The ACLU, Foundation for Individual Rights in Education (FIRE), and other legal experts are collectively denouncing the arrest of an anti-Black Lives Matter demonstrator at East Tennessee State University (ETSU), saying criminal charges brought against the protester are grossly unconstitutional.
Tristan Rettke, an 18-year-old freshman, showed up to a BLM rally Sept. 28 dressed up in a gorilla mask and handing out bananas, one of which he had a small rope tied around. Rettke’s provocative protest ended prematurely when police arrived and arrested him, even though he was not attacking or threatening anybody during his stunt.
Rettke, who has already withdrawn from ETSU, was subsequently charged with “civil rights intimidation,” a felony that criminalizes behavior that “injures or threatens to injure … another person with the intent to unlawfully intimidate another from the free exercise or enjoyment of any right or privilege secured by the constitution or laws of the state of Tennessee.”
The school, and some media outlets, were quick to denounce Rettke, but now other organizations are piping up to defend his free speech rights.
FIRE, the premier advocate for civil liberties on U.S. campuses, published a lengthy analysis of the case Monday. In the analysis, attorney Adam Steinbaugh argues the prosecution of Rettke is almost totally unjustified and that his conduct is almost certainly protected by the First Amendment. Steinbaugh also argues the prosecution of Rettke is based on ideas of provocation that were previously used to suppress civil rights protests:
Police officers characterized Rettke’s statement to them as evidencing an intent to “provoke” peaceful protesters. Yet seeking to provoke others is generally protected speech, and similar prohibitions on “intimidation” have been struck down on First Amendment grounds as vague and overbroad. In Armstrong v. Ellington, for example, a federal court struck down a law prohibiting disturbance of the peace “for the purpose of intimidating or terrorizing […] any citizen […] to do or not to do any lawful thing[.]” This statute was used during the civil rights era, both in that case and as a matter of routine, to suppress black protesters peacefully protesting in Memphis.
FIRE isn’t standing alone. The ACLU of Tennessee has gotten into the game as well, saying Rettke broke no laws even if his behavior was contemptable.
“While the student in this instance clearly intended to mock and provoke people, from video of the incident he did not appear to be making a targeted threat or to be creating a real fear of bodily harm,” President Hedy Weinberg said in a statement over the weekend. “Particularly in a public forum space where First Amendment protections are at their height, even this kind of contemptible racist speech is protected by the First Amendment.”
Hans Bader, an attorney with the Competitive Enterprise Institute, joined the chorus of voices denouncing the arrest.
“The government can’t ban insulting speech as ‘civil rights intimidation,'” he told Liberty Unyielding. “Being offended doesn’t mean you were threatened, much less constitute a ‘true threat’ the government can criminally prosecute.”
If Rettke’s behavior was protected by the First Amendment, then the actions of ETSU administrators could come back to bite them. The school’s Division of Student Affairs said in a statement Friday that Rettke “will not be enrolling in the future,” a declaration that almost certainly has no legal force if it is a punishment for Rettke’s speech.
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