BY HANK REICHMAN
Discussing targeted online harassment of faculty members in The Future of Academic Freedom, I wrote:
It’s not only faculty; students too may become targets. For example, “after American University elected the first African-American woman to lead its student body, the white supremacist leader who founded one of the largest hate sites on the internet began an online campaign to troll her and her sorority with racist taunts.” Andrew Anglin, neo-Nazi founder of the Daily Stormer website, posted pictures and video of Taylor Dumpson, along with links to her Facebook account and American University’s Twitter address, directing his readers to “troll storm” her with a barrage of racist and demeaning messages on social media. The university provided police protection for Dumpson, who on April 30, 2018, filed a lawsuit against Anglin and two others. (page 82)
Taylor Dumpson
This week a federal judge ordered Anglin and his associate Brian Andrew Ade — who posted nine racist tweets, comparing Dumpson to a gorilla and a chimp and calling her a “sheboon” — to pay Dumpson over $700,000 in compensatory and punitive damages and legal fees. Friday’s decision, in the U.S. District Court for the District of Columbia, may mark the first time a court has ruled that racist online trolling activity can interfere with one’s equal access to a public accommodation, according to Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, which represented Dumpson, who is herself now a law student.
“We think that this essentially opens up a new avenue to attack the dangerous activities of white supremacists in our country,” Clarke said in an interview. “I would expect that other litigators will be able to use the ruling in this case to seek justice on behalf of other victims of hate crimes.”
Judge Rosemary M. Collyer ordered the defendants to pay more than $101,000 in compensatory damages, $500,000 in punitive damages and more than $124,000 in attorney’s fees. She also entered a restraining order against them. “Ms. Dumpson was targeted because of her race and gender,” Judge Collyer wrote in her ruling.
This was the third judgment in the past three months against Anglin. In a separate case on Thursday, a $14 million judgment was rendered against him. Tanya Gersh, a Jewish real estate agent in Montana, was awarded that figure in a judgment against Anglin after he led an online antisemitic harassment and intimidation campaign against her in 2016 because of her interactions with Sherry Spencer, the mother of the white supremacist leader Richard Spencer. In June, comedian Dean Obeidallah was awarded $4.1 million in a judgment against Anglin after The Daily Stormer published an article falsely accusing him of being a terrorist. Anglin now owes a total of nearly $20 million to three people, but they have yet to see a cent in payments. His whereabouts are unknown,.
In December Dumpson reached a settlement with a third defendant, James McCarty, an Oregon native. On Twitter, McCarty posted Dumpson’s location on multiple occasions and once told his followers, “Everybody bring bananas.” He also tweeted “READY THE TROOPS” and tagged the student government president’s Twitter account in a tweet that read “OOGA BOOGA.” McCarty posted online under the pseudonym Byron de la Vandal, a reference to Byron De La Beckwith, the Ku Klux Klan member who assassinated civil rights leader Medgar Evers in the 1960s.
The terms of the settlement, as reported by Inside Higher Ed, included the following:
McCarty is not allowed to participate in online trolling or doxing, which is the practice of making personal information public online. He must also complete 200 hours of community service on racial justice and agree to participate in the lawsuit against Anglin and other white supremacists. Anglin did not respond to a request for comment.
McCarty must also apologize to Dumpson in writing and on a recorded video, which Dumpson can use for “civil rights advocacy, outreach and educational purposes.”
In the apology, McCarty must renounce white supremacy, sexism and other forms of hate and bigotry and describe how he is “confronting” his own prejudice, namely through counseling, according to a statement from his parents, Deb and James McCarty.
These rulings and settlement raise questions about the extent to which “doxing,” revealing normally private details about individuals with the intent of encouraging their harassment, can be protected by the First Amendment. A 2018 decision by a federal appeals court found that students at the University of Mary Washington were permitted to pursue a lawsuit against the institution for allegedly failing to protect them against online harassment. This ruling could clarify that colleges need to shield students from such attacks.
On the other hand, the Wisconsin Supreme Court found last year that criticisms of a graduate student instructor made online by Marquette University professor John McAdams, which involved disclosure of private information about her leading to harassment and her departure from the university, were protected by academic freedom. Previously a faculty hearing committee had ruled (correctly, I believe) that much of McAdams’s commentary was protected by academic freedom, but not his efforts to encourage harassment. (I discuss this problematic case at length in The Future of Academic Freedom, pages 90-102.)
I find cases of civil liability for hate speech a troubling trend. Isn’t this just the government banning hate speech by bankrupting the racists? Doxxing is a slightly different issue, involving questions of implicit threats, but a difficult one. As for the McAdams case, it should be noted that the alleged “disclosure of private information” was a link to the graduate student’s own website, which certainly can’t be called private.
