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Image of Men Urinating on Grave Protected by First Amendment

An investigation continued despite the fact that the photo in question was determined to have been a total fabrication. A close examination revealed that the fake photo of the men and the grave had been altered to appear to look real. The depiction, though deemed inappropriate and in poor taste, simply did not rise to the level of a criminal act. The officers, undeterred, chose to expand their case investigation by contributing additional manpower and resources in an effort to assure a suspect, an arrest, and a water-tight conviction. The TBI went as far as posting an ad encouraging tips from the public, and they established a hotline, which eventually led to the arrest of Joshua Garton who was indicted on a $76,000.00 bond for a contrived criminal act the department described as “Harassment.”

The act of “harassment” does not fit the suspect’s actions, which might be more appropriately described as posting an online meme. A meme that was in admittedly “bad taste” but a meme nevertheless. Although creating a meme is not a convictable offense, Tennessee investigators decided to double down by sending a team of agents to study the officer’s gravesite only to determine that the gravesite in the photo did not match the gravesite of the fallen officer.

Admitting that the posting was profoundly tasteless, Tennessee constitutional attorney Daniel A. Horwitz stated that the conduct of the arrested suspect is simply “not a crime.” The posting of the photo is clearly protected by the First Amendment. Furthermore, under Tennessee law, “harassment” implies conduct involving communication that results in a living person being “frightened, intimidated or emotionally distressed.” Horwitz suggested that, TBI, upon realizing they could not arrest the individual for posting a fake photo, proceeded to drum up the “harassment” charge.

First Amendment attorney Adam Steinbaugh and Tennessee defense attorney Bryan Stephenson pointed out that if the TBI carried out an investigation prior to the arrest, they would have discovered that the phony image could be easily found through a Google search. The original image of men urinating on a random grave actually came from the album cover art of a rock band whose single is titled: “Pissing On Your Grave.” Garton super-imposed the officer’s name and date of death on the headstone to express disdain for police.

It seems that no one in the State Attorney General’s office considered landmark U.S. Supreme Court decisions such as Miller v. California, New York v. Ferber, and Ashcroft v. Free Speech Coalition, each vindicating Garton’s right to post the meme in question. Despite such landmark case law, District Attorney Ray Crouch continued to pursue the case as though he had never heard of the First Amendment.

This incident presents yet another example of how elected and appointed officials and representatives of law enforcement often fail to practice blind justice once impassioned by an incident that may trigger their own personal bias. Americans should heed the warning that unfettered personal bias within our legal justice system will continue to erode a respect for the First Amendment. 

 

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