By Marc Randazza
Andrew Anglin, a neo-Nazi whom many online publications refer to as a vicious online troll, is being sued by a Jewish citizen of Whitefish, Montana. Tanya Gersh accuses him of invading her family’s privacy, urging his supporters to attack her family with hateful and death-threatening messages, and unleashing an online anti-Semitic trolling campaign against her, her relatives, her 12-year-old son, and other Jewish citizens of the local community.
I represent Anglin in this suit. I realize that Anglin’s story is full of controversy, hate, and nationalistic views, which he reportedly spread among his followers. However, the court may be on the verge of creating a dangerous precedent when deciding this lawsuit. Anglin has every right to ask people to share their views, even if those views are absolutely abhorrent.
The First Amendment protects unpopular speech and I firmly believe that everyone deserves their constitutional rights to be defended. Even though it appears that the neo-Nazi movement is gaining momentum in the US and evoking public disturbances, this fact should not be used as an excuse to forget that Anglin’s right to freedom of speech is granted by the First Amendment. Restricting it in court will impose severe damage on free speech in America.
In Anglin’s case, it is the shitty price we have to pay for freedom. The lawsuit is supposed to enter the pre-trial stage in December, so we will have to see how this case unfolds.
See coverage of Andrew Anglin’s story in the December’s issue of The Atlantic magazine.
Last 5 posts by Randazza
- Murum Aries Attigit, Y'all - December 13th, 2019
- Due Process for Tsarnaev - Demanded by a Masshole - December 13th, 2019
- Randazza: Nothing is Straight in Boston - September 9th, 2019
- Randazza: Damn right we should get rid of birthright citizenship - October 30th, 2018
- Randazza: Vermin Supreme's Pony Horde Rides on Kansas (Popehat Signal Activated) - June 22nd, 2018
So this should be legal? Because no threat. The caller even says he won't touch her. So it's all good? Or at least protected? I don't buy that.
Apart from my emotional response, I think there is a legitimate carve-out. I am not a lawyer, so this might be one of those 1A myths. But I think that while you have the right to say whatever you want (within very strict limits) you don't have the right to repeatedly say whatever you want to me. Doesn't Rowan v. US Post Office say something like that?
So I can't legally keep calling you with the purpose of harassing (or "burying") you. That would be a criminal act, yes? And isn't that criminal act what Anglin asked his followers to perform?
I don't see this case as a clear cut free speech case, like so many others that appear on this blog.
Where is the line between incitement to violence and free speech? A more troubling example is the Army of God type screeds preceding the murder of Dr. George Tiller. Was posting his name, home and work address, and schedule, and all but publicly calling for his execution protected speech?
My argument is this: A reasonable person knows that violent, crazy people exist in this world. An unethical person with a tiny amount legal savvy knows that outright calls for violence is a crime, but publicly posting someone's personal info to a community of violent nutjobs with a wink-and-nod is just fine.
We all know what the intention of the "Army of God" type screeds were when they posted George Tiller's address and daily schedule,especially given the long history of violence towards doctors and clinics (not to mention a previous attempted murder on Dr. Tiller) Just like we all know what a mob enforcer means when he says "nice place you have here, shame if it burned to the ground in the middle of the night"
I'm of a mixed mind about these types of case, and they fall on a broad spectrum. I'm not sure how'd I'd like this one to be decided, but I'm glad a free speech advocate is making a robust case. Hope the decision is a good one, but I have no idea what that would look like.
I'm not the least bit interested in hearing about ongoing litigation from one of the litigators involved. This courthouse-steps soundbite is a complete turd. I'm dumber for having read it.
With every post Randazza reaffirms my opinion that he's a piece of shit. This opinion is based not on his choosing to defend Bad People, but for foisting spectacularly one-sided positions on a forum that's long been a place for actual analysis. And somehow, he's always on the side of the Bad Guy, even when they're not his clients.
Ken, why? Randazza's gone from shitting on the carpet to shitting on your couch. You're waiting for him to shit on your pillow before you show him the door?
I don't share your view. I may or may not agree with Marc's take on the case – honestly I haven't read his motion papers yet — but I'm always glad when the free speech argument in a case has vigorous representation, even if I don't agree with it. And I respectfully submit that you're being oversensitive to a rather mild post. Have you read Marc's other stuff?
If Anglin explicitly used the word "extortion" via Gersh, as has been reported, I sure as hell hope that's part of the suit. That, at least, is NOT 1A.
I will leave the elegant, complicated legal arguments to other people, and just say this: Randazza, you are wrong here. Doxxing someone and inviting your troll army to harass and threaten them should not be protected speech. If you think it should be, then you're on the wrong side. This is not a slippery slope, and this is not the "marketplace of ideas" which the First Amendment protects.
@Jon Marcus
That's the rub in these cases. Maybe each person calling this poor woman is committing a crime, but Mr. Anglin will claim innocence. He didn't instruct any of these people to commit a crime. No-sir-ree-bob, he had no idea that avowed white nationalists would harass and threaten a Jewish woman when he posted her name, phone number, and address on a Nazi website.
You see it's legal because he didn't hang a "kick-me" sign on her back, he just hung a sign that says "filthy, lying Jew" on her back and Nazis happened to kick her. Totally unforeseeable. /s
This case is trickier than Mark lets on.
Randazza may want to go over Ken's comments on United States v. Hal Turner if he needs a primer on what constitutes a threat.
How on earth does Whitefish, MT, population ~6,000, keep popping up in the news? First the Puerto Rico contract, yesterday the story about the "private" spy army being considered, now this lawsuit.
For a little resort town a little ways outside of Glacier NP, it sure does seem to be coming up in the national discourse a lot.
I for one am glad that Marc is out there, doing his best, protecting my right to tell the internet's finest "here is all his info, DON'T harass this middle schooler"
Nobody has the right to urge others to commit criminal acts against someone. It doesn't matter whether his urging is explicit or implicit.
There is a lot of room for the courts to crush this guy without setting any new precedent. 1A isn't a shield against the legal consequences of harassment, nor should it be.
Marc, the fights you're taking on say things about you, and I personally wouldn't want my actions and choices saying what yours are. Defending the rights of Americans in general by defending evil people in court has merit. Defending evil people in court because everyone deserves a competent defense before the power of the state has merit. Defending evil people to the public, and justifying that as a defense of individual rights, when that is transparently not the case, does not.
Casting your lot with the alt-right movement, or embracing white nationalism places a person on the other side of the culture war from me, but I can at least respect those that do for having the courage of their convictions. This thing that you are doing is not that. It lacks the moral courage, and fools no one.
Your words claim one set of beliefs, but your actions, your choices indicate another. You will have to pardon me for believing your actions.
I love the First Amendment, but IMHO, what Anglin did here is a targeted campaign of harrassment, and that's not protected speech.
Anglin has the right to have his website.
Anglin has the right to espouse his hidious and idiotic views.
Anglin has the right to stand outside her house wearing his big boy uniform and bray like the jackass he is.
This is not any of those things.
@SocraticGadfly:
Porque não?
@eric
The problem is what counts as implicit, if a BLM website names an officer involved in shooting an unarmed suspect and that officer subsequently gets harassed or attacked has there been implicit urging of anyone to commit crimes?
This is a civil case. For those commentators upset about this, perhaps you'd care to talk to the local prosecutor in Whitefish about some criminal indictments? You may find out why there's nothing to show against the guy in law. Then share it with us.
…and there, right on schedule, is the bogus slippery slope argument.
The names of police officers involved in shooting are matters of public record, and police officers involved in shootings are limited public figures. Therefore, publishing the name of an officer involved in a shooting doesn't put the officer in any danger the officer wasn't in already.
That is not what happened here.
Go look at what Anglin published about the people suing him. Look at what he openly admits to publishing. He published the name, address, and phone number of the victims and told his followers to harass them. Not implicitly. Not wink-wink-nudge-nudge. He was clear and explicit. He incited his followers to harass and threaten people, knowing full well that they would do so.
Brandenburg v. Ohio, 395 U.S. 444 (1969).
"inciting or producing imminent lawless action and [] likely to incite or produce such action"
Invasion of privacy, threats, etc. may be civil torts, but engaging in them is still lawless action.
There's a decent chance that this checks the boxes. Deal with it Randazza.
Whitefish doesn't have a "local prosecutor" qualified to handle a case like this.
There are quite a lot of white supremacists and "patriots" in Montana, so it's entirely possible that the prosecutor under whose jurisdiction this case would fall has no interest in prosecuting Anglin criminally.
It's also possible that s/he is an overworked, underpaid, inexperienced attorney who has no interest in taking on an incredibly controversial case likely to be appealed all the way to the Supreme Court.
It's also possible that, just as in most of the rest of the country, state legislators haven't figured out how to write laws making what Anglin did explicitly illegal and chargeable.
In short, there are a lot of reasons why Anglin hasn't been prosecuted criminally that are more plausible than "Explicitly calling on your internet followers to harass, intimidate, and threaten private citizens, when you know that's exactly what they will do, is speech protected by the First Amendment."
For people who would like to see what Marc's specific legal arguments are, you can read his motion to dismiss here.
The issue in the case is not whether the Nazis who made threatening phone calls committed true threats — it's pretty clear to me that many of them are true threats — but whether Anglin can be held responsible for them — that is, when someone who publicly criticizes a person, in whatever vile terms, can be responsible for other people reacting with true threats and other conduct outside the protection of the First Amendment.
Whether or not I agree with Marc's arguments or conclusions, when a litigant attempts to impose liability on a speaker for how third parties react to that speaker, I think it's essential that the First Amendment argument be made vigorously.
This is an area where the shift in our technological capabilities is so enormous, there needs to be a serious and thoughtful discussion about whether traditional First Amendment principles remain adequate. It was one thing to "ask people to share their views" two hundred or fifty or even ten years ago. Now it means a relatively small group of assholes or psychopaths can effectively take over your life.
It's not reasonable to suggest that anyone simply stop using the internet to avoid concerted harassment, and it will become even less reasonable as time goes on — for better or worse, it's too woven into our lives; people have to be online to do their jobs, get basic information, and stay in touch with others. And it's not reasonable to claim that concerted harassment is just words. There's a qualitative difference between receiving a few angry letters or phone calls from members of your community (whatever that community is), and getting dozens or hundreds of hateful messages and threats from total strangers in the space of a day. Enlightenment free-speech principles are grounded in the idea that expressing even a hateful idea can't hurt anybody seriously enough to warrant regulating that expression. But as we learn more about mental health, the evidence is mounting that this kind of internet attack has real, harmful and lasting consequences for victims. (And that's to say nothing of doxxing cases that lead to actual physical assault of some kind.)
This is new territory. I have always considered myself pretty close to a First Amendment absolutist, but the internet is a genuine paradigm shift, and the nature of paradigm shifts is that they affect bedrock principles. Free-speech advocates need to take this way more seriously than just trotting out the traditional platitudes about dangerous precedents and the shitty price we have to pay for freedom. If we don't get ahead of this, there's going to be a justified but heedless backlash, and that will really have serious consequences for our liberties.
There is a legal principle employed throughout the Talmud that is applicable here. In Aramaic, it's, "פסיק רישא דלא ניחא ליה", which transliterated is, "Psik reisha dloh nicha lay", which literally means, "If you cut off its head, will it not die?"
The idea is this: an act which would otherwise be permitted is prohibited if performing that act will inevitably lead to a prohibited outcome. In other words, you can't say, "Well, I did cut off the chicken's head, but I didn't actually intend for it to die, so you can't hold me liable for that."
Anglin knew exactly what he was doing. He intended the words he published to cause the plaintiffs in the lawsuit to be subjected to threats, harassment, and intimidation, he knew that would be the outcome of what he published, and it's clear to any reasonable person that that outcome was absolutely inevitable.
The First Amendment arguments in Anglin's defense are shit. If Randazza feels the need to make those arguments because of his stalwart support for the First Amendment, then fine, let him go make those arguments in court, where I hope and believe he will lose. But I and it seems a lot of others would appreciate it if he didn't also feel compelled to post about it here, pissing on us and telling us it's raining.
Marc, based on what I understand about the facts here I sincerely hope your client loses, and also gets a disfiguring venereal disease. But he should lose on narrow grounds related to his overt and direct harassment of the victim, rather than because saying mean things on the Internet is in and of itself a tort, and I trust you to make that happen.
Basically, I'm rooting for you to lose straight-up but beat the spread. Good luck! Ish.
I thought that "With every post Randazza reaffirms my opinion" would make clear that this isn't my first exposure to Mr. Randazza, here or on various op-ed pages.
This particular piece parallels the recent post about Trump's potential speech/incitement problems, which also pissed me off for its refusal to address all the angles. The big difference this time is that he's involved in the case.
I come here for thoughtful analysis, which, as counsel for one of the parties, he certainly isn't going to provide. I think it appropriate for him to recuse himself from blogging here on cases he's litigating.
It could be that I've just come into your living room with unrealistic expectations. I hope not.
I really want to like Randazza, and I suspect he'd be fun to get the proverbial beer with. But man, yeah — with each post or op-ed, I just feel increasingly like, Seriously? I understand it's the nature of the business to defend unpopular people, and I realize the availability heuristic comes into play too: The controversial stuff is going to be the stuff he writes about. Nevertheless, there's just something…off. The smell test is not passed. I get an unpleasant feeling reading him now, and it's not just because of the subject matter.
I don't think that means he shouldn't post here. Just adding my voice to the chorus.
