Gersh v. Anglin

Filing 116

ORDER denying 31 Motion to Dismiss; adopting Findings and Recommendations 85 in full. Signed by Judge Dana L. Christensen on 11/14/2018. (ASG)

FILED

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

NOV 14 2018
Clerk, U.S District Court
District Of Montana
Missoula

TANYA GERSH,
CV 17-50-M-DLC-JCL
Plaintiff,
vs.

ORDER

ANDREW ANGLIN, publisher of the
Daily Stormer,
Defendant.

United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendation in this case on May 3, 2018, recommending that Defendant
Andrew Anglin's Motion to Dismiss be denied to the extent it seeks dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 85 at 30.) Anglin
filed his objections on May 13, 2018, and the Court deems his objections timely
filed. (Doc. 91.) Consequently, Anglin is entitled to de novo review of those
findings and recommendations to which he has specifically objected. 28 U.S.C.
§ 636(b)(l). Absent objection, this Court reviews findings and recommendations
for clear error. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en bane); Thomas v. Arn, 474 U.S. 140, 149 (1985). Clear error exists if the
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Court is left with a "definite and firm conviction that a mistake has been
committed." Easley v. Cromartie, 532 U.S. 234, 242 (2001) (citations omitted).
Anglin objects to the recommendation that his motion to dismiss be denied,
contending: (1) the First Amendment protects the speech at issue; (2) Anglin
cannot be held liable for others' speech, even if that speech is not protected; and
(3) Plaintiff Tanya Gersh failed to state a legally cognizable claim under any one
of the various legal theories raised in her Complaint.
Reviewing de novo, the Court concludes that Judge Lynch correctly
analyzed the sufficiency of Gersh' s complaint. Accordingly, it adopts the Findings
and Recommendation in full and denies Anglin's motion to dismiss except as to
the constitutionality of the Anti-Intimidation Act, an issue that was not addressed
in the Findings and Recommendation and accordingly is not reached in this Order.
BACKGROUND 1

Defendant Andrew Anglin publishes an alt-right website, the Daily Stormer,
which derives its name from Der Sturmer, an unofficial pro-Nazi propaganda
tabloid. On December 16, 2016, following a string of lead-up articles, Anglin
wrote and published on his website an article calling his readers to action: "Let's
1

Because the Findings and Recommendation include a more thorough factual background, and
because the parties are familiar with the allegations of the Complaint, the Court presents only a
brief background summary within this Order. For purposes of this Order, the allegations of the
Complaint are presumed true.

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Hit Em Up[.] Are y'all ready for an old fashioned Troll Storm? Because AYO-it's that time, fam." (Doc. 1 at 2.) The so-called troll storm was targeted at
Plaintiff Tanya Gersh, and Anglin published Gersh's phone numbers, email
addresses, and social media profiles, as well as those of her husband, twelve-yearold son, friends, and colleagues. Anglin asked readers to "Tell them you are
sickened by their Jew agenda to attack and harm the mother of someone whom
they disagree with." (Doc. 1 at 20.)
The Daily Stormer's articles centered on Gersh' s interactions with Sherry
Spencer, Whitefish resident and mother of prominent neo-Nazi Richard Spencer.
At some point, Gersh, a realtor, discussed the potential sale of a business property
with Sherry Spencer, who owned the building and was facing boycotts related to
her son's notoriety. In the articles, Anglin described Gersh's behavior as extortion,
and Anglin drew heavily on crude ethnic stereotypes, painting Gersh as acting in
furtherance of a perceived Jewish agenda and using Holocaust imagery and
rhetoric. He called for "confrontation" and "action," (Doc. 1 at 18 & 41 ), but he
also told readers to avoid illegal activity, drawing a line between what Anglin
believed to be constitutionally protected speech--e.g., "photoshop[ping] pictures
of your face and that of your scamming spammer rat son onto Nazi propaganda
posters from the 1930s," (Doc. 1at41)-and speech for which he and his

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followers might face liability---e.g., "threats of violence, suggestions of violence or
acts of violence," (Doc. 1 at 43).
The messages received by Gersh and her family, including her son, were
filled with ethnic slurs and misogynistic rants. Many messages referenced the
Holocaust, and some threatened violence. When Gersh filed her Complaint in the
spring of2017, she and her family had received more than 700 disparaging and/or
threatening messages over phone calls, voicemails, text messages, emails, letters,
social media comments, and Christmas cards.
DISCUSSION

