Page 26 - Delaware Lawyer - Fall 2019

FEATURE
Alexander Tsesis
In Defense of
How America
and Europe
differ in regulating
In Gersh v. Anglin,1 decided in August 2019, Chief District Judge Dana Christensen of the United States District Court for the District of Montana affirmed a $14 million default judgment for compensatory and punitive damages against the neo-Nazi website The Daily Stormer.
24 DELAWARE LAWYER FALL 2019
hate speech The decision came as a bit of a happy surprise for the field of hate speech studies. The Southern Poverty Law Center represented Tanya Gersh in a suit against the founder of the website, an avowed white supremacist named Andrew Anglin. Anglin had called for a “troll storm” against Gersh and her family on The Daily Stormer after Gersh, a realtor, discussed with Sherry Spencer the pos- sible sale of a commercial building she owned in Whitefish. Spencer is the moth- er of the white supremacist leader Rich- ard Spencer, who rallied supremacists in support of President Trump and was the principal organizer of the Unite the Right rally in Charlottesville. The building was facing boycotts related to R ichard Spen- cer’s views, but Anglin accused Gersh of trying to extort Sherry Spencer. In calling for a troll campaign against the Gershs, Anglin counseled his readers to “tell them you are sickened by their Jew agenda to attack and harm the mother of someone whom they disagree with.” The District Court observed that Anglin painted
Gersh as “acting in furtherance of a per- ceived Jewish agenda” and that he used “Holocaust imagery and rhetoric.” Con- tent assessment was necessary to identify the “700 disparaging and/or threatening messages.” Gersh sought damages for in- vasion of privacy, intentional infliction of emotional distress and violations of Mon- tana’s Anti-Intimidation Act.
Chief Judge Christensen, in an ear- lier opinion on the merits, rejected a mo- tion to dismiss, finding that Gersh was a private figure, that the attacks on her by Anglin did not implicate issues of public concern, and that applying First Amend- ment doctrines applicable to the content- neutral regulation of speech, the attacks on Gersh were not immunized from li- ability under the First Amendment.2 The opinion applied prevailing American First Amendment doctrines, and is an exem- plar of how hate speech cases are litigated in the United States.
Other than a few, judicially defined, low value categories of speech outside the First Amendment’s historical heritage of
Proportionality Analysis