses the second.

   1. Tort Liability for Otherwise Protected Speech

      Turning to the first sub-question--whether the First Amendment shelters Anglin from all tort liability if his speech does not fall within an unprotected category of expression--Professor David Anderson calls it sometimes "difficult to square the demands of the First Amendment with the methods of tort law." (54) This is particularly true when "the claim arises from the content of speech that would be fully protected by the First Amendment if it were not tortious." (55)

      Indeed, that was precisely the situation in Gersh', Anglin contended he should not be held tortiously liable because his speech did not fit into a category of speech that is unprotected by the First Amendment. (56) According to attorney Marc Randazza in his brief supporting Anglin's motion to dismiss, "[e]very word uttered by Mr. Anglin in this public dispute is protected by the First Amendment, no matter how many people find those views intolerable." (57) Notably, Judge Christensen, in fact, agreed that Anglin's...