Withholding judgment on the constitutionality of Montana's AntiIntimidation Act, 2 Judge Lynch recommended denying Anglin's motion to dismiss
on every other theory raised. Anglin's objections fall along three lines: (1) the
First Amendment broadly protects Anglin's own speech; (2) Anglin cannot be held
liable for others' speech consistent with the First Amendment; and (3) Gersh failed
to state a legally cognizable claim under each of the three legal theories raised in
her complaint: invasion of privacy, intentional infliction of emotional distress, or
violation of Montana's Anti-Intimidation Act.

2

The constitutionality of the Anti-Intimidation Act is at issue in this litigation, but the issue was
not fully briefed prior to the issuance of the Findings and Recommendation. Accordingly, it is
not relevant to this Order.

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I.

First Amendment Protection

Judge Lynch recommended rejecting Anglin's argument that the challenged
speech is protected by the First Amendment and accordingly immune from a state
tort suit. Anglin contends that his motion to dismiss should be granted because the
speech giving rise to Gersh's claim enjoys First Amendment protection. He argues
that: (1) the speech does not fall within an unprotected category; and (2) the speech
involved both a matter of public concern-neo-Nazi Richard Spencer's
relationship with the town of Whitefish, Montana-and a public figure-Gersh.
The Court agrees that the speech does not fall into a de facto unprotected
category. And in fact Gersh does not contend that Anglin' s speech falls within one
of the few "historic and traditional categories of expression long familiar to the
bar" for which content-based restrictions on speech are clearly permitted. United

States v. Alvarez, 567 U.S. 709, 717-18 (2012) (citations, alterations, and internal
quotation marks omitted). Indeed, "there is no categorical exception to the First
Amendment for harassing or offensive speech." United States v. Osinger, 753
F.3d 939, 953 (9th Cir. 2014).
Further, the Court is unconvinced by Gersh's argument that, pursuant to

Shoemaker v. Taylor, 730 F.3d 778, 787 (9th Cir. 2013), the Ninth Circuit
generally demands a balancing approach to First Amendment issues. The Ninth

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Circuit's discussion in Shoemaker was limited by the Antiterrorism and Effective
Death Penalty Act. The Court addressed only whether "the Supreme Court has ...
clearly established that images morphed to depict children engaged in sexual
activity are protected by the First Amendment" when the Supreme Court had in
fact expressly reserved the question of whether morphed images fell within a
clearly established category of unprotected speech, child pornography. Id. at 787.
However, Shoemaker's inapplicability does not necessarily mean that Anglin is
entitled to dismissal.
"The Free Speech Clause of the First Amendment-'Congress shall make no
law ... abridging the freedom of speech' -can serve as a defense in state tort suits,
including suits for intentional infliction of emotional distress." Snyder v. Phelps,
562 U.S. 443, 451 (2011). 3 That said, "[t]he protections afforded by the First
Amendment ... are not absolute, and [courts] have long recognized that the
government may regulate certain categories of expression consistent with the
Constitution." Virginia v. Black, 538 U.S. 343, 358 (2003).
The First Amendment's protections are particularly strong when the speech
at issue involves "matters of public concern." Dun & Bradstreet, Inc. v.

Greenmoss Builders, Inc., 472 U.S. 749, 758-59 (1985) (Powell, J., for the
3

The Fourteenth Amendment extends the First Amendment's zone of protection to include state
action. Edwards v. South Carolina, 372 U.S. 229, 235 (1963).

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plurality) (quoting First Nat'/ Bank ofBoston v. Belotti, 435 U.S. 765, 776 (1978)).
"'[N]ot all speech is of equal First Amendment importance,' however, and where
matters of purely private significance are at issue, First Amendment protections are
often less rigorous." Snyder, 562 U.S. at 452 (quoting Hustler Magazine, Inc. v.

Falwell, 485 U.S. 46, 56 (1988)). This is so because the regulation of"speech on
matters of purely private concern" does not "threat[en] the free and robust debate
of public issues" or "potential[ly] interfere[] with a meaningful dialogue of ideas."