"…Anglin’s right to freedom of speech is granted by the First Amendment."
No. No, no, no, NO, NO!
Anglin's right to freedom of speech is a natural right granted by his Creator. It is protected by the First Amendment.
Kalkin has a point. The goalposts have moved since the 1st Amendment was written.
It also has to be noted that legislation has a very hard time keeping up with technology, especially as the rate of change has been ramping up dramatically post-WW2.
But then again I come from a country where you can get prosecuted for 'hate' speech so YMMV. In the UK someone in Anglin's position (publicly known/admitted extremist, with extremist followers) doxing a 3rd party would almost certainly have the police round for a chat. I don't know what classes as incitement in the US – it could be argued that knowing AA and knowing his audience the very fact that he gives out details is incitement/harassment in itself.
Does anyone have links to the actual exhibits from this case, or to the actual contents of the statements at issue?
“We shouldn’t let the posting of someone’s contact information coupled with urging people to contact that individual add up to a crime or tort just because of the inevitability or even predictability that harassment would result, as that would rope in vast amounts of valuable political speech,” is not a crazy argument.
But based on last readings I do not trust the author to have accurately characterize the facts of the case, and would like to verify for myself that that’s all his client really did. I do think “hoho, whatever you do don’t harass this lady, haha, wink wink” can be validly interpreted as a call for harassment. Courts are not obliged to pretend to be stupid or tone deaf. I don’t think that merely posting on a Nazi site carries that message, but I do think it’s possible for that to be conveyed. So I’d like to see the actual statements being litigated.
I first realized this issue was going to the Supreme Court years ago, when Gabe of Penny Arcade started siccing his followers on some douchebag who made custom controllers and had shitty customer service. Anybody else remember that? It probably wasn't the first internet hate mob, but it was the first time I looked at one and thought, "Whoa, years from now when the internet is even more a part of everyone's life, popular figures who can use websites as force multipliers are going to be able to wreck ordinary private citizens with casual ease. How to hold them accountable for that or prevent it is going to be a real issue."
Anyway, here we are, post GamerGate, seeing this stuff go down with Nazis and death-threats.
I hope the plaintiffs win, but I think that doing so is going to require the SCOTUS to write a new common-law tort, and the plaintiff is going to have to have DEEP expert testimony at trial.
I realize that this is an enormous ask of the legal system, but I also think it's necessary, and it's going to need to be crafted with great care.
Here's the release the SPLC put out after filing the case:
https://www.splcenter.org/news/2017/04/18/splc-sues-neo-nazi-leader-who-targeted-jewish-woman-anti-semitic-harassment-campaign
There's a link to their complaint near the top of the article.
In attacking the plaintiffs, Anglin posted, among other things, "Let’s Hit Em Up. Are y’all ready for an old fashioned Troll Storm? Because AYO – it’s that time, fam." I.e., he explicitly called upon his followers to harass the plaintiffs, knowing that they would do so.
So some think it shouldn't be illegal to entice others to harass people? Does that also cover enticing people to burn down homes, murder the occupants, and kidnap their children? Is that covered by Free Speech?
Just where do you draw the line?
The First Amendment is there to protect political speech. Stirring up hate against people is hardly political speech and should not be tolerated.
I appreciate the SPLC's complaint, but I really would prefer the actual screen shots. I'm making a pitch for actual decision making involving actual context, so I shouldn't satisfy myself with quotes selected by the parties counsel unless I absolutely have no choice.
From Randazza's brief:
Plaintiff voluntarily participated in the planning meeting to protest and
boycott Mrs. Spencer’s tenants’ businesses. Id. at ¶¶56-58.
From Id. at ¶¶56-58.
56. About seventy residents of Whitefish gathered for a meeting during or around the week of November 13, 2016. Someone in the meeting proposed boycotting the businesses of Ms. Spencer’s tenants. Although the idea was swiftly rejected, talk of a boycott or protest nonetheless persisted in the Whitefish community.
57. Ms. Gersh heard the rumors of a possible boycott or protest and began to notice people driving past Ms. Spencer’s building. She even saw three or four people park, get out of their cars, and photograph the building.
58. Ms. Gersh grew concerned that a protest would actually take place, and she tried to warn several of her friends who rented space as commercial tenants in Ms. Spencer’s building.
"Voluntarily participated in the planning meeting" is an, umm, interesting, interpretation of the quoted material. It would appear that Randazza is actually taking his facts from the statements of Mrs. Spencer, rather than the Complaint. Perhaps he could cite appropriately.
Gonna read the brief before commenting on Marc's position or the case at all, but I'd just like to remind y'all that the government has the ability to determine exactly who made those threatening phone calls in a matter of hours. The fact that they won't demonstrates the incompetence and apathy of the agencies involved.
ChrisCM: Anglin himself reportedly, direct quote, accused Gersh of extortion. Libel is not 1A protected, period. And Gersh, as I see it, certainly isn't a "famous person."
Other notes: Dave — under the view of the Constitution, no. To assume natural rights are granted by a Creator is unconstitutional. Yes, the Declaration may say something otherwise, but it's not the Constitution.
Besides, WHAT Creator?
Another question: Has Gersh preferred criminal charges against Anglin? Or others? Based on content of at least some of the phone calls and emails, a stalking charge would certainly seem to be in play.
I know cops don't want to go to the hassle of tracking down IRL people using what may be "burner" phones/numbers, but still:
http://statelaws.findlaw.com/montana-law/montana-stalking-laws.html
Or, if Gersh has asked the the US district attorney about federal criminal charges: https://www.law.cornell.edu/uscode/text/47/223
"Stirring up hate against people" is classic protected speech and must be tolerated.
That's not what we're discussing here. What we're discussing here is overt incitement of criminal activity, with intent, targeting specific individuals.
@SocraticGadfly
When you organize a public boycott against a business, don't you become a limited public figure w.r.t. reporting and online discussion of that boycott and its context?
Marc, if you really don't want to set a dangerous precedent here, why not advise your client to settle out of court?
You acknowledge in your Motion to Dismiss that the communications that Ms. Gersh describes receiving are abhorrent and uncalled-for, and, even if you honestly believe that your client didn't intend for them to happen, they are clearly the result of his actions.
So why shouldn't he man up, apologize for the harm that resulted from his actions, put some money behind that statement, and make this whole thing go away? It'd be the right thing to do, it'd send the right message that freedom of speech is not freedom from responsibility, and there would be absolutely zero chance of it setting any legal precedent whatsoever.
What Jonathan said. That's why I posted links to Montana and federal criminal law in this area.
SPLC won't settle. They're not looking for a cash payout, they're looking for a precedent.
Their strategy "in the old days" was to get such a huge cash judgment from cases like this that the defendant would be impoverished and unable to continue their racist ways. They shut down the Klan in a number of states that way.
But (a) Anglin isn't going to be willing to enter into a settlement that will improverish him, and (b) given that he has been able to crowd-fund his defense in this lawsuit to the tune of $160k, I don't think the SPLC's old strategy of draining the defendant's coffers is going to work in this case. Hence my belief that there's no way they'll settle.
@SocraticGadfly:
You should probably email the SPLC and tell them, as quick as you can. Would you believe Gersh's Complaint asserts four different civil claims against Anglin, not ONE of which is libel? Or slander? Or libelslander?
It's a shocking omission for a storied public-interest law firm to omit the kind of slam-dunk legal theory you've laid out here in the comment pages.
The 1A says nothing about it. So it must be the "very narrow specific exceptions" the SCOTUS has established by precedent(s) that allows one to distinguish.
The malleability of the decision-making should pose problems, but somehow it does not. Not defending a Nazi will have a chilling effect, apparently. (Always chilling, never just tempering, or cooling)
Might be nice if some day a 1A advocate would argue a plaintiff's case the same way (And perhaps a victim of a Nazi), because supporting what is allowed by 1A should have some examples too
Yet, for some reason, contacting marchers employers and posting their name/address is okay? So what i'm hearing is that only if your particular ox was gored is it allowed to defend someone?
Ken White says December 5, 2017 at 9:58 am:
Yep. I read the Atlantic article and skimmed the motion to dismiss for the good parts.
Looks to me like Anglin (spit!) was shouting "Theatre!" at a crowded fire.
Whether anyone likes it or not, the First Amendment is only as strong as the protection it gives to cowardly creeps who think themselves clever.
Anglin may not be clever enough to realize who actually wins if the suit against him is dismissed. His past, present and future targets have the same First Amendment rights that he has.
I won't tolerate it. If you work for me and you go stirring people up like that, you are going to get fired. And I'll do my best to make sure you never work in this town again.
Was there a reasonable assumption — much less an explicit request — that they would face unlawful attacks as a result of those posts rather firings that were perfectly lawful, if inconvenient to Nazis?
Bruh. I don't think anyone here will dispute an American citizen's inalienable right to call Tanya Gersh's employer and complain that she…talked to a white supremacist's mom.
Read over half the brief, skimmed the rest.
IMO The SPLC/Gersh isn't taking him to court because of the claims she was trying to extort money because:
1. He never said she was convicted of extortion, he claimed she was trying to extort money. In an editorial. As a matter of opinion.
2. Would you, as a lawyer, advise your client to demand the court make some sort of finding of fact to determine if the behavior your client was engaged in amounted to extortion, knowing that the court might say 'yes, yes it was'? Would you, as the SPLC, risk your heroic underdog being compromised by such a finding?
The local police are incapable of investigation or unwilling to investigate.
Randazza's client is a Nazi and also kind of dumb
Unless the facts of the case are substantially different to those presented in Randazza's brief (possible) I'm unconvinced that this specific Nazi actually did anything wrong in a legal sense. If he personally made some of the calls, Gersh is welcome to present evidence to that effect. If he specifically called for Gersh to be harassed (send this community organizer mail telling her you think the decisions she's made as a community organizer are wrongbad isn't really calling for them to be harassed IMO), Gersh is welcome to present evidence to that effect. Otherwise I hope Montana has a robust anti-SLAPP statute, because this lawsuit looks like she's lashing out in panic and doesn't care who she hits.
But this is all just, like, my opinion though.
I'm glad you feel so strongly about not tolerating people stirring up hate, but you do understand that what you personally will tolerate and will fire someone for has piss-all to do with First Amendment law, right?
It is perfectly fine to provide a legal defense for anyone. Just that if the only way you can show the highest respect for 1A is by defending neo-Nazis who harass and threaten others, people might wonder if you are really doing it for the principle.
Is doxxing protected speech?
Here's what I know and believe. If the roles were reversed and Tanya Gersh was calling on an army of white nationalist followers to burn Anglin's house down with him in it, I'd place bets on you seeking to have Gersh's "speech" quashed and Gersh herself thrown in pound-me-in-the-ass federal prison on some charge. Your…fervent defense of the friends you associate with outside your cases convince me of this, as does your…shall we say, sketchy business practices that Ken defended you so ably on.
So your shill on behalf of your client is noted. I still don't think you're any better of a human being than Clark.
@Edward:
Reading the post in question (no, I'm not linking it because it has someone's home address on it, but it isn't hard to find), he described Jews as "a vicious, evil race of hate-filled psychopaths" and then:
– photoshopped Gersh's face into a Nazi attack poster
– told his followers to "call her and tell her what you think. And hey – if you’re in the area, maybe you should stop by and tell her in person what you think of her actions,."
– posted her home phone number and address
– posted her real estate agency's Google reviews page and told them to write reviews accusing her of extortion
– posted her husband's work phone number, address, and e-mail address and told them to "give him a call or stop by his office and let him know what you think of his wife’s behavior, advise him to get a leash on that hoe."
– called her son a "creepy little faggot," posted his Twitter account, and told them to "hit him up, tell them what you think of his whore mother’s vicious attack on the community of Whitefish"
Just a note on that last one: be starts the post by calling Jews "a people without shame" because, if all else fails, "they will attack your mother." No cognitive dissonance to see here, folks!
If you can't see the difference between the above and "send this community organizer mail telling her you think the decisions she's made as a community organizer are wrongbad," I doubt I can explain it to you.
Ooo, scary.
For those of you who are bashing Randazza, a question.
Anglin (who I'm not familiar with but sounds like he's a nasty prick) did to Dersh what Dersh did to Specer's mother. What Anglin did is bad but what Dersh did is ok?
If the allegations in Randazza's brief are accurate, it looks like there's nothing but assholes here. An asshole is an asshole no matter what team jersey they wear.
And it would seem that Anglin's actions are every bit as protected as Dersh's were…….
Anyone read NAACP v Claiborne Hardware yet?
This isn't established.
Better question- why are there allegations in Randazza's brief? Different civil rules in federal court than I thought?
I think…
I truly love freedom of speech. But, having been harassed actively (and still to some extent, she's still not in custody or mediated), the reasonable tolerance lines need to be drawn and have been drawn on when harassment becomes illegal. And should be, morally.
There are two questions.
One, does current law encompass or stretch enough to encompass this sort of incitement into something at least actionable in civil proceedings? Hasn't resulted in criminal yet (probably correct). But at least, civil.
Two, should society protect people against that sort of incitement, when the outcome is such harassment. Regardless of current laws and 1A interpretations.
I think the answers are a clear Maybe on one, and a clear Yes on two. Lawyers among us: be warned that the population is only so tolerant of legal wankery on the edges of serious social abuse, before we apply gross congressional fuckery to your ideas of constitutional limits. Everyone knows someone who's been abused badly via online harassment by this point. That has had peaks and valleys of communal societal response. One of the waves will result in legalistic interpretations getting stomped and laws changed to let law enforcement (criminal) and victims (civil) go after inciters and harassers more effectively.
