Tanya Gersh, the Whitefish realtor who was the target of an anti-Semitic harassment campaign, was in court in Missoula last week for the latest in a series of hearings in her case against Daily Stormer publisher Andrew Anglin. The hearing concerned Anglin’s motion to dismiss, which challenges the grounds of Gersh’s suit and the constitutionality of Montana’s Anti-Intimidation Act, which Anglin is alleged to have violated. Absent was Anglin, whose attorneys say he isn’t living in the country. U.S. Magistrate Jeremiah Lynch ruled last month that the lawsuit could proceed without Anglin present.
Anglin’s attorneys have explained his absence from the courtroom with a slender paper trail meant to show he’s living abroad, including images of Anglin in foreign countries and copies of stamped passport pages — evidence that Lynch found insufficient to remove Anglin from his jurisdiction. A more important paper trail was overlooked: Gersh’s attorney John Morrison pointed out Anglin’s representation had failed to notify Montana Attorney General Tim Fox of their constitutional challenge to a Montana law.
When Anglin’s defense team, led by First Amendment lawyer Marc Randazza, filed a motion to dismiss in November, they were supposed to notify Fox of their challenge of the Anti-Intimidation Act, in order to allow the state an opportunity to respond. Lynch told Randazza that because of the failure to notify, the court would not address that aspect of the motion.
Anglin’s liability was still up for discussion. The defense argued that Anglin’s speech is protected, and that he isn’t liable for his readers’ actions. Randazza preceded his argument by stating how little he, personally, cared for Anglin’s speech but how deeply he believed in Anglin’s right to tell his readers to send a Jewish woman death threats. The Las Vegas-based Randazza threw in a joke about the chilling effects of holding Anglin responsible for his readers’ actions being even chillier than the Missoula night air when he stepped off his flight the night before.
Lynch grilled attorneys for both plaintiff and defendant on the constitutional questions and precedent at hand. What would constitute directing readers to action? How was Gersh a captive audience to telephone and email threats? And was she or was she not a public figure before Anglin targeted her?
Gersh was an individual engaged in legally protected activity and targeted by harassment, Morrison said, which affords her civil recourse under Montana law.
“We contend giving Twitter handles and a call to action is direction,” said David Dinelli, a Southern Poverty Law Center attorney working with Gersh. Anglin had doxxed Gersh and her family and told his readers to seek her out in person, published the Twitter handles of Gersh and her then-12-year-old son, and issued a call to action to his followers to harass them.
“We have no indication Anglin knew what his followers would do,” Randazza said during his response.
Har Shalom spiritual leader Laurie Franklin was in the courtroom, sitting near Gersh. Anti-Semitic hate speech also appeared in Missoula the day of the hearing and the next when plastic Easter eggs containing Nazi propaganda fliers were left at Missoula homes.
Lynch’s ruling had not yet been issued at press time.