Du.n & Bradstreet, 472 U.S. at 760.
Accordingly, in cases brought under state tort law, where the cause of action
is not itself subject to a facial challenge, the first question is "whether [the] speech
is of public or private concern, as determined by all the circumstances of the case."

Snyder, 562 U.S. 443 (addressing claim for intentional infliction of emotional
distress); see also Hustler, 485 U.S. 46 (libel, invasion of privacy, and intentional
infliction of emotional distress); Du.n & Bradstreet, 472 U.S. 749 (defamation).
Whether speech is a matter of public concern depends on the "content, form,
and context" of the speech, Du.n & Bradstreet, 472 U.S. at 761, i.e., "what was
said, where it was said, and how it was said," Snyder, 562 U.S. at 454. "[T]he
standard for determining whether expression is of public concern is the same
standard used to determine whether a common-law action for invasion of privacy

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is present." City ofSan Diego v. Roe, 543 U.S. 77, 83 (2004) (per curium). The
Court must determine whether the speech can "be fairly considered as relating to
any matter of political, social, or other concern to the community." Connick v.
Myers, 461 U.S. 138, 146 (1983). The standard is met when the speech centers on
"a subject of legitimate news interest; that is, a subject of general interest and of
value and concern to the public." San Diego, 543 U.S. at 83-84. However, in
determining the public value of the speech, the Court must be cautious to avoid
policing the speech's content, as the "inappropriate or controversial character of a
statement is irrelevant to the question whether it deals with a matter of public
concern." Rankin v. McPherson, 483 U.S. 378, 387 (1987).
A few Supreme Court cases provide a sketchy outline of the public concern
test. See San Diego, 543 U.S. at 83 ("[T]he boundaries of the public concern test
are not well defined.") In Snyder, the Court considered a lawsuit brought by the
father of a soldier killed in Iraq in the line of duty against Fred Phelps, leader of
the Westboro Baptist Church. 562 U.S. at 448-49. Led by Phelps, members of the
church picketed the soldier's funeral, waving signs celebrating the death of
American soldiers and civilians as righteous vengeance wrought by sexual abuse in
the Catholic church and the government's tolerance of homosexuality. Id. at 44849, 454. The Court held that the speech was protected because the "content" of the

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church's signs "plainly relate[ d] to broad issues of interest to society at large,
rather than matters of 'purely private concern."' Id. at 454 (quoting Du,n &
Bradstreet, 472 U.S. at 759). The "context"-"where [the speech] was said"-was
something of a mixed bag, as the protest was tied to a soldier's funeral but also "on
public land next to a public street," "the archetype of a traditional public forum."
Id. at 454-56 (citation and internal quotation marks omitted). In the end, however
hurtful the protest was to the grieving family and friends of the fallen soldier, the
arguably private context could not transform speech about a matter of public
concern into speech about the Snyder family's loss. Id. at 455.
On the other end of the spectrum fall San Diego and Connick. In San Diego,
the Court held that a police officer's in-uniform amateur pornographic videos
constituted speech about a private matter, as the videos "did nothing to inform the
public about any aspect of the [San Diego Police Department's] functioning or
operations." 543 U.S. at 84. And in Connick, the Court determined that an
unhappy employee was speaking about a matter of private concern when she
circulated a questionnaire to her colleagues regarding "confidence and trust ... in
various supervisors, the level of office morale, and the need for a grievance
committee" because the questions simply "reflect[ed] one employee's

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dissatisfaction with a transfer and an attempt to turn that displeasure into a cause
celebre." 461 U.S. at 148.
At minimum, Gersh has made a plausible claim that Anglin' s speech
involved a matter of strictly private concern. Unlike in Snyder, here there is a
suggestion that "speech on public matters was intended to mask an attack ... over
a private matter." Snyder, 562 U.S. at 455. Indeed, Anglin's speech may
ultimately be found to have been "contrived to insulate speech on a private matter
from liability." Id. Regardless of how he packaged his posts about Gersh to his
readers, Anglin's speech "did nothing to inform the public about any aspect" of a
matter of public concern. San Diego, 543 U.S. at 84. Anglin instead broadcast
information-not only about an alleged real estate dispute, but also contact
information for Gersh and those with whom she was associated--on his website as
"an attempt to turn" Anglin's personal hostilities into "a cause celebre." Connick,
461 U.S. at 148.
The context of the case is, at first blush, public-a series of blog posts on an
alt-right "news" blog, which often engages with political issues, albeit from an
extremist viewpoint. However, under a liberal interpretation of the Complaint, the
content of the speech may be seen as strictly private; Anglin launched a campaign
of unrelated personal attacks on a Whitefish realtor, her husband, and their son

