Post-Seraw legal strategy moves into online hatred
The civil rights watchdog behind the successful Mulugeta Seraw lawsuit is once again breaking new legal ground — this time against "electronic hate."
Two lawyers on the board of the Southern Poverty Law Center discussed the organization's current lawsuit against the neo-Nazi "Daily Stormer" website during the Nov. 13 conference commemorating the 30th anniversary of Seraw's death at the hands of racist skinheads in Southeast Portland.
San Diego attorney James McElroy and Portland attorney Elden Rosenthal discussed the potentially precedent-setting case during a breakout session at the conference.
"Electronic hate is the new frontier," McElroy said at the conference, which was co-sponsored by the Urban League of Portland and Portland State University. It was held exactly 30 years after Seraw's beating death on Nov. 13, 1988.
In some ways, the current lawsuit is similar to the one that grew out of Seraw's death. In that case, Seraw's family filed a civil wrongful-death lawsuit in Multnomah County Circuit Court against California white supremacist leaders Tom and John Metzger for inspiring the skinheads who killed him. The family was represented by SPLC attorneys and assisted by Rosenthal, who served as co-counsel. A jury agreed the father and son shared responsibility for the killing, and awarded the family $12.5 million, bankrupting their organization, the White Aryan Resistance.
The current SPLC lawsuit also is related — though not as directly — to a more recent high-profile racially charged incident where someone was killed, the Unite the Right rally in Charlottesville, Virginia. It was organized by alt-right leader Richard Spencer. A far-right activist there drove his car into a crowd of counterprotesters on Aug. 12, 2017, killing Heather Heyer and injuring 19 others.
As McElroy and Rosenthal explained at the conference, the year before the rally, Spencer's mother Sherry began to worry that her son's politics would spark protests at a commerical building she owns in Whitefish, Montana.
Sherry Spencer talked to a local Realtor, Tanya Gesh, about selling the property. Sherry then attacked Gesh, who is Jewish, in a blog post, claiming the Realtor was trying to exploit her concerns.
That prompted Andrew Anglin, founder and editor of the "Daily Stormer," to urge his followers to launch a "troll storm" against Gesh and her family in December 2016. The website posted the family's street address, email addresses and social media accounts, a form of harrassment known as "doxing" in the online world.
The targeting resulted in a barrage of hateful and anti-Semitic email and social media attacks against the family, causing them to fear for their lives and forcing them to cancel their email and social media accounts, the two lawyers said.
With the assistance of the SPLC, the family filed a lawsuit against Anglin in the U.S. District Court for the District of Montana, Missoula Division, seeking compensatory and punitive damages. The suit accuses Anglin of invading the family's privacy and intentionally inflicting emotional distress. It also outlines how his campaign violated the Montana Anti-Intimidation Act.
Anglin tried to have the lawsuit dismissed by arguing his postings were free speech protected by the First Amendment. The chief justice of the district court recently ruled the online threats are not protected by the First Amendment and the case can proceed.
"The First Amendment does not give you the right to harm someone. Especially when the speech invades someone's home and office with the intent of causing harm," Rosenthal said.
Anglin's attorney says the ruling could be bad for free speech.
"That ruling, if it stands, is not going to be good for anyone who engages in common outrage culture," Marc Randazza, one of Anglin's attorneys, reportedly said after the ruling. "Maybe that's a good thing, but I think not."
As McElroy and Rosenthal acknowledged, there are significant differences between the Seraw and Gesh lawsuits. In the Seraw case, SPLC lawyers argued the Metzgers had sent a personal representative, a skinhead named Dave Mazzella, to Portland to organize and train the skinheads here to commit hate crimes. In the Gesh case, the SPLC lawyers admit Anglin's communications were all online.
In addition, Anglin is represented by attorneys, while the Metzgers were not.
But the two lawyers insisted the results were the same, and that people inspired from a distance by Anglin took actions that easily could have been predicted to harm someone because of their protected class status.
McElroy and Rosenthal also said the SPLC has actively worked to cut off funding and internet access to the "Daily Stormer" and other sites that promote hate. Among other things, the SPLC has pressured PayPal and other processors from assisting their financial transations. Such pressure is legal, the two lawyers said, because the platforms are private businesses, not government entities.
"It's not censorship because the government is not doing it," McElroy said.
The SPLC is far from alone in applying such pressure. Across the river from Portland, the far-right, Vancouver-based Patriot Prayer has lost its GivingFuel donation page, and its merchandise was removed from apparel company Teespring's online shop.
Rosenthal said such efforts are even more important now than they were 30 years ago.
"We are living in dangerous times," Rosenthal said. "We have to do everything we can to save this country from the pressures that can lead to anarchy."