The issue is not hate speech, a term not employed in this litigation. The issue is harassment, which along with incitement and true threats is a legal term germane to this issue. Go to some of the linked articles to see some of what Anglin did (not just said) to Dumpson. It’s not simply “speech,” whether hateful or not. It’s action, what most would call harassment. As for McAdams, it is simply untrue that all he did was provide a link to her web page. I don’t have the faculty hearing committee report at hand, but that committee did find that while much of McAdams’s blog post was protected by academic freedom, his actions caused harm that was “substantial, foreseeable, easily avoidable, and not justifiable.” And the dissenting judges in the legal case found that McAdams was aware in advance that his identification of the student would provoke the kind of abusive response it did and that he actively promoted the blog and distributed to the media copies of a surreptitiously obtained audio recording of her confrontation with the student. The dissent concluded “that McAdams indeed did ‘instigate’ or ‘invite’ the vileness that followed his blog post. He knew what would happen, and he actively ensured that it would happen.”
To be sure, there may not always be a clear line between legal hate speech and illegal harassment and people will differ about where to draw that line. But so what? Lines can and should be drawn. Let me quote from a 1971 AAUP investigating report which dealt with such line-drawing when the issue was “fitness for position.” The report stated: “At some stage in a contested argument over academic responsibility and fitness to teach, appeal must be made to someone’s judgment in applying what are necessarily somewhat imprecise standards for the limits of propriety of extramural controversy.” And this is what courts do as well in cases like Dumpson’s and McAdams’s, through legal due process.
The decision can be difficult and verdicts will vary, but the difficulty of drawing a distinction is not a valid argument for refusing to do so. That is known as the fallacy of the continuum, or, as it was more colorfully called by medieval logicians, the fallacy of the beard. Here is one definition of that fallacy we can find on the Internet: “When one argues that no useful distinction can be made between two extremes, just because there is no definable moment or point on the spectrum where the two extremes meet. The name comes from the heap paradox in philosophy, using a man’s beard as an example. At what point does a man go from clean-shaven to having a beard?” And here, from the same site, is the logical form of the fallacy: “X is one extreme, and Y is another extreme. There is no definable point where X becomes Y. Therefore, there is no difference between X and Y.” (https://www.logicallyfallacious.com/tools/lp/Bo/LogicalFallacies/58/Argument-of-the-Beard)
So, at what point does one go from legal hate speech (X) to illegal harassment (Y)? Not always easy to determine, but it can and should be determined because the two are not the same. And Anglin was pretty clearly harassing, not just speaking, hatefully or otherwise.
It is my impression that there is no such legal entity as “hate speech.” The Supreme Court has ruled on this at least three times. There must be some other crime involved — harassment, etc.?
From Wikipedia: “Hate speech in the United States is not regulated, in contrast to that of most other liberal democracies. The U.S. Supreme Court has repeatedly ruled that hate speech is legally protected free speech under the First Amendment. The most recent Supreme Court case on the issue was in 2017, when the justices unanimously reaffirmed that there is effectively no “hate speech” exception to the free speech rights protected by the First Amendment.
In academic circles, there has been debate over freedom of speech, hate speech and hate speech legislation.
See my response to John Wilson above.
One might wonder where harassment ends, and political agenda begins. The following quote from the above article, pretty much says it all: “We think that this essentially opens up a new avenue to attack the dangerous activities of white supremacists in our country,” Clarke said in an interview. “I would expect that other litigators will be able to use the ruling in this case to seek justice on behalf of other victims of hate crimes.”
So who really benefits here? The National Trial Lawyers Organization?
Given the judge’s pedigree from the Bush administration moreover, and her executive leadership role as Presiding Judge in the purportedly corrupt FISA court, some sober skepticism may be warranted: https://tennesseestar.com/2018/09/06/judicial-watch-busts-fisa-court-corruption/;
Moreover, there is a string of fallacies of assertion working here in this case: what number of data points make it possible to generalize inductively about intent among a purported new “class” of harassers? This case is obviously resting on a statistical outlier, an individual (with an obvious programmatic profile), yet being opportunistically promoted for special interest identitarian motivations.* This is where the academy can break down in its challenge to remain objective, and to uphold standards of rational empiricism. This case violates such standards (not per se necessarily, but in its overly broad interpretation). The academy is again propagating mass hysteria by its uncritical absorption of special interest narratives, and using them merely for its own labor market advocacy.
Who suffers? Students and the fidelity of their cognitive development.
*See Professor Nicholas Capaldi’s insightful and wise paper, “The Pathology of Identity Politics:” https://www.researchgate.net/publication/326417275_The_Pathology_of_Identity_Politics