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because of a perceived conflict between Gersh and the mother of Anglin's friend,
another white supremacist. Although Anglin drew heavily on his readers' hatred
and fear of ethnic Jews, rousing their political sympathies, there is more than a
colorable claim that he did so strictly to further his campaign to harass Gersh.
Indeed, the facts here follow a pattern inverse from that presented in Snyder, as the
public context of the Daily Stormer posts cannot "transform the nature of
[Anglin's] speech." Snyder, 562 U.S. at 454.
The Court cannot find that Anglin' s speech is unprotected on the basis that
it evinces a morally and factually indefensible worldview. See, e.g., Police Dep't
of Chicago v. Mosley, 408 U.S. 92, 95 (1972) ("Above all else, the First
Amendment means that government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content.") That said, it hardly makes
sense to conclude-as Anglin contends-that Anglin' s posts and sponsored troll
storm are entitled to additional protection because of their anti-Semitic content. A
state may protect its residents from "repeated unwanted telephone calls that are
harassing due to their sheer number and frequency." Osinger, 753 F.3d at 954
(citing with approval Gormley v. Director, Connecticut State Dep 't ofProbation,
632 F.2d 938, 941--42 (2d Cir. 1980), in which the Second Circuit upheld a
Connecticut statute regulating harassing telephone calls as "an unwarranted
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invasion of privacy"). In this case, the fact that Gersh heard anti-Semitic slurs on
the other end of the line does not tip the scales in Anglin's favor.
Anglin further argues that his speech involved a matter of public concern
because it focused on Gersh, who was a public figure. Even otherwise regulatable
speech may be entitled to special protections when its subject is a general public
figure-one with "pervasive fame or notoriety"-or a limited purpose public
figure-one who "voluntarily injects himself or is drawn into a particular public
controversy and thereby becomes a public figure for a limited range of issues."
Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). Here, there is no question
that Gersh is not a general public figure; of the cast of characters in this matter,
only Richard Spencer and Andrew Anglin have reached "pervasive fame or
notoriety." Rather, Anglin argues that Gersh became a limited purpose public
figure when Sherry Spencer published an article in an online forum criticizing
Gersh. At this point, the argument becomes somewhat circular, as whether Gersh
is a limited purpose public figure depends wholly on Gersh' s participation in a
matter of public concern.
Anglin contends that Gersh injected herself into a matter of public concern
by discussing the sale of Sherry Spencer's building with Spencer. Anglin argues
that his speech about Gersh was both "in support of Richard Spencer's speech in
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support of President Trump" and "related to the growth of white nationalism in
Whitefish, and the community's response thereto." (Doc. 91 at 8.) However,
Gersh has plausibly alleged that she did not initiate conversations regarding the
sale of Sherry Spencer's buildings; if, indeed, she was "dragged unwilling" into a
public controversy, she is not automatically fair game for all manner of public
criticism. Wolston v. Reader's Digest Ass 'n, Inc., 443 U.S. 157, 166 (1979).
Even if Anglin were correct, though, there is little to no connection between
Anglin's troll storm and Gersh's involvement in an alleged real estate dispute, let
alone with Richard Spencer's support of President Trump or the Whitefish
community's disapproval of white nationalism. See Gertz, 418 U.S. at 351-52
(explaining that a limited purpose public figure enjoys fewer protections as to the
"limited range of issues" to which she is relevant). "A court must focus on the
'nature and extent of an individual's participation in the particular controversy
giving rise to the [state tort]."' Wolston, 443 U.S. at 167 (quoting Gertz, 418 U.S.
at 352). Here, construing the facts in the light most favorable to Gersh, "[Gersh]
played only a minor role in whatever public controversy there may have been
concerning" Richard Spencer and the alt-right agenda. Id Her involvement in the
potential sale of Sherry Spencer's building is not enough to "render[] [her] a public

