Joshua Andrew Garton did a morally reprehensible and utterly abhorrent thing. He posted a fake photo of people urinating on the grave of a dead police officer. The reason Garton did something so despicable is unclear. When a local reporter reached out to those who knew him, the answer was that Garton had mental health problems and was in urgent need of treatment. In the United States, however, suspected mental illness citizens are far more likely to be arrested and jailed than medicated – mostly as a result of nonviolent acts, according to the National Alliance on Mental Illness. That brings us to what I think is the worst part of this story, which is that the police decided to arrest Garton for posting the fake photo.
What makes the arrest so bad is that Garton’s post clearly falls into the type of symbolic speech that has long been recognized as being protected from government retaliation or punishment by the First Amendment. It is also clear that Garton’s speech does not fall into one of the “precisely defined and narrowly limited language classes” that do not have recognized First Amendment protection such as profanity, defamation, fraud, real threats, incitement or language integral to criminal behavior. But wait, some may ask, isn’t it fair to classify Garton’s misrepresentation of two people urinating on the grave of a dead cop as obviously obscene? The answer is, while it is fair to call Garton’s contribution disgusting by moral standards, the legal definition of profanity is very specific, and this contribution clearly does not conform to that legal definition.
In Miller v. California, the Supreme Court set the basic elements of profanity which consider the following:
(1) whether the average person applying contemporary community standards would find work as a whole appeals to the pressing concern; (2) whether the work depicts or describes overtly offensive sexual behavior specifically defined by applicable state law; and (3) whether the work as a whole has no serious literary, artistic, political, or scientific value.
Recall that in Miller, the result of the case was that a man who mailed unsolicited pornographic magazines had reversed his belief. In other words, the profanity standard is very tight and the Supreme Court has denied any attempt to broaden it. Most importantly, nothing in Garton’s post – which did not depict sexual behavior or even sexual organs – could reasonably be classified under the category of legally obscene or otherwise recognized exceptions to freedom of speech that are equally narrow or narrower. Nonetheless, Garton was arrested for his clearly protected speech.
In fact, Garton has been charged under the Tennessee Criminal Harassment Act, which in part criminalizes communication. “[w]with malicious intent to scare, intimidate, or cause emotional stress. “The problem is that such state laws must nonetheless conform to the guarantees of first amendment, and it is absurdly obvious to anyone competent, or at least obliged to comply with the Constitution, that Garton’s post was a protected speech.
With no legitimate legal reason whatsoever, the obvious explanation for what happened is that the police were morally angry and offended and decided to arrest Garton for disregarding one of their own. Damn the constitution. And it is precisely this decision by state agents to abandon the constitution that makes the arrest the worst part of it all. Simply put, Garton didn’t break the law, but the police did. Here I am also telling you that living in a “free society” means constantly being exposed to shocking, disgusting, and offensive language. This means that police officers who took real photos mocking the death of someone killed by the police must also be free from arrest. No matter how many of them are upset or want it to be different.
What makes the arrest undeniably worse is that even if Garton inevitably drops his arrest and eventually sues (which he will), it will be the only truly innocent people in all of this – the taxpayers – who will ultimately end up on the Stand up hooks of accountability. The individuals responsible for this manifestly unconstitutional arrest are frustratedly shielded from accountability by virtue of the court-established doctrine of qualified immunity combined with compensation. It is this shield from accountability that undoubtedly explains the brazen illegal arrest itself. I mean, if you can never be held accountable for violating constitutional rights, then why care about such rights when you really want to send a message to the lowly public about who can disregard whom?
However, if Garton receives the civil award he deserves, one can only hope that he will use it to receive the psychological treatment that those around him deem necessary. It is probably too much to hope that progressives will view this case as a warning of the expansion of language restrictions, or that conservatives will highlight the desperate need to hold police officers accountable for violating constitutional rights. Please excuse me while I pull my hair out.
Tyler Broker’s work was published in the Gonzaga Law Review, the Albany Law Review, and appears in the University of Memphis Law Review. Feel free email him or follow him further Twitter to discuss his column.