Lawyers and to some extent judges ought to be more sensitive to that aspect of the practice of law…
Re specifics in the complaint.
The jurisdictional and service are purely legal questions.
I suspect that if the court finds its way past those, the "troll storm" WILL be found credibly to be incitement, however.
@Jonathan Kamens, to be precise, the term you meant was פסיק רישא ולא ימות? (p'sik raysha v'lo yamus) which translates "it's head seperated and it won't die". In Halacha, the clause is shortened to just פסיק רישא/p'sik raysha. The classic example is that plowing is forbidden on Shabbos (Sabbath). Dragging a piano in general would be permitted, but dragging a piano on soft ground would be forbidden, even if there was no intent to plow a furrow in the ground, because it is inevitable due to the weight of the piano.
A פסיק רישא דלא ניחא ליה (psik raysha d'lo nicha lei) is translated as "an unwanted p'sik raysha" and is a partial exception/exclusion to the rule of the inevitable following outcome being considered to be intentional (remember that psik raysha is a way to get around אינו מתכווין/ayno miskaven – unintended) . In a case where the act is a psik raysha but UNDESIRED, then the act may lose that automatic status and collapse back to unintentional. In the piano case, if by dragging the piano, the garden is ruined and the furrow is destructive/unwanted (lo nicha lei), it is possible that the act of plowing is relegated back to unintentional (as it really is) since the inevitable outcome is undesired.
It can get even more complicated when the act is neither desired or undesired; rather, the actor is apathetic. Then that is פסיק רישא דלא איכפת ליה (psik raysha d'lo ichpas lei)…
No, he didn't.
P.S. People tend to take you a bit more seriously if you make the tiny effort necessary to spell the names right of the people you're writing about, especially when they're right there in front of you.
I think the issue is less “should this be a First Amendment issue” than “has the prsecution framed it into being a First Amendment issue.”. With the Political Left (or large parts of it, anyway) having abandoned all pretense of valuing free speach, it behoves us to be sure.
@Avraham Adler thank you for the correction. I bow to your superior Talmudic knowledge.
"No, he didn't."
Actually, you're right. He didn't try to extort money from his victim like she did.
"P.S. People tend to take you a bit more seriously if you make the tiny effort necessary to spell the names right of the people you're writing about, especially when they're right there in front of you."
Well, then, I guess that makes attacking somebody's mother ok. Serious people also tend to take you a bit more seriously if you at least try to pretend to be at least marginally objective.
I remember the Dickwolves.
Allowing the neo-Nazi movement to rise to power in the US will impose vastly more severe damage on free speech, and not just in America.
I have a question for you, two questions in fact. Viewing history with the full benefit of hindsight, at what point during the rise of Nazism in Germany, between, say, the end of the First World War and the appointment of Hitler as Reichskanzler in 1933, should the ordinary non-Nazi citizens of Germany have stopped defending the Nazi's rights? At what point should they have begun to violently suppress them? Or should they never have done so?
The ordinary non-Nazi citizens of inter-war Germany, of course, did not have the benefit of hindsight. They didn't know what the Nazis were going to do. Probably most Nazis during this period didn't know, and perhaps many of them would have rejected Nazism if they had known. But we do have the benefit of hindsight. We know what the original Nazis stood for. We know what they did. There is no ignorance defense available here. To call Anglin a neo-Nazi is to assert that he understands and embraces that ideology.
If Anglin really is a neo-Nazi, then his views are beyond abhorrent. If Anglin really is a neo-Nazi, then he wants Gersh dead. He wants every member of Gersh's family dead. He wants every person in America, possibly the world, with the same genetic and cultural heritage as Gersh dead. And he is actively organising with other people who want the same things to bring them about. Contrariwise, if Anglin does not want these things, then he is not a real neo-Nazi. He's just a troll, a fake neo-Nazi, and also a useful idiot to real neo-Nazi.
I do not know whether we have yet reached the point at which we should start violently suppressing neo-Nazis. But the time to stop defending their rights is well past.
Ken, is there really no case law on inciting/procuring yrue threats?
@william the stout
What Mrs. Gersh did to someone else is immaterial to this case. If she likes, Mrs. Spencer can file charges against Mrs. Gersh and they can have a completely separate trial. The only way that could get Mr. Anglin off the hook would be if it's resolved first and establishes a relevant precedent.
I would like to add that IF the neo-nazi movement is gaining momentum in the Unites States a good deal of the blame can be laid at the door of the Political Left. If you call a mildly neo-Comservative Republican like Bush or a historically fairly Liberal populist like Trump ‘a new Hitler’ or make that comparison in other ways, you make neo-Nazis look better. Hey, if they’re like Bush, how bad can they really be? If you take to the streets and attack conservative speakers or protesters on the grounds that they are Fascists, A) that’s prtty Fascist of you and B) you devalue the insult. And if a small bunch of White Supremacists, Confederate Nostalgics, and Neo-Nazis get a permit to hold a protest and you come to fight instead of mock, then you have put them in the right. Until one of them runs people over with his car, admitedly, but I’ll gove you the benefir of the doubt and say you didn’t plan that.
@ BadRoad
"What Mrs. Gersh did to someone else is immaterial to this case."
Yeah, maybe. Look, would I prefer a world where screaming hordes of angry white supremacists and outraged leftists weren't careening around the internet harassing people? Yes, I'd prefer that world. But I can't have it. That fight is lost.
So given that, I'd like an outcome that protects my liberties to the greatest extent possible and provides some semblance of a reasonable outcome. Seems to me like Randazza is on both of those sides in this one, despite his clients being reprehensible.
On the first point, there are waaaaaaay too many folks on both extremes that are trying to limit our liberties as defined by the Bill of Rights, so I'd like the courts to rule in favor of those rights as expansively as possible.
On the second, Mrs. Gersh picked a fight and then when the other side punched back she decided she didn't really have the stomach for it, so she's trying to turn herself into a Martyr of the #Resistance. Tough noogies. Don't start something if you're not strong enough to stand the blowback………
Reading over the suit, I'm surprised that Anglin didn't even bother doing the "Don't harass this person whose contact info I just posted tee hee" boilerplate, he really just outright TOLD his followers to go stalk this woman and her family. Usually these guys at least try and maintain a veneer of plausible deniability, out of fear of exactly this situation happening. I'm so used to seeing it as subtext that I'm kind of dumbstruck seeing it as just… text.
It's kind of refreshing honesty, come to think of it.
…But then I remembered that Dylann Roof, James Jackson and Thomas Mair were all Daily Stormer regulars, so now – and this is probably attributing too much cunning and subtlety to the founder of the Daily Stormer, but still – I can't help wondering if maybe there was some hidden subtext to Anglin's call to arms after all.
@Richard;
"Unless the facts of the case are substantially different to those presented in Randazza's brief (possible)"
It says it, Richard. Right in the post, Richard. If you want to call Randazza out on being wrong in his brief, that's cool, but don't go all smug self-righteous asshole on me. And either link your source or don't, but don't pretend you're doing some grand justice by not posting it here.
Of course now that I've posted that bit above it's going to turn out that the bit he's talking about was mentioned later in the brief and I just didn't read it well enough. Either way, the "if you don't understand" bit at the end was unnecessary.
I wish you had cited SPLC earlier, so I could have known sooner that you're a feckless pile of shit.
SPLC did good work, once upon a time, but now they are a bunch of reactionary jackholes who work to find things to get outraged about.
You're a petty little fascist that is masquerading as some sort of defender of "the little guy." If you want to reduce speech protections to the lowest common denominator – if you want to restrict what people say so that even the most insane assholes won't use something said as an excuse to be thundering assholes – then you have just seen too it that no speech will be protected. Unless this nazi pile of shit actually told his followers to make threats and such, then he didn't incite shit. Doxxing (which I am long on the record as being very much against) is not, when relying on publicly available information, a criminal act. It might make you an asshole, but it isn't a crime and I would thank you for not trying to make it one, you thuggish pile of crap.
Is Marc's client an unimaginable asshole? You bet he is.
But guess what, bubba… Unimaginable assholes get the exact same protections you do.
"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all."
– H. L. Mencken
@C.S.P. Schofield
You have an amazing ability to weave multiple fallacies together. I do wonder if you're doing it on purpose to troll or if the fundamentals of logic are foreign to you.
Let's break down your argument.
P1: The "Political Left" has mischaracterized conservative politicians as being right-wing extremists when in fact they are not
• Here you are guilty of the fallacy of composition. Just because this is true of some people who could be described as "politically left" (no caps), doesn't mean there is a "Political Left" (caps)–this weird Borg-like amalgam you attack isn't real.
• Speaking of attacking unreal things, that is a straw man.
• I'm sure you can find some people on the internet who claim that Bush and Trump are comparable to Hitler. That doesn't make it a common belief. Even if Trump is "a liberal populist" as you claim, that doesn't mean that comparisons to Hitler are invalid (in fact, the populist part would be a clear analog to Hitler).
P2: The mischaracterization described in P1 makes neo-Nazis look better.
• This doesn't follow. You seem to be arguing that neo-Nazis are judged relative to conservative politicians. If people argue that Trump is analogous to neo-Nazis (which they have good reason to do considering his overt xenophobia and apologist attitudes toward neo-Nazis), that is a condemnation of Trump, not an endorsement of neo-Nazis.
C: The "Political Left" is somewhat responsible for neo-Nazis
• If people think that Nazis aren't so bad because the liberals they hate call Trump a Nazi and Trump is a pretty cool guy, those people are equivocating in a very strange way, as you are doing now.
As to the whole attacking protestors thing, you're once again guilty of the fallacy of composition. There are liberals who do terrible things. There are conservatives who do terrible things. But this doesn't mean we ought to isolate the terrible actions of an individual on the side we oppose and judge an entire political ideology based on that individual's actions. Likewise, we shouldn't engage in blatant whataboutism to defend the actions of those whose ideologies align with our own.
This post is a mess and probably full of errors and for that I apologize. It's late and I'm tired. I just hope, in the future, you reflect a bit on the things you say. If you're attacking "the Political Left" instead of a specific individual's actions, or a specific policy or belief, then you've already lost the argument. When you resort to rhetoric like that, you're no different than this Anglin guy.
This isn't a legal analysis, but one I find generally useful.
How would I feel if someone that was on 'my side' (aligned with my general political viewpoint and was attempting to advance causes I believed in) used the tactic in question.
In this case, if someone published the phone number and address (?!) of a 'truly despicable person' (in their opinion of course) and encouraged them (overtly or less so) to contact this person, and the person had a large audience making it likely that a huge number of folks would contact the person (presumably many of them would be less polite than others – and there certainly wasn't a plea to be courteous).
Well, the results is fairly predictable – a huge amount of folks essentially making the person miserable. It would essentially be distributed harassment. Not only do I think such a method wouldn't be tactically useful (ie: probably wouldn't make 'my side' look good or advance 'my cause' in the long term), I think it would be unethical as hell.
Do I think such speech should be protected (again, this is a hypothetical 'my side' I'm talking about)? No. This has nothing to do with 'hate speech' (which can be a pretty nebulous concept), this has to do with the logical conclusion of the speech. I would think that such speech would essentially be inciting harassment (distributed, as it were).
Now, are there conditions where such speech is actually pretty appropriate? Yeah, certainly. "XYZ politician is about to do this, contact them with their opinion." "XYZ corporation is doing this awful thing, contact them and let them know what you think about it." But some individual? (eg: "David Duke is a dick, here is his phone number, let him know what you think of him, oh yeah, here's his address to"). Meh, no, it's hard to construct a scenario when that is appropriate.
Be clear though, some politicians are starting to claim that people imploring them to contact them is incitement to harassment – nothing could be purer political speech (in my mind).
But if instead I said "XYZ corporation is doing a horrible thing – here is the cell number and address of its CEO, give him a call and let him know what you think about it." Yeah, that would be an invitation to harassment, not something that should necessarily be protected speech.
That being said, I certainly understand Popehat's instinct to be a free speech maximalist, and that often involves examples of abhorrent speech.
Searching "site:popehat.com nuremberg files" doesn't return any results, but I am curious regarding his opinion on that free speech issue. (background on that issue here: http://www.slate.com/articles/news_and_politics/jurisprudence/2015/05/neal_horsley_of_nuremberg_files_died_true_threats_case_reconsidered_by_supreme.html)
@C.S.P. Schofield:
See, the problem with doing the classic "called out on my arguments? I'll just run away somewhere else and keep repeating the same debunked points" is that it works a lot less well when you go up three posts on the exact same blog.
Vis, this:
Exactly the same shit I called you out for on the last Popehat Signal post. Fascism is a word which means things. Things more complicated than "takes part in political marches". I will post that entire damn definition post again if you make me. Do you genuinely not see the slightest bit of irony in complaining that people are "devalu[ing] the insult" in the same sentence that you call people "prtty Fascist"?
But ultimately, of course, the answer is that you do, and don't care, because you're not actually out to defend the definition of "fascist": you're just out to score points for your "team" by insulting the other "team" in whatever ways you can think of, regardless of how much sense they make. And that's why you can make absurd arguments like "comparing people to Nazis makes Nazis seem not so bad": what you actually mean is "I have no ethics or morality of my own, and if someone is saying Republicans are like Nazis, that means Nazis are like Republicans, and that's my team! And no one on my team can really be that bad, because they're on my team! Go team!"
