Joshua Andrew Garton
Special Agents from the Tennessee Bureau of Investigation (TBI) and Dickson Police Department on Friday arrested a man accused of posting a fake photograph on social media depicting two men urinating on the grave of a police officer who was tragically killed on duty in 2018. The arrest, and subsequent bond demanded for his release, outraged attorneys who were quick to point out that despite being horrifically insensitive, the doctored photo in question is undoubtedly protected under the First Amendment of the U.S. Constitution.
“This morning, District Attorney General Ray Crouch requested the TBI to investigate the origin of a troubling photograph, getting considerable attention on social media, that seemed to depict individuals desecrating the grave of a deceased local law enforcement officer,” the TBI tweeted Friday.
“Agents visited the gravesite and quickly determined the photograph is not authentic. The TBI’s work, however, continues and, to that end, the Bureau would encourage anyone with information about who may be responsible for manufacturing the image to call at 1-800-TBI-FIND.”
The bureau’s investigation led them to arrest Joshua Andrew Garton, who they charged with Harassment and held on $76,000 bond.
https://twitter.com/TBInvestigation/status/1352783530489745408?s=20
But as Tennessee attorney Daniel A. Horwitz, who specializes in First Amendment litigation noted, the specific conduct the TBI arrested Garton for is simply “not a crime.”
“The First Amendment clearly and unmistakably protects this man’s right to post an offensive photo about a police officer,” Horwitz told Law&Crime. “The only people who broke the law here were the police officers and TBI agents who participated in this flagrantly unconstitutional arrest.”
“This is the photo that our constitutionally illiterate law enforcement officers think is a crime to share,” Horwitz tweeted, attaching a screenshot of the picture that resulted in Garton’s arrest.
https://twitter.com/Scot_Blog/status/1352999256903344128?s=20
Additionally, under Tennessee law, harassing conduct requires communications that result in a person being “frightened, intimidated or emotionally distressed.”
Asked how a deceased person could be the subject of criminal harassment, Horwitz replied that the TBI and Dickinson Police Department likely “set out to arrest [Garton] for one thing, quickly realize they can’t, and make up something else in frustration.”
Tennessee-based criminal defense attorney Bryan Stephenson and First Amendment lawyer Adam Steinbaugh were also quick to point out that the TBI’s “investigation” and graveyard visit could have been avoided with a simple Google image search, which reveals that the photo was actually the cover art of a band’s 2009 single titled “Pissing on Your Grave.”
“He did a meme,” Horwitz said in summation, adding, “They arrested him for posting an anti-police meme.”
Law&Crime reached out to the TBI and District Attorney Ray Crouch’s office asking whom Garton is alleged to have harassed and how posting such an image can be criminal in light of Supreme Court precedent set in Miller v. California, New York v. Ferber, and Ashcroft v. Free Speech Coalition. The TBI said all questions regarding the charges should be directed to the District Attorney’s office. Crouch’s office has not responded to the inquiry at the time of publication.
[image via TBI]
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