Plenty more simian imbecility to go around this time too

A three-year running free-speech fiasco is approaching an apex in Washington County, and it befittingly coincides with the 94th anniversary of the legendary Tennessee Scopes Monkey Trial of July 1925.

A former East Tennessee State University student is scheduled July 15 to begin standing trial before a jury in Jonesborough on charges he violated fellow students’ civil rights by donning a gorilla mask and handing out bananas to Black Lives Matter protesters in the school’s free-speech zone.

In September 2016, an 18-year-old first-semester freshman named Tristan Rettke, who is white, was arrested and charged with a seldom used Tennessee statute designed to punish people who attempt to “unlawfully intimidate” others from exercising their constitutional rights

Subsequently released from custody on $10,000 bond, Rettke withdrew from the university shortly thereafter.

During the course of his interactions with the BLM demonstrators in an ETSU campus plaza area outside the university library, the ape-aping Rettke pranced about barefooted in a pair of overalls, dangling bananas from a length of rope, which some protesters said they believed symbolized a noose. Rettke also at times flourished a burlap bag emblazoned with a Confederate flag and a cannabis leaf — and at one point displayed a piece of paper bearing the handwritten words, “Lives Matter.”

Rettke at another point said to the protestors, “I identify as a gorilla.” When asked the purpose of his actions, Rettke said, “I’m out here to support you guys.”

Prior to making contact with Rettke, one of the white ETSU campus police officers observing the scene commented, “He can’t be doing that bullshit.” Later, Rettke was led away by police — whereupon he was unmasked to the hoots, jeers and intimations of potential future reprisals by BLM protestors.

Six months later, a grand jury indicted Rettke on the civil rights charges, as well as two counts of disorderly conduct and disrupting a meeting or procession.

Prosecutors for Tennessee’s First Judicial District claim in their court filings that when asked by police if his intent was to equate black students to subhuman primates, Rettke reportedly stated, “I knew it would invoke that thought process,” and that he “knew they were getting mad.”

The district attorney general’s office argues that Rettke’s behavior during the affair “clearly falls into the areas of expression that are not afforded protection by the First Amendment, specifically, the ‘fighting words’ exception or the ‘incitement to violence’ exception.”

Free Speech Zone Coverage

As luck and justice would have it, much of the ruckus was captured on video, and can be viewed here.

The 9-minute video, shot by ETSU student Thomas Grant Madison, gives a reasonably thorough indication of what happened that day in a designated campus free-speech zone, where students are permitted to gather and express opinions after first obtaining authorization from school administrators.

Spoiler alert: The only person in any apparent imminent danger throughout the video was Rettke himself. Indeed, praise was later conferred upon the black students for demonstrating forbearance — namely, for not kicking Rettke’s monkey ass all over the free-speech zone.

Recourse to violence was in fact discussed among the BLM protestors, but it was expressly eschewed. “I’ma whup his muhfuckin’ ass,” and “I really just want to kill you,” were audible comments from the BLM protesters, followed by exhortations to maintain composure from other students, who reckoned that triggering a physical altercation was precisely Rettke’s objective.

Rettke’s comportment that day went “against the values of our university where people come first and all are treated with dignity and respect,” ETSU President Brian Noland said in a statement later. “We are exceptionally proud of the students who were peacefully participating in the event and the manner in which they exercised restraint, thoughtfulness and strength in the face of inappropriate and offensive behavior.”

All the same, First Amendment advocates and legal specialists who’ve examined the case are left with the impression that the prosecutors in East Tennessee, as well as university administrators, are apparently unschooled in developments involving American free-speech jurisprudence over the past hundred years.

Hung Jury or Lynch Mob?

Rettke’s lawyer, Patrick Denton, maintains First Amendment case law is decidedly on his client’s side — although whether a Tennessee jury will agree remains to be seen.

Jury nullification may also come into play. That’s what happens when one or more members of the panel refuse on moral or ethical grounds to convict, despite sufficient evidence that the defendant is technically guilty of the violation charged — particularly when the law or charges at issue are perceived as constitutionally suspect or lacking righteous legitimacy. 

To Denton, a criminal defense attorney typically more at home arguing Fourth and Fifth Amendment issues than the intricacies of the First, one of the most vexing aspects of the case is that the events occurred in what’s purportedly a free-speech zone. From his own personal point of view, this case has brought Denton around to the informed conclusion that free-speech zones are a noxious, constitution-affronting concept.

