The First Amendment right of free speech is expansive, but not absolute. If it were, libel law couldn’t exist.
Anyone who participates in acidic political debate on the internet should think about how far they can go in slamming, shaming, or skewering their ideological adversaries without causing serious trouble.
There are different kinds of trouble. Given today’s partisan climate, with crazies of all stripes out there, anyone who uses their real name in a political forum runs the risk of their home and/or office becoming the next Comet Pizza. I believe in posting anonymously and safeguarding identities. I think it’s unwise to use real names in political discussions online, but if some people choose to do that, I can’t help it.
Then there’s legal trouble. Andrew Anglin runs a website called Daily Stormer, an internet gathering place for Nazis, white supremacists, and such ilk. He traffics in hate. But in America, giving the Nazi salute, shouting “Heil Hitler!”, and chanting “Jews will not replace us” are protected speech. Obnoxious, but an exercise of First Amendment rights. You can’t do anything about it.
Tanya Gersh is a Jewish real estate agent and wedding planner in Whitefish, Montana, a physical gathering place of neo-Nazis and white supremacists. I’d never heard of Gersh, and you probably haven’t either, until she became a news item. That’s because Gersh is suing Anglin over his internet behavior.
Anglin is an ally of Richard Spencer, a prominent white nationalist — that’s what Spencer calls himself. If I call him a Nazi, he can’t do anything about it, because he’s a public figure. However, I’m not calling that asshole a Nazi; I’m just using this as an example to illustrate the legal point mentioned above.
Spencer’s mother lives in Whitefish. She and Gersh got into it. Something to do with Gersh informing Mrs. Spencer’s tenants their apartment building might become a target of protests against her son, or something like that. The details don’t matter.
Anglin didn’t like it, and encouraged his Daily Stormer readers to make Gersh’s life miserable. She received hundreds of hostile messages. For example, one harasser sent a picture of her face superimposed over a photo of Auschwitz’s gates; another left a voicemail consisting of gunshot sound, which doesn’t take much imagination to interpret as a veiled threat.
Gersh sued Anglin — for invasion of privacy, intentional infliction of emotional distress, and violating Montana’s anti-intimidation statute. Note there’s no libel claim in there. The point is, you don’t have to lie about someone to get sued for having a big mouth, which has relevance for anyone who indulges in online bashing in political (or other) forums. I’m not saying don’t bash when arguing over politics. Heck, that’s four-fifths of the fun. But here’s the thing: One, there’s a difference between bashing and inciting, and two, there’s also a difference between bashing anonymous postings and people using their real names.
These differences have legal consequences, and could make all the difference if you’re sued.
If I’m posting anonymously, and someone claims I have sex with farm animals, I haven’t been harmed. There’s no damage to my reputation, no interference with my business or personal relationships, etc., if nobody knows who I am. So I can’t take legal action. And rest assured I’m not the kind of person who would go to someone’s house to “settle things,” but some people might, which is why I don’t post under my real name and you shouldn’t either. (You may believe your comments are innocuous, but there’s no telling what might set someone off.)
Gersh wasn’t anonymous, and that’s what got Anglin in trouble. He posted her contact information and incited readers against her. In addition, he didn’t just criticize her, he incited his readers to attack her. As a result, she was harassed and threatened. That opened him up to legal action.
Gersh responded by going to the Southern Poverty Law Center for help. SPLC is a public interest law firm that tracks hate groups and tries to sue them out of existence. That’s how SPLC uprooted the late Richard Butler’s hate group from Hayden Lake, Idaho. Butler’s former neo-Nazi ranch there is now a peace park. SPLC is trying to do the same thing to Anglin, and if they’re successful, Gersh could end up owning the Daily Stormer website and domain name and shut it down.
Anglin’s lawyers have tried to get her lawsuit dismissed. They claim he’s not responsible for his readers. But if you tell someone to throw a rock through a window, and they do it, you should pay for the broken window. Anglin also claims his actions were “free speech.” But the law distinguishes between speaking and inciting; it was established long ago that yelling “Fire!” in a crowded theater isn’t protected by the First Amendment. Finally, they assert that Gersh is a “public figure” because she’s an activist, into order to impose a higher bar on imposing liability by forcing her to prove “actual malice.” That’s a little more complicated, but suffice to say Gersh isn’t who the U.S. Supreme Court had in mind when it required public figures to prove actual malice in the case of New York Times v. Sullivan, and the actual malice rule doesn’t apply in any case because Gersh isn’t suing Anglin for defamation. Nor would the actual malice rule provide Anglin a shield in any circumstances, by virtue of him having chosen to be a public figure, against a defamation lawsuit brought against him by a private person like Gersh, because the New York Times v. Sullivan rule doesn’t apply in reverse.