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figure for purposes of comment" on Richard Spencer and the modem white
nationalist movement. Id.
Anglin did not use his speech about Gersh to raise awareness for issues
consonant with the alt-right agenda. See Snyder, 562 U.S. at 454. Rather,
construing the allegations in the Complaint as true, Anglin exploited the prejudices
widely held among his readers to specifically target one individual. Moreover, the
Court concludes that, at this stage of the litigation, it cannot agree with Anglin that
his speech was indisputably tethered to Gersh' s conduct in engaging in a matter of
public controversy. See Walston, 443 U.S. at 167. Accordingly, the Court agrees
with Judge Lynch's finding that "[w]hether the speech giving rise to Gersh's
claims addressed public or private matters for First Amendment purposes is
properly addressed on a fully developed factual record." (Doc. 85 at 12.)4
II.

Liability for Third-Party Conduct

Judge Lynch found that, "[t]o the extent Gersh is seeking to hold Anglin
accountable for the conduct of his readers," (Doc. 85 at 18), "Gersh has alleged
sufficient facts to support a cognizable legal theory," (Doc. 85 at 24). Anglin
argues that Judge Lynch erred in finding that Anglin may be held liable for the

4

Because the Court agrees with Judge Lynch's determination that Gersh's Complaint survives a
First Amendment challenge without consideration of the captive audience doctrine, it does not
address that issue in this Order.

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speech of participants in his troll storm who harassed and threatened Gersh and her
family. Anglin contends that: (I) Gersh' s allegations cannot satisfy the
"substantial assistance" test under Montana law; and (2) the First Amendment
insulates Anglin from liability pursuant to NAACP v. Claiborne Hardware Co.,
458 U.S. 886 (1982).
Anglin claims that even the worst of his readers' messages do not fall within
a historically recognized category of unprotected speech. Setting aside the
question of whether, for example, a voicemail message consisting solely of the
sound of gunshots constitutes a "true threat," Anglin misconstrues the issue.
Again, the relevant question is whether the speech regards a matter of public
concern. And, as discussed above, there is, at minimum, a plausible allegation that
the speech does not. If Anglin's speech in calling for a troll storm is not entitled to
First Amendment protection, then it stands to reason he can be equally subject to
tort liability under various theories. 5
Anglin' s argument to the contrary is based primarily in Claiborne

Hardware, 458 U.S. 886. However, as Judge Lynch found, Claiborne Hardware
5

The Court notes that the Supreme Court cases addressing the public concern test do not depend
on the specific state tort theory alleged. For example, in Snyder, the Court was not concerned
with the precise elements required to state a claim for intentional infliction of emotional distress
under Maryland law. 562 U.S. at 451-52. Rather, because the Constitution is implicated only to
the degree that Anglin's speech is entitled to protection, the Court need not, at least at this stage
of the litigation, be overly concerned with how Anglin may be held liable under Montana law.

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is specific to the issue of incitement, a theory that Gersh has not pursued in this
litigation. (Doc. 85 at 21 ). Reviewing de novo, the Court agrees with Judge
Lynch's analysis of this issue.
Claiborne Hardware involved a boycott of white merchants in Mississippi,
instigated and organized in part by a local branch of the NAACP. 458 U.S. 886.
The lower courts determined that an NAACP spokesperson could be held liable to
the merchants for lost earnings because he had delivered speeches advocatingperhaps rhetorically, perhaps not-for the use of force against black citizens who
continued to patronize the white merchants. Id at 894-95. However, the Supreme
Court disagreed, holding that the spokesperson was insulated from liability because
he had not himself "authorized, ratified, or directly threatened" unlawful activity,
i.e., violence. 458 U.S. at 929. The Court further concluded that the spokesperson
did not have an affirmative duty to "repudiate" unlawful activity. Id
Claiborne Hardware is inapposite for at least two reasons. First and most
importantly, the case is legally distinguishable. Here, unlike the speaker in
Claiborne Hardware, Anglin was not speaking on a matter of public concern. The
First Amendment is considerably more concerned with a concerted action to
address racial discrimination than it is with the ethnic background and contact
information of a realtor who was arguably involved in a real estate dispute with the