Have you considered, at any point, treating the future of the world just slightly more seriously than your next football match?
@Scott Jacobs:
SPLC is representing the plaintiff in this case. Anything put out by them will necessarily be slanted in favour of their client (as Randazza's piece, above, is necessarily slanted in favour of Anglin), but I don't see how citing a press release by the plaintiff's attorney, when discussing the lawsuit which is the subject of the press release, makes someone "a feckless piece of shit."
"We had to become Nazis! The other side was being mean to us!"
On another poster's question about when Germans of the 1930s should have stopped respecting the Nazis' rights: there were lots of things that the Nazis did that were patently illegal and that they could have been prosecuted for but weren't without having to get to their foundational rights.
@ Patrick – Apologies. I didn't notice your response to me until this morning.
Mrs. Spencer authored a post on Medium late last year in which she embedded screenshots of emails from Mrs. Gersh that substantially document Mrs. Gersh's "activism" in trying to get her to sell her building. They even include a prepared statement that Gersh wrote for Mrs. Spencer to make, although Mrs. Gersh is kind enough to suggest that Mrs. Spencer change the phrasing to reflect her own words.
So Mrs. Gersh tried to organize a local "troll storm" against Mrs. Spencer (and profit from it!) and received as a result a national "troll storm" courtesy of Anglin. Remember the old saying about being hoisted on your own petard?
There's nobody to root for here – it's just activists flinging shit at each other – so I'm rooting for a decision that takes a broad view of civil liberties. That's the only way that you and I, as reasonable people, win. Or at least avoid losing………….
I see this all the time and I don't get it.
First of all, I see it from some people who were clearly crypto-nazis all the time and just pretending to be edgy libertarians. Pax Dickinson, for instance.
Second, I've been called all sorts of shit by idiot liberals for my stances — Nazi sympathizer, alt-right, paleocon, neocon — and I haven't been tempted to become any of these things. Nor have I been tempted to become any of the liberal things idiot conservatives have called me.
I mean, when alt-rights on Twitter reach the peak of their rhetoric prowess and call me a faggot, I don't go "hmm, oh well, since they're calling me that no matter what . . . ."
A little bit insane how on a blog with a central theme of Free Speech so many of the commenters are downright hostile to the freedom for people they don't like, or speech used in ways they don't like.
Is it really hard to grasp that the speech that will most often require defense on liberty grounds is speech that is unpopular or even reprehensible? If no one attacks the speech, why would a defense of it be required? This is why Marc and other First Amendment lawyers don't go soured defending the freedom of speech of the "nice" old lady around the corner demonstrating in her pussy hat. Nobody is trying to shut her down.
As far as "Nazis" are concerned, unlike much of Europe, here in the US, as long as they don't cross over into actual Nazi conduct, we err on the side of letting them speak. Do you really want a new McCarthyism, just this time targeting the other totalitarian sympathisers? I mean, you still see Che shirts in polite company, and he was as much of a mass murdering/torturing psychopath as anyone.
https://theintercept.com/2017/12/04/trump-white-house-weighing-plans-for-private-spies-to-counter-deep-state-enemies/
I mean, it's definitely ridiculous to compare an adminstration considering a proposal for an unaccountable secret police designed to root out political enemies to Nazis. That's just liberal populism right there.
@ William- At your recommendation, I searched for and located the story on medium.com.
Below is the link included in the medium article.
https://www.scribd.com/document/334219220/Emails
So what we have is this. At some point, Gersh posted something to a social media group stating that she was going to be involved in the sale of Ms. Spencer's property. This received four "likes" and two comments, one of which praised her for "stepping up." At a different time, someone else posted to that group proposing that "we," presumably the group, protest Richard Spencer's office.
This appears to be the entirety of what is being offered in support of the contention that Gersh organized protests and harassment of Ms. Spencer. Plus, of course, Mrs. Spencer's testimony to that effect, though unless she has additional basis for that testimony it doesn't add anything.
Am I missing anything?
The accusation that Gersh organized a "troll storm" against Mrs. Spencer and tried to profit from it appears to be unsubstantiated at this time, given the materials that have been offered to me by you and by the assertions of fact attorney Randazza included in his motion to dismiss under civil rule 12(b).
That said, before anyone misunderstands, what Gersh did or didn't do isn't necessarily relevant. As before, here and in other threads, I advocate for a substantive and contextual reading of anything claimed to amount to incitement, and no one has given me a court link to the material under dispute (I am not going to give the Daily Stormer clicks by searching for the material there, but I presume that it is an exhibit in the case).
Here's the Medium post by Sherry Spencer:
https://medium.com/@recnepss/does-love-really-live-here-fff159563ba3
It includes a link to some emails Tanya Gersh sent her:
https://www.scribd.com/lists/17863435/Emails
As you'll see if you check it out, this is some deeply threatening stuff. Gersh says awful things like, "Thank you for talking so openly with me today. I just can't imagine what you are going through." And: "I will have the public statement drafted shortly as well for you to review." And: "Due to the unusual circumstance surrounding this sale, I made the listing commission as low as my company would let me. … I plan to donate much of my commission to local Human Rights Networks, as my intention with this listing is not to do business, but to help our community." And: "I have so much respect for your decision to sell, no matter who you sell with."
Protesters and the media were already interested in Sherry Spencer, because her son is a leading figure in the white supremacist movement. She was already going to have trouble finding renters, because people don't want to give money to someone who might pass it on to support a leading figure in the white supremacist movement. Drafting a public statement, as Gersh did, is unusual, but not at all outside the bounds of what a real estate agent would do in a case like this.
If you think there's any equivalence here to publishing a stranger's contact info and siccing your online followers on them and their family, you might wanna talk to a mental health professional.
@william the stout
False equivalence. I do not recall reporting that Gersh's "local 'troll storm'" was comprised of people with tendencies to threats of violence and death.
"she and the local “human rights” organizations appeared to seek financial benefit from threats of protests and reputation damage."
is a bit different than
"The channers started memes and organized pranks that would later evolve into troll campaigns such as Gamergate, which targeted women in the gaming community with death threats and other abuse. "
and "In May 2016, CNN’s Wolf Blitzer had asked then-candidate Trump about the death threats and harassment Anglin’s army had leveled against the journalist Julia Ioffe after she wrote a profile of Melania Trump for GQ magazine" — to which he replied "I don’t have a message to the fans.”
Fanboi elsewhere, the analysis runs a bit deeper here. Protests are on one side of Brandenburg, death threats on the other, at least if the other elements are proved.
Since the Morris Dees Lifestyle Enrichment Foundation has on more than one occasion inspired its readers to go on murder sprees, I'm surprised that they are pushing for third party liability.
@Ken,
Well you did put "18" in your twitter handle.
Rule of Goats, and all that.
Most of the reprehensible stuff that Anglin said, I recognize that he has the right to say. He wouldn't have that right where I live, but that's beside the point.
Where he steps over the line is when his speech stops being insults and condemnations and when he's actually trying to get his followers to act.
Reprehensible speech may need to be protected stringently, but reprehensible actions most certainly do not, and telling someone to commit a reprehensible action is more the latter than the former. Someone who tells someone else to commit a crime with the expectation that they'll do it is no less guilty of that crime than the person who physically commits it — otherwise, you could hire a hitman to kill someone and face no legal liability yourself.
Was Gersh harassed by Anglin's followers? Yes, by any definition of harassment that I've ever heard.
Were Anglin's followers acting upon his instructions? Based on the post in question, that's not really in doubt. He asked them to contact her and tell her what they think.
Did Anglin expect his followers to stoop to harassment? It's much like Trump's "Don't hurt them" from his own lawsuit: he said not to, but given his followers' previous behaviour, he, at the very least, showed a reckless disregard for whether they would.
It's apparent that in the US, you have the right to say that someone is evil and subhuman just based on who their parents are. It's horrible, but that's the hill your country wants to die on, so so be it. However, that's not what this lawsuit is about. This lawsuit is about whether you, as the proprietor of a webpage, have the right to tell your readers to bombard a woman you disagree with, plus her business, her husband and his business, her children, and pretty much anyone else she associates with, with messages of hatred for a solid week.
I don't think that speech urging people to commit criminal behaviour should necessarily be protected. And, judging by the people who have gone to jail for murder (or attempted murder) after hiring someone to commit murder for them, that doesn't seem to be a controversial place to draw the line.
@ Patrick
Yeah, that's why I said "substantially documents" instead of "absolutely proves".
But ask yourself this – Mrs. Spencer appears to be a private citizen trying to keep a low profile relative to her infamous son. In responses to comments to the Medium article, she explicitly says that nobody (including presumably Mrs. Gersh) should be harassed or threatened. The emails demonstrate that Gersh was trying to get her to sell the building, and the suggested prepared statement demonstrates that Gersh was doing so from the standpoint of an activist. The only thing missing from Spencer's narrative are the explicit threats. The question is, what possible motive would Spencer have to make that part up?
If it looks like a duck and walks like a duck and quacks like a duck……….
You can't give the Daily Stormer clicks in any case. Their website has been taken down, since no one will host them.
That doesn't mean that the material can't still be found online; it just adds a few steps to the process.
william the stout says December 6, 2017 at 9:03 am:
Exactly.
Unfortunately, many commenters are too busy hating Marc Randazza to get that.
The most closely analogous example that I recall is the ACLU challenging the injunction against the National Socialist Party of America (sometimes called "the American Nazi Party") from marching in Skokie, IL in 1977.
The ACLU caught a lot of flak for that, and lost a lot of members who were outraged at the thought that such obviously evil people as neo-nazis actually have the same First Amendment rights as everyone else. But the the ACLU's position prevailed, and the First Amendment won.
If Marc Randazza's position prevails, the First Amendment wins.
No, it demonstrates she is a real estate agent. Real estate agents do all sorts of things when they're trying to get a property sold. This is only unusual in that it's already an unusual case. And the emails demonstrate that Spencer was on board with selling at one point.
It looks like Sherry Spencer agreed to sell at first, and then someone persuaded her to back out and that she shouldn't have to, and that Tanya Gersh was just trying to make money off of her situation (like, you know, those people do). Looking at it in the most positive light, I imagine that if you are suddenly in the national spotlight and you feel like you have to sell an expensive piece of investment property, you feel understandably angry and resentful, and at that point it becomes quite easy to decide you were threatened. I could see Gersh warning Sherry Spencer that there would be protests and media — which there would be, regardless of how Gersh felt about it — and Spencer interpreting that as a threat. People don't think clearly when they're under a great deal of stress.
Less charitably, claiming you were threatened is also a good way to try to get people on your side. The, uh, right wing of this country has been doing this for years with enormous success.
But I don't expect you to believe that. It certainly makes more sense that Tanya Gersh was really friendly and polite in all of her documented correspondence, but a monster at other times, and Spencer just doesn't happen to have any evidence or even a summary of what horrible things Gersh exactly said to her. Best to give the benefit of the doubt to the lady who raised the Nazi.
@ wiliam- I think you are massively over reading the materials provided.
No, the question is, what factual basis does Ms. Spencer have for that conclusion? Presumably the factual basis is the attached emails, given that this is what she offered when she wrote an article about the subject. But the attached emails don't do the job.
Ask yourself this better question- Ms. Gersh's position appears to be that Ms. Spencer contacted Ms. Gersh of her own accord, and asked for Gersh's services as a real estate agent in selling the building, presumably out of a desire to escape from a community situation that had grown toxic and rife with protest and harassment. What, from those emails, is inconsistent with that story?
Nothing, so far as I can tell. That she praises the social and community aspects of Ms. Spencer's decision? That's hardly surprising. That she suggests that she will cut her commission low and donate it? That's also not a surprising response to the situation. That she posted to a community group that by appearances was critical of Ms. Spencer and which contained one post that raised the possibility that the group might protest a different member of the Spencer family? Again, given that she was using the "community healing" aspect of this as a marketing tool, no, this isn't that surprising.
So. Might Gersh have been involved in coordinating harassment, or at least protest? Sure, nothing posted proves she WASN'T involved. She definitely could have been! Maybe Randazza has some amazing smoking gun on this issue that he really wishes he could utilize, but can't because he's just filing a 12(b) motion and the closest thing he can do to offering factual evidence in support of his 12(b) is make questionable citations to the other party's pleading. Maybe other evidence is out there.
But lets stop acting like her harassment ringleader status is just an obvious fact of the case given what we have available to us right now. It is not.
@ Kalkin, DRJ et al.
Sure. Just a helpful real estate lady. Why she even included "here's a nice statement I've prepared for you to release in which you disavow your offspring, but you can put it in your own words if you like. And here's a wonderful organization to which you can donate the proceeds of your sale". No real estate agent ever did that for me. Talk about full service!!!!!
Y'all are ignoring the obvious due to your distaste for her enemies. I don't care for her enemies either, but usually what things appear to be are what they turn out to be.
I'm trying to avoid paying the false equivalence or slippery slope game with the people here who either don't understand or refuse to acknowledge the possibility that there there may be a distinction between protected 1A speech and calling on one's followers to intimidate, harass, and threaten an individual, but I do want to comment specifically on this:
For the record, I supported the right of the Nazis to march in Skokie and supported the ACLU's defense of their right to do so.
Just as I supported the right of the Nazis to march in Charlottesville, and for that matter to hold a more recent rally on Boston Common, where I attended the counter-protest.
There is a huge difference between those cases and what Anglin did. If you understand that there is a huge difference and still think that what Anglin did should be protected speech, then fine, we can disagree on that point. But if you can't perceive and acknowledge that difference, then you are being either stupid or disingenuous.
