A Morally Reprehensible Act Is Made Worse By A Legally Inexcusable Arrest

The only thing worse than Joshua Garton’s fake photograph desecrating the grave of a dead police officer is the decision to arrest him for it. 

Joshua Andrew Garton did a morally reprehensible and utterly vile thing. He posted a fake photograph of people urinating on the grave of a dead police officer. The reason Garton did something this despicable is unclear. But when a local reporter reached out to those who know him, the response was that Garton suffers from mental health problems and was in serious need of treatment. In the United States though, citizens with suspected mental illnesses are far more likely to be arrested and thrown in jail than given medical treatment — mostly, according to the National Alliance on Mental Illness as a result of nonviolent acts. Which brings us to what I consider to be the worst part of this story, which is that the police decided to arrest Garton for posting the fake photograph.

What makes the arrest so bad is that Garton’s post clearly falls within the type of symbolic speech long recognized as being protected by the First Amendment from government retribution or punishment. It is also equally clear that Garton’s speech does not fall within any other of the “well-defined and narrowly limited classes of speech” that have no recognized First Amendment protection such as obscenity, defamation, fraud, true threats, incitement, or speech integral to criminal conduct. But wait, some might ask, is it not fair to categorize Garton’s fake picture of two people urinating on a dead police officer’s grave as rather obviously obscene? The answer is, although it is fair to describe Garton’s post as disgusting by moral standards of decency, the legal definition of obscenity is very specific, and this post clearly falls far short of meeting that legal definition.

In Miller v. California, the Supreme Court articulated the basic elements for obscenity which test:

(1) whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Keep in mind that in Miller, the outcome of the case was that a man who had been sending unsolicited pornographic magazines had his conviction overturned. In other words, the obscenity standard is very narrow and the Supreme Court has rejected every attempt to expand it. But most importantly, nothing in Garton’s post — which did not depict any sexual conduct or even sexual organs — could be reasonably placed within the category of the legally obscene or, for that matter, any other recognized free speech exceptions which are just as narrow or even narrower. Yet, Garton was arrested for his clearly protected speech anyway.

In point of fact, Garton was charged under Tennessee’s criminal statute of harassment that, in part, criminalizes communications made “[w]ith the malicious intent to frighten, intimidate or cause emotional distress.” The problem is, such state laws must nevertheless conform with First Amendment guarantees and again, it is absurdly obvious to anyone competent or at least dedicated to following the Constitution, that Garton’s post was protected speech.

Absent any legitimate legal reason, the obvious explanation for what happened is that the police were morally angry and offended and decided to arrest Garton for disrespecting one of their own. The Constitution be damned. And it is precisely this decision by agents of the state to abandon the Constitution that makes the arrest the worst part of all of this. Put simply, Garton did not break the law, but the police did. Here is where I also tell you that living in a “free society” means having to constantly be exposed to speech that is shocking, disgusting, and dare I say offensive. This means having to accept that police officers who took actual real photos mocking the death of someone killed by police should also be free from arrest. No matter how many are upset by it or might want it to be otherwise.

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What also makes the arrest undeniably worse is that even when Garton inevitably has his arrest dropped, and eventually sues (which he also will), it will be the only truly innocent people in all of this — the taxpayers — who will ultimately be on the hook of accountability. The individuals who are responsible for making this blatantly unconstitutional arrest will frustratingly be shielded from accountability due to the judicially made up doctrine of qualified immunity combined with indemnification. It is this shield from accountability that no doubt explains the brazen unlawful arrest itself. I mean, if you can never be held accountable for violating constitutional rights, why would you care about such rights when what you really want is to send a message to the lowly public about who gets to disrespect who?

When Garton does get the civil award he deserves, however, one can only hope he will use it to get the mental health treatment those around him feel he needs. It is probably too much to hope though that progressives will see this case as a caution against the expansion of speech restrictions, or that conservatives will see it as highlighting the desperate need to hold cops who violate constitutional rights accountable. So please excuse me while I go rip my hair out.


Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

 

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