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mother of Richard Spencer. Thus, while the NAACP spokesperson's speech,
absent a finding of incitement, falls within the core of the First Amendment,
Anglin's speech does not. See supra pages 5-14. Second, Claiborne Hardware is
factually distinguishable. To the degree that the NAACP spokesperson called on
his supporters to engage in unlawful conduct, that conduct did not actually occur.
Claiborne Hardware, 458 U.S. at 928. Here, on the other hand, the harm alleged
by Gersh is precisely the type of harm not only anticipated but requested by Anglin
in his Daily Stormer posts. See id. at 928 ("If [the] language had been followed by
acts of violence, a substantial question would be presented whether [the
spokesperson] could be held liable for the consequences of that unlawful
conduct.").
Indeed, to the extent that Claiborne Hardware provides guidance, it
advances Gersh's theory. The Court held that "[f]or liability to be imposed by
reason of association alone, it is necessary to establish that the group itself
possessed unlawful goals and that the individual held a specific intent to further
those illegal aims." Id. at 920. The standard is met when the individual
"authorized, directed, or ratified specific tortious activity." Id at 927. The test
does not require, as Anglin ostensibly posits, that the "specific tortious activity" be
physically violent.
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The Claiborne Hardware standard finds a mirror in Montana's substantial
assistance test. Under Montana law, the substantial assistance test enables a
plaintiff to seek damages from a defendant for the tortious conduct of another
when the defendant "knows that the other's conduct constitutes a breach of duty
and gives substantial assistance or encouragement to the other so to conduct
himself." Sloan v. Fauque, 784 P.2d 895, 896 (Mont. 1989) (quoting Restatement
(Second) of Torts§ 876 (1979)). In other words, liability may follow when an
individual "authorized" or "directed" "specific tortious activity," Claiborne

Hardware, 458 U.S. at 927-the "breach of duty" required to satisfy the
substantial assistance test under Montana law, Sloan, 784 P.2d at 896.
Turning to the facts alleged in this case, Anglin contends that the substantial
assistance test cannot be satisfied by Gersh's allegations because Gersh "fail[ed] to
plead the requisite knowledge element." (Doc. 91 at 14.) The Court disagrees.
Gersh alleged that Anglin expressly summoned a troll storm, publishing personal
and professional contact information for the Gersh family, and offering samples of
the types of anti-Semitic and misogynistic messages his readers should leave. He
oversaw a discussion board on his website, in which he interacted with readers
who posted comments about their trolling tactics. It is not unreasonable to
conclude from these facts that Anglin knew what his readers were doing.
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"No first amendment defense need be permitted when words are more than
mere advocacy, so close in time and purpose to a substantive evil as to become part
of the [tort] itself'-"an integral and essential part of ongoing [tortious] activity."
United States v. Mendelsohn, 896 F.2d 1183, 1186 (9th Cir. 1990) (internal
quotation marks omitted). Construing the Complaint in the light most favorable to
Gersh, Anglin's posts and his readers' messages are part of the same "ongoing
activity" with the same ultimate aim. Thus, the Court agrees with Judge Lynch
that Gersh presented a cognizable theory by which the messages left by Daily
Stormer readers may form a basis for damages against Anglin.

III.