But this is always the game: (1) We must give SO MUCH benefit of the doubt to the side that is perpetrating the outright racism and other hateful behavior. What possible reason could any of those people have to make something up? Yes, avowed white supremacists are coming to Sherry Spencer's aid, but that's pure coincidence. We cannot consider that as we assess what's going on here. And (2) we must see the folks on the other side in the worst possible light. Sure, Tanya Gersh says she was going to donate her commission, but why should we take her at her word? Sure, she put it in writing and was perfectly civil and compassionate in all of the correspondence we've seen, but that's just more evidence she has something to hide.
Jesus fucking Christ.
@Jonathan:
I think that it's inescapable that, at some point, exhortations to followers to attack someone crosses into unprotected speech under Brandenburg and its progeny, or (depending on phrasing) as a true threat.
But it's not clear where the line is — and nearly everyone wants to manipulate that line. Take, for instance, the alt-right, which has taken advantage of the FRC shooting to argue that the SPLC itself is engaging in incitement by naming hate groups, or the NRA, which is posting videos suggesting that BLM and liberals in general are engaged in incitement.
It's a very important line, and it's important that, when courts draw it, both sides are represented by competent counsel. Otherwise you get a line drawn angrily or clumsily, influenced by disgust at the horrible conduct involved (like in this case), and then that badly-drawn line gets weaponized against others.
@ William-
You keep acting like all of this is some wild, crazy thing. But it all seems perfectly in keeping with the scenario of "woman who is not a Nazi is being harassed because her son is a Nazi, and is electing to sell her property and exit the community to avoid the harassment." "I am not a Nazi, I don't support Nazi stuff, and I'm donating money to this charity that proves I'm not a Nazi" is like… pretty normal. I don't think Ms. Spencer HAD to do that, but I am 0% surprised that it was on the table and don't think that Gersh's involvement in that is suspicious.
The only reason I wouldn't do that if I were in her shoes is if I needed the money (which she's totally allowed to do).
You act like its just stunning that anyone would suggest that Ms. Spencer disavow her son, Richard Spencer. The guy is an actual Nazi, or at least an actual wannabe Nazi. Lots of people would disavow him and his politics.
Oh, have you sold a lot of properties that were under protest because your son is a nationally known white supremacist? Our agent did a ton of stuff for us, from painting when we were looking to sell, to helping us draft letters to sellers when we were looking to buy. Maybe you need to find a better one.
Did you read the statement? "Disavow my offspring" is a pretty strong interpretation!
"I am making a statement today about the sale of my building in downtown Whitefish and announcing my disagreement with the beliefs of the white nationalist 'alt-right' movement, of which my son Richard is an active spokesperson."
"However, I have recently come to believe that because of my son's activity and leadership in the white nationalist movement his presence in Whitefish is hurting the people here."
"As a mother, I hope that my community understands that I love my son deeply."
Is there a line I missed? Is there somewhere where the statement makes it sound like Sherry Spencer has renounced her son as a human being? Or does it just state that she doesn't agree with his decision to lead a white supremacist movement?
Again, though: One side gets all the benefit of the doubt, even when they openly call for the extermination of certain human beings. The other side — we need to doubt even what they explicitly say. "I love my son deeply" is just code for "This realtor wants me to say my child is garbage with no redeeming value."
@Ken I don't disagree with any of that.
But Marc's statement above doesn't say that Anglin deserves competent counsel for the benefit of preserving the First Amendment.
Marc says that Anglin's speech is 1A-Protected.
And IMHO that's just patently self-serving bullshit.
And please don't tell me, "Well, Marc has to say that. That's part of what being competent counsel here means." He has to say that in court. He doesn't have to say that here.
And if, for whatever reason, he feels like he needs to say that here, then I feel like I need to call it out as the patently self-serving bullshit that it is.
@Kalkin and Patrick
Again, though: One side gets all the benefit of the doubt, even when they openly call for the extermination of certain human beings. The other side — we need to doubt even what they explicitly say. "I love my son deeply" is just code for "This realtor wants me to say my child is garbage with no redeeming value."
We've got two very different stories from two people, and none of us were there. I'm not giving anybody any benefit of any doubt, just drawing a conclusion from what I can find in the public record. I mean, if you think about it, there's no proof in the record that Mrs. Gersh received any threatening emails, phone calls, voice mails, etc beyond allegations from Mrs. Gersh's lawsuit. But none of us (including me) doubt that those things did occur. I'm drawing the same conclusion from Mrs. Spencer's side because I can't see any reason for her to make that up. If this had been a simple case of a client engaging a real estate agent to sell a property and then changing her mind, none of us would ever have heard about an of this because there's no reason for Spencer to take it public and therefore no reason for Anglin to attack.
Reasonable people can draw different inferences from incomplete data in good faith. I think that's where we are here and we've reached the stage where both of us are running out of ways to explain our reasons for our conclusions, so I'll drop it and cede the field to y'all.
I did think about it, and it is definitely reasonable to assume that the SPLC's complaint documents a bunch of made-up bullshit. I bet they devoted many hours to concocting this stuff because it never occurred to them that they'd need to produce the actual emails and texts and tweets in court. Gah! Shouldn't have let the intern handle this one!
It is indeed totally reasonable to only believe things that anyone can find directly uploaded to the internet; we can't make basic plausible assumptions like "These materials exist, even though I can't link directly to it, because a bunch of attorneys and court officers have obviously spent a good deal of time dealing with them." And no one can even imagine a reason Sherry Spencer would misrepresent something. There is nothing we can do here but agree that nobody really knows anything, and that the guy who described Tanya Gersh as "try[ing] to extort money" and wanting Spencer to "disavow [her] offspring" is just a dude trying to draw inferences in good faith. YEAH, I WOULD CEDE THE FIELD TOO. Asshole.
Years ago, Bob Angleton, a bookie in Houston, offered to pay his brother, Roger, if he would kill Bob's wife, Doris. While Bob was coaching his twin daughters' softball team, he sent Doris home to get some bats and Roger was waiting for her and killed her.
They were both arrested. Roger committed suicide in jail waiting for the trial and Bob was found not guilty by a jury who apparently thought that Bob was probably guilty but the prosecutor didn't prove it to their satisfaction.
If it would not have been protected under the First Amendment if Bob had simply told his brother to go kill Doris, then why should it be protected for the white supremacist to tell his disciples to harass the woman?
Kalkin, I tried to be nice but you're just not willing to play that way.
So, it's your assertion that the SPLC has made an accusation of harassment in court that they wouldn't make if they couldn't document it, but that Randazza has made an accusation of harassment in a filing in response to the SPLC's lawsuit that he obviously doesn't have the ability to document? That's what you're saying? And I'm the one giving the benefit of the doubt to one side?
No logical consistency points for you. Take off your "yay my team!" t-shirt and shove it up your ass, dumbass.
Jonathan Kamens says December 6, 2017 at 10:39 am:
Of course there is a difference between this case and National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977).
The analogy is imperfect, as most analogies are. That is why I recognized that imperfection. I wrote "The most closely analogous example that I recall …"
"Most closely" does not mean "perfectly".
Close may not count except in horseshoes and hand grenades. But I did acknowledge the imperfection of the analogy to the Skokie case.
I have no love for Anglin, and I find his speech reprehensible. I also think that his speech deserves every scintilla of First Amendment protection that Marc Randazza or anyone else can persuade the courts to give it.
As I stated previously, Anglin himself may not even understand the implications of winning a dismissal of the civil case against him. A dismissal on First Amendment grounds will mean that his worst enemies are free to use similarly reprehensible speech against him. He may have to learn the hard way to be careful what he wishes for.
This reads like an advertorial. Did Randazza pay for this placement on behalf of his client? There's no insight here, it's just HAY THINK ABOUT MY CLIENT FROM THIS POINT OF VIEW. This is not what Popehat is about. Is it?
It's not an "imperfect" analogy. It's a terrible analogy. It's not at all closely analogous. And I stand by my previous statement: if you truly think that it's a legitimate analogy, that you're being either stupid or disingenuous.
This, also, is an incredibly stupid thing to say. It's so stupid that I wasn't going to bother responding to it, but since you've gone ahead and repeated it, I suppose I must.
Anglin is a Nazi. If you don't understand what that means, go read what Yonatan Zunger has to say about it. Nazis are willing to do things to their "worst enemies" that their worst enemies would never in a million years be willing to do them; that's inherent in the Nazi ideology.
Anglin doesn't have to worry about his enemies doing to him what he did to Gersh, because his enemies wouldn't pull that kind of shit, because it's wrong and they have morals.
Want to prove me wrong? OK, sure, go ahead and find me a case on the internet of an enemy of Nazism with a following the size of Anglin's saying about a Nazi the kinds of things Anglin said about Gersh (it's right up there in an earlier comment, so you can read exactly what he was he said), posting the kind of photoshopped images Anglin posted of Gersh, and calling on their followers to do what Anglin called on his followers to do to Gersh, and then their followers going ahead and doing so.
If this fear of yours that a victory for Anglin would enable his worst enemies to do to him the kinds of things that he did to Gersh… If Anglin's worst enemies were really willing and able to do that… Then why wouldn't they already be doing it? Why would they need to wait for a court to rule that it's protected by the First Amendment? Anglin didn't wait, did he? Why would they need to?
If Anglin wins, it doesn't legitimize the kind of things that Nazi-haters do to Nazis. It legitimizes the kind of things that Nazis do to everyone who isn't a Nazi, most commonly to Jews and Blacks.
The whataboutism and drawing of false equivalences here between Anglin and the people who hate him is just appalling. HE'S A FUCKING NAZI.
Mr. Randazza, I know you're capable of quality writing, but this post isn't it. You presented no logical argument based on facts or values, just a series of platitudes strung together.
The same is true now. But my question wasn't what should the German state have done, but – given that the state wasn't doing these things – what should ordinary German citizans have done?
@William the Stout
People demonstrated that things appeared to be different than the way you were explaining them. Then you argued:
When you're defending Nazis—supposedly because of principles regarding freedom of speech—it helps to be consistent. Otherwise, it appears as if you're defending Nazis for reasons that have nothing to do with fundamental, Constitutionally protected rights.
When one line of reasoning fails to defend Nazis, it would behoove you to concede rather than flip your strategy.
I don't give a fuck what some feckless dillhole has to say. Anglin has the full spectrum of rights that you have. Unless you're willing to start having your rights stripped away, you have to support the full rights for people you don't like. That's how a liberal democracy works, how it thrives, how it survives. Literally (not figuratively) any other position is support for at least some level of authoritarianism and/or fascism. That you don't grasp this tells me lots about you.
You are dismissive of rights, so long as you don't like the person. That you haven't thought "what if this ethos was applied to me and what I think/say/do" tells me that you magically think that you will never find yourself on the wrong side of public opinion.
I don't care that Anglin is a Nazi. It's actually not a crime to be one in the US.
I guess you were not aware that this exact thing happens a lot in civil suits, often in the hope that the process is the punishment. Also the SPLC is not above exaggerating or misrepresenting things to further their position.
Some of the harassment is documented in the article from the Atlantic linked in the OP, and I would think that the reporters would ask to see the evidence themselves (if for no other reason than to quote the e-mails and voicemail correctly).
So it's almost certainly not all a bunch of made-up bullshit.
Jonathan Kamens says December 6, 2017 at 12:53 pm:
OK. I'm stupid.
Although I am stupid, I am glad to know that I can I write something once without your supposing that you must respond to it.
As I recall history, the actual Nazis, the NSDAP, discovered that their worst enemies were quite willing to wage a war sufficient to reduce them to unconditional surrender.
Requiring "a following the size of Anglin's" is a very high burden.
I am, however, familiar through personal experience with persons who, like Anglin, were too smart by half. Each thought he could libel, stalk, sue and even assault various perceived enemies. Each was reduced to rubble, one to being a convicted criminal owing thousands of dollars in civil judgments, another to merely owing thousands of dollars to a defendant that he was foolish enough to sue in propia persona.
Fear? Watching the show with popcorn is fear?.
If Anglin's speech is adjudicated to be protected by the First Amendment, then anyone, whether they hate Anglin or just find him obnoxious or dangerous, is free to use the same tactics against him, whether they have done so previously or not. Anyone might be one person, or thousands.
I stupidly do not underestimate the power of even one sufficiently motivated person to right a wrong. In the case of Anglin, there may be many determined persons whom he has harmed over the years. One or more may find a way to use his own tactics against him.
@Scott Jacobs
I completely agree. I also think that it's more likely than not that Anglin crossed a threshold that Jonathan Kamens, Tanya Gersh, and most others have not. Just because he has the same rights doesn't mean that he is in the same circumstance.
I completely agree. But I don't have to support Anglin. I don't have to argue against Brandenburg v. Ohio when I agree with it, and I don't have to argue for Anglin when I think that he crossed the Brandenburg threshold.
Oh, oh! now characterize me instead of selecting out-of-context statements from Kamens' post. Everything else that he's posted appears consistent with the above, but you're so focused on the shiny object that you apparently can't consider anything else.
Jonathan Kamens:
Scott Jacobs
I see nothing to indicate that this is true. He is quite clear that his position is predicated upon Anglin being a Nazi, which is not synonymous with "person I don't like". Moreover his link to Zunger's piece, whether or not you agree with it or think its author a dillhole, clearly indicates that Kamens uses the word, as I do, to mean something other than "person I don't like".
