Tennessee Prosecutors Shocked To Discover That Shitposting Is Not A Crime. Not Even When It’s About Cops!

Some First Amendment cases pose deep, complicated policy questions. Some read like law school issue spotters. And some are just really f*cking stupid.

The arrest of a Tennessee man for posting an offensive meme on Facebook falls squarely into the third category, which is why it just cost the state $125,000.

In January of 2021, Joshua Garton posted a doctored image from the single “Pissing on Your Grave” by The Rites with the caption “Just showing my respect to Deputy Daniel Baker from the #dicksonpolicedepartment.” Sergeant Daniel Baker was killed in the line of duty in 2018, and while Garton’s post was clearly gross and offensive, it was also clearly protected by the First Amendment.

Nevertheless, the Tennessee Bureau of Investigations arrested Garton, and W. Ray Crouch, District Attorney General for Tennessee’s 23rd Judicial District, charged him with one harassment count on January 22, 2021. Then they took to social media to pat themselves on the back for a job well done.

But instead of a hearty round of applause for their brave detective work (and excellent spelling!), they found themselves screamed at by their own constituents and attacked in the national media for being “Constitutionally Illiterate.” The police and prosecutors responded by battening down the hatches, and firing off a bunch of incriminating communications.

“He has a right to post. That doesn’t mean there are no consequences,” reads one text disclosed in discovery.

Another acknowledges that “we violated his First Amendment rights.”

TBI Director David Rausch seemed to believe that Sergeant Baker’s family members had rights which must be vindicated by local law enforcement and which apparently override the First Amendment.

Yes, the world does, indeed, need a little love. And yet, these are all what you might call “bad facts.” On top of which, Garton, who is described in the complaint as “transient,” was unable to make the $75,000 bail and spent twelve days in jail before the duty judge dismissed the charges.

In April of 2021, Garton filed a civil rights suit in the Middle District of Tennessee alleging false arrest, First Amendment retaliation, and malicious prosecution. He was represented by Horwitz Law, PLLC attorneys Daniel A. Horwitz, Lindsay Smith, and Melissa Dix, and Donati Law, PLLC attorneys Brice Timmons and Craig Edgington.

The case settled yesterday with the State of Tennessee agreeing to pay Garton $125,000 to go away and not make them admit in court how little they understand about long settled principles of free speech law.

“First Amendment retaliation is illegal, and law enforcement officials who arrest people for offending them will pay heavy consequences,” Horwitz said in a press release announcing the settlement. “Misbehaving government officials apologize with money, and Mr. Garton considers more than $10,000.00 per day that he was illegally incarcerated to be an acceptable apology.”

“The right to criticize our government is not merely fundamental, it is essential to democracy,” Timmons agreed. “We are proud to have protected that right for Tennesseans here.”

Garton v. Crouch [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.