The Sufficiency of Gersh 's Allegations

Regarding Anglin's third challenge to this lawsuit's continued survival,
Judge Lynch concluded that "Gersh has adequately stated claims under Montana
law for invasion of privacy, intentional infliction of emotional distress, and
violations of the Anti-Intimidation Act." (Doc. 85 at 30). Anglin challenges Judge
Lynch's Findings and Recommendation as to each cause of action.
First, under Montana law, a plaintiff may bring a claim for invasion of
privacy under the subtheory of intrusion upon seclusion-"a wrongful intrusion
into one's private activities in such a manner as to outrage or cause mental
suffering, shame, or humiliation to a person of ordinary sensibilities." Mont. Bd. of
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Dentistry v. Kandarian, 886 P.2d 954, 957 (Mont. 1994). Judge Lynch found that
the allegations of the Complaint, if true, could satisfy the applicable test because
the series of harassing and threatening communications-sent first- and secondhand to Gersh via nearly every potential line of communication--could be seen as
a "wrongful intrusion" into Gersh's private life.
Anglin's objections as to this issue are inextricable from his First
Amendment objections, and they fail for the same reasons. He contends that Gersh
did not have a reasonable expectation of privacy because her discussions with
Sherry Spencer should be read as welcoming public engagement. (Doc. 91 at 1820.) However, as discussed above, Gersh's allegations do not give rise to such a
finding. See supra pages 12-14; see also San Diego, 543 U.S. at 83 ("[T]he
standard for determining whether expression is of public concern is the same
standard used to determine whether a common-law action for invasion of privacy
is present."). Anglin also argues that his conduct was not intrusive, even if his
followers' conduct was. Again, the Court concludes that at least some of Anglin' s
followers' conduct can be considered as a basis for liability under the First
Amendment. See supra pages 14-19. And, at this stage of litigation, Anglin
cannot avoid liability on the grounds that he merely posted publicly available
information, such as Gersh' s social media accounts, as Gersh alleges that Anglin
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posted this information in order to further his goal of "outrag[ing] or caus[ing]
mental suffering, shame, or humiliation" to Gersh. Kandarian, 886 P.2d at 957.
Second, a claim for intentional infliction of emotional distress "arise[ s]
under circumstances where serious or severe emotional distress to the plaintiff was
the reasonably foreseeable consequence of the defendant's ... intentional act."
Sacco v. High Country Ind. Press, 896 P.2d 411, 429 (Mont. 1995). Responding to
Anglin's argument that Gersh's damages were not "reasonably foreseeable" to
Anglin, Judge Lynch determined that Gersh presented a cognizable claim by
"alleg[ing] that Anglin assisted, encouraged, and ratified a vicious campaign of
anti-Semitic harassment against her and her family." (Doc. 85 at 27.) Anglin
objects, again, on First Amendment grounds, arguing that he cannot be held liable
for the conduct of his readers and that Judge Lynch's findings constitute
viewpoint-based discrimination. (Doc. 91at21-22.) However, Anglin presents no
authority for his position that the Court should conduct an additional layer of First
Amendment review in analyzing the elements of his claim. See supra n.5. The
Court has thoroughly considered his free speech arguments and finds that a
decision for Anglin at this stage would, at minimum, be premature. Accordingly,
the Court agrees with Judge Lynch as to the adequacy of this claim.

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Third and finally, Montana's Anti-Intimidation Act creates a cause of action
for "[a]n individual or organization who is attempting to exercise a legally
protected right and who is injured, harassed, or aggrieved by a threat or
intimidation ... against the person engaging in the threatening or intimidating
behavior." Mont. Code Ann. § 27-1-503(2). Setting aside the question of the
constitutionality of the Act, see supra n.2, Judge Lynch determined that "Gersh has
alleged facts showing that she was attempting to exercise her legally protected
rights to privacy and to freely practice her religion at the time of Anglin's allegedly
wrongful conduct." (Doc. 85 at 28.) Anglin argues that the Complaint does not
give rise to such a determination, as Gersh alleged only that Anglin interfered with
her speech rights, rather than her privacy and free exercise rights. However, the
Court cannot take such a parsimonious approach to the pleadings; the Complaint
includes allegations that Gersh practices Judaism6 and, as discussed above, Gersh
presented a cognizable claim for invasion of privacy. No magic words were
needed in the Complaint when the allegations of the Complaint, as a whole, could
support a finding that Anglin' s conduct interfered with Gersh' s privacy and ability
6

Anglin further argues that he did not interfere with Gersh's free exercise rights because
"[a]lthough the speech addressed Ms. Gersh's status as a Jew, it did so in the context of ethnic
background, rather than any attention to the practice of her faith." (Doc. 91 at 24.) Anglin's
argument is too clever by half. The focus is on whether Anglin's intimidating and harassing
speech interfered with Gersh's free exercise rights. It is indifferent to the source of Anglin's
hostility to Gersh.

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Case 9:17-cv-00050-DLC-JCL Document 116 Filed 11/14/18 Page 23 of 23

to freely practice her religion. The Court agrees with Judge Lynch that Gersh's
claim may proceed.
Reviewing the remaining portions of Judge Lynch's Findings and
Recommendation for clear error and finding none,
IT IS ORDERED that Judge Lynch's Findings and Recommendation (Doc.
85) are ADOPTED in full.
IT IS FURTHER ORDERED that Anglin's Motion to Dismiss is DENIED
to the extent it seeks dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be granted.
DATED this

14<ktday ofNovember, 2018.

Dana L. Christensen, Chief Judge
United States District Court

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