Kamens is a name of Jewish or Slavic origin, both of which groups were viewed by the historical Nazis as subhuman vermin to be exterminated. To paraphrase my remarks above, If Anglin really is a Nazi, then he wants Jonathan Kamens dead. He wants every member of Jonathan Kamens' family dead. He wants every person in America, possibly the world, with the same genetic and cultural heritage as Jonathan Kamens dead. And he is actively organising with other people who want the same things to bring them about.
While it's certainly true that Jonathan Kamens doesn't like Nazis, I suspect his position is predicated more on rational self-interest, than personal dislike.
I would suggest that it is precisely because he has thought about the consequences of Nazi ethos being applied to him that he has taken the view that he has.
If Anglin's speech is adjudicated to be protected by the First Amendment, then anyone is free to use the same tactics against me, and I would have no legal redress.
I wouldn't be able to use his own tactics back against my attacker. I don't have the social power to sick thousands of trolls onto anyone. I might not be able to find his dox. That someone else might be able to do what I could not would be cold comfort in that situation.
Daran says December 6, 2017 at 4:16 pm:
"Legal redress" is extremely difficult if your attacker is in another country, or is skilled at avoiding service of process.
You might be glad to learn that there are many people with the technical skills, or "social power" that you say you lack; and some may be willing to assist you.
There are entire internet communities of people who delight in fighting and righting all manner of wrongs, from spam to obnoxious and dangerous internet miscreants.
If someone is attacked and reaches out to friends, who reach out to friends, etc., a group of paladins will often assemble fairly quickly.
You also underestimate the expenses, frustrations, and time and effort required for "legal redress". Lawsuits are generally expensive; usually take a very long time to conclude, and much effort to prevail. Even when you prevail you may be dissatisfied with the result.
Best of luck with this case, Marc. From what I understand, Mr. Anglin holds abhorrent views, spreads them in horrible ways, and rallies others to do the same. I thoroughly condemn him and his actions.
However, the right to free speech is, with very few and narrow exceptions, sacrosanct. From what I understand, he has not entered into one of those few and narrow exceptions. Thus, while he should face social consequences and be broadly shunned and condemned, he should not face penalties under the law. To penalize him under the law would create horrendous precedent.
Thanks,
Marc,
If you're taking Andrew's money, I think you're ethically obliged to give a little better than this thin soup "I disagree with what you say, but will defe……" position.
People read his writing and keep coming back for more because it's cathartic and hilarious, precisely because it skewers begrudged taboos. Poking holes in false idols is a progressive imperative. Who wants to be on the side of the old guard stewing over lack of reverence for their outdated "holy of holies".
As I recall history, the actual Nazis, the NSDAP, discovered that their worst enemies were quite willing to wage a war sufficient to reduce them to unconditional surrender.
Why, yes, they did discover that: they discovered that in the suburbs of Moscow in December 1941, and outside El Alamein in 1942, and they fucking discovered that, you pathetic moron, on the beaches of the Cotentin peninsula in 1944. But they didn't discover that, you abominable shithole, until they'd already slaughtered ten million Jews and other "untermensch." But they did, eventually, discover it, and they were better for it, at least those who weren't already incinerated corpses.
Fantastic comparison. I'm sure this greasy extortioness not getting to shut down public notice of her creepy behavior is going to cost us 6 gazillion innocent souls due to unchecked resurgent murderism.
That post is why you're not invited to social functions.
Since I have not estimated these expenses etc., I fail to see how I can possibly have underestimated them. Nor do I see how a ruling that this activity is lawful is going to help.
You on the other hand appear to underestimate the ease with which a person can be anonymous on the internet, since it appears that you have interpreted my "might not be able to find his dox" remark as suggesting lack of technical skills on my part. My technical skills are just fine, thank you very much, good enough to know that setting up and using TOR is trivial. I'm also smart enough to know how not to reduce the leak of personally identifying information in the content of my posts to a minmum.
I'm not claiming that nobody would be able to find my dox if I took the precautions I would take if I was going to engage in this kind of shit-storming (which I don't, because I'm not), only that I would find it very difficult to penetrate my own security. I do not assume that trolls are less careful or technically skillful with their security than I would be with mine. Hence, I might not be able to find their dox.
Would this be the same Marc Randazza who thinks communists are every bit as evil as Nazis? Yeah, fuck that guy. If he has anything right to say, it is purely by accident, I assure you.
Yeah fuck you too foog, with a firehose.
Wait, your argument is "well, him being able to mobilise trolls to harass you means you can mobilise trolls to harass him back, thus turning everything into an even bigger clusterfuck", and you see that as a good thing? Honestly? I thought we moved beyond "eye for an eye" as a society, but apparently not.
I'd just rather if this sort of thing couldn't be done in the first place, rather than be told "but fear not, you can form a retaliatory mob, and gain revenge!" Why even have police? "Yes, I know he broke in and stole from you, but you can just return the favour!"
Just one of the reasons why, as an Aussie, America terrifies me.
How about FCC v. Pacifica Foundation
Troll-storms did not exist in 1979 when this was decided, and I see know reason why a troll-storm – which one cannot turn off – should enjoy better first amendment protection than a radio-broadcast, which one can
At what point do we treat the sheer volume of offline communications aimed at a single individual as the meatspace equivalent of a DDoS attack? For a hypo, uncluttered by party affiliations: lets say I had a YouTube channel with 1 million followers, and put out a video exhorting my followers to call/write Ken singing the praises of ponies, with all his contact info right there for the taking. They all take me up on the exhortation and next thing Ken knows, his mailbox and voicemail are full to the brim as his phones ring off the hook 24/7 for weeks on end, crippling his ability to conduct his life and business. Is there any statute or doctrine that deals with this in a content-neutral way? I'm thinking that might be a better way to deal with a "troll storm" than trying to discriminate based on content or viewpoint…
@Kalkin, and others, are right I think that that FA doctrine needs to evolve to fit the world we live in now in terms of technology and what constitutes "action" as opposed to "expression" on the internet.
But man, oh, man, that evolution needs to be ever so narrow, ever so exacting, ever so carefully crafted, and not one tiny bit more than is absolutely necessary. The slippery slope in this case isn't about Anglin at all. In fact, this case, what's important about it, isn't about Anglin at all (and yea, by all accounts he's a total shit bag of a human being). This case is about making sure that the courts use a very sharp scalpel, and not a shovel, to carve out what needs to be carved out regarding speech and action and the internet. And one of the ways good lawyers do this is to make sure that as these cases move through the courts, it's the *right* case, on the *right* facts that forms the *right* precedents for all the cases that follow.
And for that process to work as it should, to do our best to make sure the right results are achieved, you need lawyers like Marc who give the courts as little an opening as possible to change doctrine. To make sure they thread a needle, and not drive a truck through the First Amendment. If this free speech-internet doctrine evolution doesn't happen by case law, then it will happen through legislation. Which will be sooooo much worse, because legislators are absolutely shit at this kind of thing. And then the legislation gets challenged, and more likely than not, we spend decades battling crap decisions decided on crap facts.
I think Gersch should have sued Anglin, and she should have really good lawyers arguing her case. But I also think Anglin should have an excellent and vigorous defense. And we shouldn't shoot the lawyer who takes up that difficult but very necessary task. If the facts are right in this case, the courts should begin to tailor a new chapter in First Amendment doctrine that reflects modern realities. If the facts aren't right this time, then Anglin (douchebag that he is) should win and we all have to wait for the next case on these issues — again, because this is so much bigger and more important than any one person, even any one victim or any one racist asshole.
You have people like this down under too, and not all Americans are like this. Avoid the stereotyping, maybe? Thanks.
@Ken " And I respectfully submit that you're being oversensitive to a rather mild post. Have you read Marc's other stuff?"
Yeah. It's a bunch of 'look, just because a lot of my friends are White Supremacists doesn't mean that I'm a white supremacist! I just have a wonderful love of humanity that I learned from this saintly preacher, and it makes me befriend a bunch of Nazis! Besides, (let me see if I can find this one verbatim) "I think that 'white supremacist' is a term that gets used to describe anyone who happens to be Caucasian and refuses to also subscribe to a particular orthodoxy of thought," – really, they aren't that bad.'
Yer friend's a racist, Ken. There's a reason his rolodex of "free-speech-needing" clients *and* friends skews white supremacist… sorry, skews towards Causcasians-who-refuse-to-subscribe-to-a-particular-orthodoxy-of-thought. It's not because of an over-arching belief in free speech, it's because he's partial to racism.
I mean, I'm not demanding you take him off the site or anything – some differing views make for good debate, but, dude!
Back when I trained as a Lawyer in the UK there was this quaint old notion that even terrible people should be provided with a legal defence when there was a case to argue. Perhaps given it has gone to court the comment section of a law blog is not the best venue to decide what should happen next? Perhaps it is that court? In which case, prominent experts in the field of law concerned should be hired to represent each side and a decision reached based on the resultant proceedings?
Of course, given this is a law/geek blog the popcorn gallery will have its opinions. My opinion is that you shouldn't criticise a lawyer for literally doing his job. Murderers, nazis, rapists, terrorists and pedophiles all get to be represented in court alongside the fine and the saintly. Decent lawyers represent everyone to the best of their ability and according to the facts of the case and the applicable law. Stop being all pearl clutchy at Mr Randazza or stop pretending you have a valid take on the legal system.
Yes Marc announced he was taking the case here, but he blogs at Popehat and it would be weird not to mention it.
Oh, and I remember during the Oatmeal/Funnyjunk shenanigans Carreon was blustering about the internet hate mob he claimed had been sent his way by, among others, a certain Ken White. So, if you think anyone accused of directing online troll storms should not be given a defence, that leaves your gracious host a little vulnerable. Or do you think that only Nazis would be targeted if a wide legal responsibility is established in this case?
Anybody have any thoughts about how the conduct here is any different than the organized harassment of people that opted out of a boycott that SCOTUS found was protected in NAACP v. Claiborne Hardware?
Daran says December 6, 2017 at 9:30 pm:
You say you have no idea what the expenses of litigation are. You also say that you want to the legal right to sue someone if they behaved toward you like Anglin behaved toward his target(s).
Yet you have no idea whether you could afford to exercise such a right.
I would find such a right to be cold comfort. But that's just me.
I bow to your superior technical skills. But if you think that you "might not be able to find his dox", then you have admitted that his skill at hiding might exceed your skill at finding him. All I suggested is that there might be people of even greater skill, who could assist you to find him if you asked for assistance.
Daran says December 7, 2017 at 5:36 am:
Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978) was decided based on the FCC's statutory authority to regulate certain language broadcast by FCC licensees (ie: radio broadcast stations) under the Communications act of 1934, codified as Chapter 5 of Title 47 of the United States Code, 47 U.S.C. § 151 et seq.
The FCC has no corresponding statutory authority to regulate the internet.
@eric76
Wrong. Advocacy of a crime is absolutely protected speech.
Incitement is very different from advocacy. The definition of incitement is speech that is both subjectively intended and objectively likely to cause the audience to imminently commit a crime.
Imminently is the key word there; essentially incitement works the same way as "fighting words". Fighting words are words that temporarily rob the listener of free will, turn him into an automaton, and cause him to attack the speaker. Incitement is the same, but it causes the listener to attack someone else.
The important part is that the listener becomes the speaker's automaton, so the speaker is responsible for what he does, just as he would be if he literally hypnotized someone and caused him to commit a crime, or if he pushed someone off a roof and caused him to damage whatever he landed on.
Any speech that merely provides the listener with the arguments with which the listener then convinces himself to act is not incitement but advocacy, and protected.
Oh, I know we have people like this in Australia. Never denied that. We've definitely got our share of neo-Nazi's, and a whole bunch of people who wish we could bring back the White Australia Policy.
It's just that it's we have far more reatrictive hate speech laws, and so far seem to have avoided collapsing into a dictatorship like some here seem to be suggesting.
In regards to how America scares me, I'm not trying to say that all Americans are racist, or horrible people. I'm referring to the view that individual freedom overrides basically all other concerns, or else the government will do evil stuff. Not sterotyping, just observing differences in the laws and practices of our countries.
Then there's the medical system, which as a person with a pre-existing medical condition (Crohn's disease), is a whole other issue.
The main part of this I have difficulty justifying is the publication of contact information for Mrs. Gersh's twelve-year-old son. I can't imagine any goal that would be advanced by contacting him aside from harassing his family. I doubt he has much meaningful input into his mother's business decisions, but strangers contacting him to complain about her– even politely– would be disconcerting.
Several people seem to think that the fact that it's illegal to hire a hit man shows that it's illegal to tell someone to commit a crime. They're confusing two very different things. Hiring a hit man is a criminal conspiracy, which requires an agreement between the conspirators. Not one person advocating and a bunch of people in various places independently deciding to act on that advocacy.
No, fighting words are "those that by their very utterance inflict injury or tend to incite an immediate breach of the peace." (Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 572) Note the two prongs: "inflict injury" OR "tend to incite an immediate breach of the peace". If the words hurled at Gersch are not ones "that by their very utterance inflict injury" then it is difficult to think of words which would.
Yes, but also that hiding is a lot easier than finding. Any sufficiently motivated person of ordinary means and average, or perhaps slightly above average intelligence, should be able to hide their identity on the net to a degree that even a three-letter agency would find unmasking them a challenge.
There might be, and, despite their greater skill, they also might not be able to find him, so "I might not be able to find his dox" would still be true.
I cited that case for the proposition that speech projected into a person's home against their wishes is not constitutionally protected. That's the relevance to this case, not the involvement of the FCC.