In March 2018, a federal magistrate refused to dismiss Gersh’s lawsuit against Anglin, so he ran his motion to dismiss by a federal judge, and was shot down again by the judge last week. That’s why this story is in the news again (read about it here and here). This doesn’t mean Gersh will win her lawsuit. She still has to prove her case. But she can produce screen grabs from Anglin’s website and harassing emails, and juries typically aren’t very sympathetic to neo-Nazi bullies, so Anglin’s goose is probably pretty well cooked by now.
For those who engage in political combat in internet forums, the lesson is that you can bash and insult, but inciting, harassing, or threatening are out of bounds; and when crafting ingenious insults, you can pretty much say whatever you want about anonymous commenters, because their anonymity protects them, but you need to be more careful with people who are posting under their real names. Calling them “stupid” won’t (or shouldn’t) get you in trouble (although it may engender hard feelings or even provoke stalking behavior and retaliation, so discretion is advised), but with real-name posters you definitely should lay off the animal sex insults unless that’s what they’re doing and you can prove it (to avoid defamation problems). Remember, you have more latitude with anonymous posters, because nobody gets hurt — and that’s basically the main point of this article. Anonymity keeps it safe, and renders it harmless play. If you’re in a forum of anonymous posters, and you take their remarks personally, you’re out of sync with the spirit of the forum and the game being played there. If political insults offend you, then maybe you should play golf or go fishing instead. Internet political jousting isn’t hate speech, it’s recreation, in the nature of a good old-fashioned saloon brawl. If you don’t want to get punched, and punch back, then don’t go into the saloon. Anybody who’s ever watched western movies knows that. This is a voluntary activity.
Gersh, by contrast, didn’t ask to be attacked. She may have known that her form of activism in a place like Whitefish against someone like Spencer’s mother would bring a certain amount of backlash down on her head. Nevertheless, she didn’t consent to being harassed and threatened. So far, two judicial officers have ruled that she can sue for that, and I have no doubt this decision will be upheld all the way up the judicial line. The legal principles behind it are pretty clear, and well entrenched.
I strongly advise against doxing or “outing” someone, or threatening to do so. When you remove an anonymous poster’s anonymity, you expose them to the kind of dangers Gersh suffered. That’s not without consequences. In the early days of the internet, doxing wasn’t specifically illegal, although it violated the terms of service of most hosts and service providers which could get you kicked out, but now it’s likely to be a crime under the cyberstalking and cyberbullying statutes that have been enacted to deal with the problems doxing creates for the victims. If doxing or outing leads to harassment or some sort of personal harm (like someone coming to your house), you could also get sued like Anglin, potentially for a lot of money, and because the liability arises from intentional behavior it’s unlikely to be covered by your standard homeowners liability insurance policy (if you have one).
But beyond the possible criminal and civil legal consequences, if there are going to be any rules at all in internet political combat, and pretty much nothing can operate without rules, then Rule #1 should be that you respect other parties’ anonymity and privacy. That keeps it safe for everyone. And no matter how fractious we may be in all other respects, we all ought to be gentlemen and ladies about this one thing, because it keeps civilized blood sport done as good clean fun from becoming savage and getting out of control. If you’re unable or unwilling to do that, then do yourself and the rest of us a favor by leaving the forum in question. If you can’t refrain and won’t leave, then the host should kick you out. If you’re so wrapped up in feeling wounded that you can’t see the sense of this, then seek counseling.
One last thing: You can say whatever you want about Trump because he’s a public figure. Yes, he grumbles about changing the libel laws, and rest assured the only person he’s seeking to protect from criticism is himself. But as things stand now, he can’t sue you for bashing him, and he’s certainly got it coming. Understand that the 67% of Americans who can’t stand him have no malice in our hearts; we merely disagree with his policies, which is our right, and feel disgusted by his racism, bigotry, lying, cheating, bullying, attitude toward women, etc., which is our duty as decent human beings. We’re also within rights to condemn the voters who elected him as idiots. That’s not libelous because it’s true. Finally, Trump can’t stand being criticized, he shouldn’t be a public figure, much less president. As Jimmy Carter once said, “In this job, you’re going to be criticized no matter what you do.” It’s simply the nature of the beast.
“Bile exists the gallbladder, passes through the cystic duct, gets released into the intestines, and, ultimately, winds up on the internet.” (New Yorker, Aug. 27, 2018)
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