@Daran, the broad interpretation of fighting words you're suggesting is far out of date.
To the extent the doctrine survives, it only carves out face-to-face insults directed at a person likely to cause that person to react violently.
Hey, slightly off-topic (but on the topic of the First Amendment rights of total d-bags): what do you think of this anti-cyberbullying TRO, Ken and Marc?
http://www.cleveland.com/metro/index.ssf/2017/12/judge_orders_youtube_star_alis_1.html
Sounds almost like prior restraint but (similar to the Anglin story), if this is a miscarriage of justice, it couldn't have happened to a more deserving guy.
Daran says December 7, 2017 at 6:26 pm:
The case is relevant to internet communications only if you disregard a few facts:
1. The speech in Pacifica was "not constitutionally protected" only on radio broadcasts, as the court wrote, under "18 U.S.C. § 1464 (1976 ed.), which forbids the use of "any obscene, indecent, or profane language by means of radio communications."
In the Court's opinion, "Broadcasts extend into the privacy of the home, and it is impossible completely to avoid those that are patently offensive."
2. The internet is neither a radio nor a broadcast medium. The internet is a point-to-point medium, somewhat like the telephone system.
3. The US Congress passed the Communications Decency Act of 1996 to prohibit indecency on the internet. Those provisions were struck down in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
While it may be possible for Congress to pass some other constitutionally acceptable law to regulate whatever words or messages that you object to on the internet, I think it is unlikely.
But by all means, write your congressional representative and state what you would like to be regulated or forbidden.
Really? Can you point me to the more recent Supreme Court decision where they did what they declined to do in R.A.V. v. City of St. Paul, namely narrow "the scope of the Chaplinsky formulation".
Later in the same decision:
"Although the phrase in the ordinance, "arouses anger, alarm or resentment in others," has been limited by the Minnesota Supreme Court's construction to reach only those symbols or displays that amount to "fighting words," the remaining, unmodified terms make clear that the ordinance applies only to "fighting words" that insult, or provoke violence, "on the basis of race, color, creed, religion or gender."
My emphasis. Insult OR provoke violence. It looks to me as though the two prongs were still there in 1992.
I do understand that the doctrine has been significantly cabined over the years since Chaplinsky was decided, and indeed the actual words at issue in that case would not now be viewed as fighting words. I also accept that communications that aren't face to face would never be regarded as fighting words.
@En Passant
You are still missing the point.
FCC v. Pacifica Foundation stands for the proposition that speech projected into a person's home against their will is unprotected speech. Gersch has been subjected to harassing telephone calls from unknown parties.
This, unprotected speech is the imminent lawless activity that Anglin incited. That renders his speech, inciting it, unprotected too, under Brandenburg v. Ohio.
Daran, how do you get past the core element of incitement, which is imminence? The whole point of that element is that the incitee's actions are not really his own, because the inciter's words robbed him of his free will. I can see how that can happen over the radio or TV, but I find it difficult to imagine it applying to something in writting. (Perhaps you want to measure the imminence from when the incitee hears the words, not from when the inciter utters them? But even so, it would have to be quite some writing to have that sort of emotional power.)
@Duran
Is that what "imminent" means, in the legal sense? Because in regular conversation it means it's about to happen.
A campaign of coordinated harassment isn't free speech. You are despicable, Randazza.
I have never before this thread seen it suggested that imminent in this context means anything other than in the immediate or very near future. The suggestion that the incitee must be robbed of his free will strikes me as a bizarre interpretation, for which I would like to see an authoritative cite.
Here's Ken on the topic:
You can whip up an angry crowd without turning them into robots. Moreover "whipping up an angry crowd" is exactly what Anglin is alleged to have done. Additionally the complaint alleges:
My emphasis. To be honest, I think imminence is the least difficult of the Brandenburg criteria for the complaint to establish. Establishing that the troll-storm as a whole constituted "lawless action" is a lot harder, which is why I am focusing on the idea that speech projected into a person's home against their will is unprotected. "Unprotected" does not mean "lawless", but its a step in the right direction.
@Ken White
In another post you wrote
Anglin allegedly did post Gersch's child's home address and his pictures to his violent and demented followers. My question is this: If the underlying action is not unlawful, in what way would saying that you are going to do it be a threat?
@Daran: In the full passage I'm talking about how a person doesn't have to threaten violence themselves for it to be threatening, not commenting on whether that particular statement is a true threat. But yes, I think one of the SLPC's best arguments is that this was incitement satisfying the Brandenburg test, and that's the hardest argument Marc has to deal with.
It's possible you really don't get what I mean when I say I want both sides represented by vigorous competent counsel in a case like this.
Has anyone here done that? As far as I can see the criticism directed at Randazza has been about his blogging.
He's done a lot more than merely mention it. He job as Anglin's attorney is to zealously advocate for Anglin in court, and to not speak against Anglin's legal interests outside. He is under no obligation to advocate for Anglin in a blog post, which is what he has done.
But what has really gotten people's goat is that in doing so, he has represented himself as somehow a champion of all our freedoms. He is not. The only freedom he is fighting for is the freedom of Anglin, and by extension, any other evil blowhard with a troll following, to launch shit-storms at anyone they choose. Gersch's and her family's freedom to live peacefully in their own home without being subject to a torrent of threats and abuse can go hang. As can mine, yours and anyone else's.
Gersch's attorney has the opposite and equally evil job of advocating for Gersch and Gersch alone. Anglin's, and everyone else's rights to vigorous free expression can go hang. The theory behind our adversarial system is that by listening to these two evil people the judge will be able to make good decisions. Sounds like a shit theory to me; it's amazing that it works as often as it does.
I haven't seen anyone say this, so I guess that makes strawman number two.
What I and some others here think is that if the factual allegations in the complaint are true then Gersch ought to have some legal redress. Consequently we think that Gersch's complaint, perhaps amended, should survive Randazza's MtD.
I doubt very much that Carreon could put together a set of true allegations against Ken that would entitle him to redress.
No, I think only Nazis should be targeted for punching.
I also think imminence is easily handled. There's always the very pragmatic, "Well, judge, it imminently happened, so… kinda looks like the imminence plank is satisfied one way or another…"
The harder part is intent.
I think the SPLC can establish all of the following reasonably easily:
1. That Anglin intended to convince his followers to contact Gersh and Gersh's family.
2. That Anglin knew his followers were Nazis and white supremacists.
3. That Anglin knew of the inevitability that some or most or all of his followers would be rude.
4. Further, Anglin knew that at least some of them would cross the line into criminal threats and/or harassment.
5. That, given that they were Nazis and white supremacists, and given their past behavior in other instances, Anglin knew that the number of them who would choose to engage in criminal threats and/or harassment would be more substantial than if he was speaking to most other political groups.
6. That the contact, illegal or otherwise, made as a result of his exhortation would occur imminently after his exhortation.
But all of that doesn't inherently add up to INTENT. Anglin will argue that he INTENDED for his followers to contact Gersh and Gersh's family legally, and can't be held responsible for those who did so illegally, even if that outcome was predictable.
I don't think that's a guaranteed win for Anglin. But I think that's where the issue lies.
@The Other Dan At least to me, the judge's order in the YouTube case you referenced seems clearly to be unconstitutional prior restraint. Of course, IANAL, but this order seems no different to me from the many other unconstitutional prior restraint orders which Ken has eviscerated here in the past.
That makes it irrelevant to the case we're discussing here, since Gersh is suing Anglin for damages for something that has already occurred.
But you did say of that particular statement, that "people would understand it as a threat", which I understood to mean that you think it could be a true threat, depending upon other circumstances such as the speaker intending the recipient to believe that he had the intent and ability to carry out his threat, and the recipient so believing. If it could never be a true threat, then why the hell did you include it in a post about true threats?
My question is, can a threat to incite imminent lawful action ever be a true threat? If the answer is "no", then how does that not imply that you think Anglin's alleged action, which is for our purposes identical to the action threatened in your hypothetical, is unlawful?
I do get that.
@Patrick
That's an excellent statement of the SPLC's best argument. I would add
5a, He knew that the sheer volume of the resulting contact would amount to harassment, regardless of whether the individual contacts were threatening or harassing.
I think the intent defense is weak.
If you take action X, knowing that Y but not Z will be the inevitable result, then you cannot credibly say that you intended Z but not Y.
If you take action X, knowing that both Y and Z would be the inevitable result, and you do X in a manner which know will make Y much more likely or more intense without making Z more likely or more intense, then the inference must be that you intended Y.
Anglin allegedly used incredibly inflammatory language, which he must have known would greatly intensify the threats and harassment.
I suspect that Anglin, or more accurately Randazza, will argue that Anglin only intended contact which, viewing each individual troll's contact in isolation, would amount to constitutionally protected, therefore lawful speech. Because he only intended to incite imminent lawful action, he was on the right side of Brandenburg, despite intending a volume of contact that would amount to harassment in total. He will argue that the imflamatory language was intended to increase the number of trolls making individually non-harassing contact, not to induce the trolls to harass or threaten.
If you take action X, knowing that both Y and Z would be the inevitable result, and you do X in a manner which know will make both Y and Z much more likely or more intense, then you can credibly argue that you intended Z and not Y.
The rebuttal I have been trying to develop is that that he must known that Gersch and her family would not welcome any contact at all from any of his trolls, and that they would experience all of it as harassing. In addition he must have known that his trolls would know this. Because unwanted speech projected into the home is not protected, when he allegedly incited his trolls to phone her at home, he was intentionally inciting unlawful activity.
@Patrick: I agree. At the very least, there was a reckless disregard on Anglin's part about whether the Gersh family would be harassed, and it's my opinion that the harassment was intentional on Anglin's part. However, there's a big difference between "At a glance, it sure looks like that was his intent" and "A lawyer could prove that that was his intent in court," even in a civil suit, where it just needs to be proved to be more likely than not.
I think that argument is probably going to have to come down to context: Anglin's followers' behavior in previous "troll storms," how Anglin reacted to them then, and how Anglin reacted to his followers' behaviour after this troll storm.
If there's a button next to the window which punches the person on the other side of the window in the face, and, after you push the button, you go outside, pick the person who was punched up, apologize, and then take effective measures to prevent that button from being pushed again by accident, then I'll find it a bit more credible if you said you didn't mean for it to punch a second person, especially if you go out and apologize and help that person up, too.
On the other hand, if you just sit there, pushing the button every time someone passes by the window and smirking as people get punched, I have to think you're doing it deliberately, not matter how loudly and how often you say, "Oh button, please don't punch anyone!" before you push it.
Daran says December 7, 2017 at 9:22 pm:
Then pass along your insight into the Pacifica decision's holding to the SPLC, and Morrison, Sherwood, Wilson, & Deola, PLLP, counsel for plaintiff Gersh.
Let everyone here know when plaintiff's counsel includes it in a brief.
"Harassing" is at most a small part of the complaint. You forgot to add threatening and intimidating.
Have you read the complaint?
In case you haven't, Gersh's complaint alleges four counts:
Count 1: Invasion of Privacy.
Count 2: Intentional Infliction of Emotional Distress.
Count 3: Violation of the Montana Anti-Intimidation Act, Mont. Code Ann. § 27-1-1503(2).
Count 4: Actual malice within the meaning of Mont. Code Ann. § 27-1-221 entitling Ms. Gersh to punitive damages.
If you haven't read Mont. Code Ann. § 27-1-1503, here it is in full (emphasis mine):
Note that Mont. Code Ann. § 27-1-1503 was enacted many years after Pacifica was decided.
When you communicate your insight to plaintiff's counsel, you might want to explain when, where and why they should cite Pacifica.
Yet again, the events of the day demand that I point out that the only reason we have to fight over this to no useful end is that sword duels were banished.
If you had the right to say some despicable thing, and I had the right to demand a duel, then we could settle it with finality.
If we're not allowed to kill each other over it then it makes no sense to allow overt harassment. I mean, seriously, if the result is less Just than if we were killing each other over it, that's a pretty fucking bad civics claim. In the past it could be solved by a person of known Nobility, and Justice would be guaranteed in the end.
The whole political claim behind banning sword duels was that we had become much more civilized, we had laws and courts to resolve legitimate disputes, and police to protect us from mobs, so we didn't need to kill each other disputes anymore.
The slippery slope doesn't lead to competing armies of trolls, it leads to popular support for legalized dueling.
> Free-speech advocates need to take this way more seriously than just trotting out the traditional platitudes about dangerous precedents and the shitty price we have to pay for freedom. If we don't get ahead of this, there's going to be a justified but heedless backlash, and that will really have serious consequences for our liberties.
Regardless of which way the judge rules, there could be serious consequences for our liberties. IMNSHO, the best option is for the judge to dismiss the suit with prejudice, stating that both sides lack cause to sue/counter-sue the other.
Regardless of how the judge rules, the clear message is that the only way to be safe on the Internet, is to be invisible. The way not to be harassed by people, is for people to not be aware of your existence, and for you to nothing to come to the attention of other people.
Crom, that is literally never how dueling ever worked.
Ever.
Also, duels were banned because they were all too often fatal to both parties, in addition to that whole tricky “monopoly of force/legitimacy of justice” thing the government has an interest in ensuring.
@pixie
But… As I understand, the Gersh family didn't get involved in this "on the internet". They got involved in real life, when Mrs. Gersh was doing her job. Mr. Anglin dragged them onto the internet.
From here, it looks like, if the judge rules (narrowly) in Mrs. Gersh's favor, people will no longer be able to draw their rivals (who are not public figures) to the attention of an internet hate mob. And if the judge rules in Mr. Anglin's favor, the only defense against such an action will be to gather an opposing internet hate mob. And if the case is dismissed, it's either the same as ruling in Mr. Anglin's favor or it just kicks the can down the road for the next judge to decide.
@Paradigm
Sword duels used to be mandatory when a Noble person made a challenge. That system was banned because the "People" didn't really like how some of my ancestors were using the power. Oopsie.
It was musket duels where both people died. That had nothing to do with nobility, or settling disputes. It had to do with a mistaken concept of mandatory machismo in a post-Nobility world. It was outlawed once it became unpopular.
You're ignoring a thousand years of history in favor of about fifty years of it!
@Jon Marcus
Rowan upheld a statutory scheme permitting a home owner to stop the mailing of unsolicited mail.
But note that Rowan did not uphold the scheme on the ground that the government may generally shield people from unwelcome speech.
@Daran
Even unwelcome and offensive speech is not per se unprotected, even when addressed over the phone or directed at a specific individual who is likely to read or peruse the speech in his/her home, see US v. Popa.
Also note that FCC v. Pacifica has been limited by the Supreme COurt even in the context of adult pornography reaching into the home, US v. Playboy Entertainment Group and Reno v. ACLU.
BadRoad says December 10, 2017 at 9:29 am:
If you want to understand the case, and if you want to know what the case looks like, the complaint is here [PDF warning]:
https://www.splcenter.org/sites/default/files/whitefish_complaint_finalstamped.pdf
I expect that Marc Randazza will provide links to responsive pleadings when they are filed. He usually does.
Remember that the case is very early in the pleading stage.
@Cromulent Bloviatior
"…and Justice would be guaranteed in the end"
Is that how duels work? The good guy always wins? Is this because of divine intervention, or is it just analytically true because, as Thrasymachus says, "justice is nothing more than the interest of the stronger?" [338c]
Also, these people are scumbags, right? Even Marc admits that. Why would you think they would have enough "honor" to agree to a duel? We live in a world where people are lauded (even voted into office) by their fellow basement-dwelling trolls for their cowardly and knavish behavior. You might blame the abolishment of dueling for that fact, but it is a fact, and bringing dueling back won't change it, because cowards never duel.
On another note: To all those earlier in the comments slamming Marc for defending a scumbag, get over yourselves. He's a lawyer. There is nothing wrong with a lawyer defending a scumbag (or a non-scumbag, obviously) in a criminal case. Ever. On the contrary, it is always, always, a good and praiseworthy thing. Civil cases (like this) are less 100% clear-cut, but it's still good that everyone has access to counsel. So good on Marc for doing what needs to be done. I'm on the fence about whether his arguments are correct, and I'm definitely not accepting his slippery slope there at the end, but you know, he's trying to advocate for his client, and that's honorable.
@ Cromulent Bloviator
I had this page open for a few days before commenting, so I didn't see that Cromulent Bloviator had suggested that dueling be mandatory when instigated by a "noble" person. That solves my worry that knavish trolls would simply refuse to fight.
Oh, wait, no it doesn't. We don't have a nobility in America. Also, in many times and places (e.g. pre-enlightenment France, from what I've read, and probably much of Europe) nobles did not fight duels with commoners.
Also, you claim historical precedence for your suggestion, saying "sword duels used to be mandatory when a Noble person made a challenge." If that's true, and you have a source for it, you'd better edit Wikipedia's entry on "code duello": "If one party failed to appear, he was accounted a coward. The appearing party would win by default." A brief search for other sources backing up your account yielded none, but I don't claim to be an expert.
Final point: those people who didn't like your ancestors stabbing them for no good reason? They were also your ancestors. Remember, my lord, If we're going back 1000 years, everybody is descended from everybody.
@Patrick
Brandenburg v. Ohio does not allow for the imposition of liability for speech which merely recklessly incites lawless action.
Also several commentators are getting the imminence prong of Brandenburg wrong.
Imminence is an additional threshold to the requirement that the action incited must be unlawful.
Also if state law allows a private individual to arrest another, inciting another to get protesters out may not even be inciting lawless action.
@En Passant
Okay, after reading the complaint, it looks like Mrs. Spencer was the one who dragged Mrs. Gersh onto the internet. That still doesn't support the advice of trying to be invisible on the internet because people you meet in real life can still go on the internet to paint a target on you.
BadRoad says December 12, 2017 at 7:32 am:
Congratulations! You likely have done more to understand the case, and the reasons for Marc Randazza's involvement in it, than most of the commenters here.
By all means, carry on your colloquy with pixie. My purpose was not to debate either of you, but to point out that reading the available pleadings (and the statutes cited in the pleadings) will move the debate beyond mere speculation.
In the words of the illustrious Emil Farber: "Knowledge is good."
@James- I know, but intent is inferred from circumstances, by the fact finder. The same circumstances that can prove recklessness (knowledge that a given outcome was likely) can also give rise to an inference of intent (desire to bring about the likely outcome of ones actions).
Here's my legal argument: go to Hell with your client.
This is gross.
And today he retweets Ian Miles Cheong. He had “fun” on Infowars. I’m sorry, but I understand why people are coming to a conclusion here. Has he gone native?
I know this is a bit of thread-necromancy but I'm interested to know if the recent Daily Stormer style guide leak changes anyone's opinion as to whether or not Anglin is acting with malice and intent to incite imminent violence. He explicitly says that he knows exactly how his words will be received by his followers, encouraging them to commit murder and arson. He explicitly says that in order to avoid turning off normies and to avoid legal trouble, he has to pretend to be joking but "This is obviously a ploy and I actually do want to gas kikes."
If after reading the style guide, your opinion is still unchanged as to whether or not his posts are authentic calls for violence, could you explain why? I'm not trying to sealion here, I am legit curious.
@guyphillips- I was wondering the same thing myself. When I initially read this post I pretty much agreed with Marc's position on the case. It may be well known that Anglin is actually trying to harass his victims but he was clever enough to do so in a legally defensible way. These new revelations look like they may give Ms. Gersh's attorneys a way to undermine that defense. It seems like this demonstrates intent to encourage others to commit imminent lawless actions, which I believe is the standard for incitement. I have no legal training however so I might be woefully wrong.
I hope this does turn the tide against Anglin. It would be the best possible outcome to both preserve freedom of speech and give a Nazi a proper legal pounding.
Freedom of speech is a fundamental building block of our democracy.
On December 16, 2016, Tanya Gersh answered her phone and heard gunshots. Startled, she hung up. Gersh, a real-estate agent who lives in Whitefish, Montana, assumed it was a prank call. But the phone rang again. More gunshots. Again, she hung up. Another call. This time, she heard a man’s voice: “This is how we can keep the Holocaust alive,” he said. “We can bury you without touching you.”
Criminalize the gunshots. "“We can bury you without touching you.”"? Criminalize this. Don't criminalize what Anglin did.
Any attack on free speech is an attack on our rights.
If Nazis do take power, freedom of speech protects us.
@ttrr:
"Criminalize the gunshots… Don't criminalize what Anglin did."
No, incitement, solicitation and conspiracy are still crimes – and for good reason.
"If Nazis do take power, freedom of speech protects us."
Because Nazis will respect freedom of speech once they're in power? Sure, Jan.
@ttrr
Anglin was directly responsible for the gunshots. Anglin was directly responsible for the harassment. He caused it, he enabled it, he clearly expected it to happen.
Freedom of speech is a right. Nobody should have the right to do things like this.
So yes, criminalize what he did. Shut his site down, then lock him up and throw away the key.
Nothing of value will be lost.
So, concerning the stateless argument by the defense attornies,
The plaintiff can't prove he's an Ohio resident. Is the defense free to claim he's living outside of the country without similar requirements of proof?
I'm guessing he does not plan to file state taxes for 2017?
He has obvious income in 2017 earned in the US. A federal return should be prepared. A home address is a required part of the form.
I've read that his father has said he's disowned him, yet he's helping with business related legal work in Ohio?
Mr. Rendazzas post is disheartening. I've been a long time reader due to the patient, faithful, independent analyses. This article is none of these, nor could it be.
I have to admit, I got a chuckle out of this little snippet from the motion to dismiss:
Because when has the direct and immediate application of generally recognized anti-Semitic tropes to specifically recognized Jews ever led to any harm?
Especially when Nazis do it?
It looks like $PLC shills are going hard in this thread.
Hello, Sneed, you odious little worm.
Do you actually have any worthwhile content to contribute?
Nah, must just be here to Nazi up the place.
Those are rather serious accusations. And what defense do you have to present for your client?
Does the phrase "precedent" not refer to issues of law, not facts? If your client is factually innocent of the charges, then what precedent can be set? I cannot see how this is not openly conceding on a public website that you do not dispute the factual assertions made against your client, but instead intend on insisting that the First Amendment protects solicitation of death threats. I'm no lawyer, but that … seems like egregious malpractice to me.
Either your client is factually innocent, in which case why the hell didn't you lead with that instead of implying that the alleged acts are protected by the constitution (which they most definitely are not), or he is not factually innocent, in which case fuck him.
Death threats are a crime. Your client has every right to solicit criminal acts? That's the defense you're going with? Your incompetence is astounding.
And harassment is different from "sharing one's views".
No, it doesn't. Some of the speech it protects is unpopular, and some of speech that is unpopular, it protects. But to say "The First Amendment protects unpopular speech" is, especially in this context, to imply if not outright state that no unpopular speech is unprotected, which is absurd. Ken has a post about First Amendment fallacies, and one thing he touches on is "A is in category B, and some members of category B are C, therefore A is C" is not a valid argument. It's not a valid argument when saying "Some types of vile speech are not protected, this is vile speech, therefore it's not protected", and it's not a valid argument when saying "Some types of unpopular speech are protected, this is unpopular speech, therefore this is protected". Rather than giving any argument for why this speech is protected, you're simply presenting the at best irrelevant (if we take the implicit quantifier to be "some"), and at worse false (if we take the implicit quantifier to be "all"), claim the First Amendment protects speech.
You have utterly failed to identify any constitutional rights at jeopardy.
@Encinal
Ken's comment here has some clarification on the legal issues and a link to Marc's motion to dismiss.
I would think that someone employed in a profession that centers so much around communication should be able to clearly state in their original post their strongest causes of action, rather than so strongly giving off the impression that they think that soliciting death threats is protected by the first amendment, and leaving to others to present more reasonable causes. I don't think that it is unfair to judge Marc's post based on Marc's post, separate from the case itself.
@SlimTim
Looking closely, I see that Ken said the First Amendment argument always ought to be made, not that it always holds water.
@BadRoad
I agree with your reading of Ken's comment.
I pointed Encinal to it because it clarified what the free speech question was and had a link to the court motion where Marc makes his legal arguments.
Hmm. Anglin's a nazi, Marc's a nazi. Anyone willing to side with the free speech of a nazi is a nazi. From a rough reading of this thread, about five percent of the readers of one of the more free-speech fundamentalist blogs around actually believe in free speech.
I wish I could say I was shocked.
"Nazi" has this magical effect on some people. It seems to completely reroute their mental circuitry. My pet theory is that humans have never risen above the need for a hated scapegoat. The anti-semite calls everything he hates "The Jew". The modern american calls them "The Nazis". All these grown-ups with their jobs and degrees, and it's just playground bullshit, forever. "Algin has COOTIES, and therefore is beyond the pale and deserves no rights!".
I'm a Jew and I firmly believe that the rights of neo-Nazis need to be protected. However I also fully expect and anticipate that neo-Nazis will and should lose most of their cases because what they are trying to do (harm other people), they actually have no right to do whatsoever.
"I hate dagos." –
"Marc Randazza is a filthy dago." –
"Marc Randazza is a filthy dago who lives with his dago wife and kids at 123 Dago Lane and his number is 213 DAGO. Hit em up fam."
"Here is a list of all the dagos who live in Nevada and their phone numbers and email addresses and home addresses and workplaces. Show em whats what in anti-dago town."
Who here wants to tell me that there is no material difference between the first two and the last two and it is all just speech?
@tarrou
My pet theory is that the modern American calls Andrew Anglin a Nazi rather than a Jew more because he is one and isn't the other than because of changing trends in hated-scapegoatery.
Seems like a better fit for the facts, imo.
Given that this blog links to Randazza's tweets and his claim above that he finds white-nationalist/racialist views "absolutely abhorrent," I think that commenting on his retweet of the following is both legit and on-topic:
It's not even a sure thing that the guy is Hispanic at all. He was adopted. But "decidedly not-Caucasian"? He's white, ffs.
And yet there's Randazza, who finds white-supremacist thinking abhorrent, mindlessly promoting the idea that the killer of 17 innocent people is "decidedly not-Caucasian," against the evidence of his own lying eyes, for some reason.
This seems to me more like knee-jerk agreement with the basic premises of white supremacy — ie, violent criminals are decidedly not-Caucasian, because of course — than it does abhorrence. A lot more like.
Moreover, Cruz was in fact a racialist bigot anyway. And it's patently false that the media reported his involvement with ROF because "some anon on 4chan claimed it," ftm. They reported that the head of ROF claimed it, which he did.
But it's never the white supremacist's fault, amirite?
I'm honestly surprised he didn't once again ask people to raise both hands if they saw this coming when people began talking about punching Nazis on the internet, like he did after Charlottesville. It's never ever their fault. Everyone who abhors white supremacy knows that.