“There shouldn’t be such a thing as a free-speech zone,” Denton said. “You know what the free-speech zone should be? Everywhere. Every public place. If there has to be a free-speech zone, does that mean that constitutional rights are selectively protected based on where people are?”

Denton said he expects the judge to allow him satisfactory latitude to “educate the jury on the First Amendment framework as best that I can.” If a conviction nonetheless results, Denton said an appeal will certainly ensue.

The Foundation for Individual Rights in Education, which — like the Tennessee ACLU, has opposed Rettke’s prosecution from the outset — notes that the “fighting words exception” cited in the DA office’s court filing represents an antiquated, obsolete legal doctrine that’s been “so deeply contradicted by a number of later Supreme Court cases that it is considered essentially dead.”

“The provocative nature of Rettke’s conduct stems from the fact that it is nearly universally considered to be offensive,” wrote FIRE’s Adam Steinbaugh in wake of the incident. “Yet, the offensive nature of speech is not a basis for the state to punish the speaker, as the First Amendment protects offensive speech. In the same vein, laws that base their application on whether others are offended fail to provide adequate notice to speakers as to what conduct is or is not prohibited.”

Tennessee ACLU president Hedy Weinberg said Rettke’s taunting “through the use of such charged and painful racist symbols” was unequivocally repugnant.

Nevertheless, she believes Rettke actions constitute no crime.

“While the student in this instance clearly intended to mock and provoke people, from video of the incident he did not appear to be making a targeted threat or to be creating a real fear of bodily harm,” said Weinberg. “Particularly in a public forum space where First Amendment protections are at their height, even this kind of contemptible racist speech is protected by the First Amendment.”

1st Amdt: An Open Invitation to Disputes

One case precedent that seems naturally relevant here dates back eight decades, when SCOTUS asserted that public officials in America are constitutionally precluded from punishing people for provoking others to anger through the exercise of speech.

By its very nature, “a function of free speech under our system of government is to invite dispute,” declared Justice William O. Douglas, writing for the majority in the Supreme Court’s 1949 Terminiello v. City of Chicago opinion.

That ruling overturned a priest’s conviction for “breach of the peace” resulting from a speech he gave that sparked a riot by protestors angered at his fulminations against Jews and President Franklin  Roosevelt, who, it’s worth noting in our current age of nakedly partisan judicial outcome-engineering, was responsible for nominating Douglas to the court of last resort in the first place.

Douglas, widely regarded as one of America’s staunchest 20th Century civil libertarian jurists, wrote that freedom of speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

“Speech is often provocative and challenging,” he wrote.

And oftentimes expressions of controversial or contentious notions “may strike at prejudices and preconceptions and have profound unsettling effects,” Douglas wrote, adding that while perhaps not entirely absolute, the right to free speech in America is “nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”

“There is no room under our Constitution for a more restrictive view,” Douglas concluded. “For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.”

Given that the circumstances of the case Justice Douglas was writing about involved both the casting of collective ethnic aspersions and an actual resulting riot, it’s difficult to see how Rettke’s actions — which resulted in no violence, and were in fact laughed at by many — could be seen by a sober-minded Bill-of-Rights-supporting observer as not protected by the First Amendment and its relevant case law.

Protecting the Franchise

In fact, Rettke’s inconsiderate clowning arguably resulted, at least in the short run, in just the sort of “high purpose” that Justice Douglas said allowing free speech was designed to serve. It forced the other students to muster the integrity and wisdom to embrace a responsible and civilized course of action and refrain from lashing out in violence, even when provoked by an outrageously offensive exhibition of bigotry.

“It’s crazy that something negative brought so much positivity,” Madison, one of the students who video-recorded Rettke’s antics, said on a Facebook livestream later. “Tristan, if you are listening, I thank you for it. Because me and everybody who went through your despicable display — we’re better people because of it. We are stronger people because of it.”

The exalted and despised Baltimore humorist and quasi-misanthropic newspaper editor H.L. Mencken — whose daunting journalistic talents were put to pitiless literary effect during the Scopes Monkey Trial in Dayton nearly a century ago — wrote eloquent and relevant words about the nature of free speech that jurors in Jonesborough would do well to take under advisement.

As a lifelong chronicler of political fraud, public folly and societal stupidity, the Sage of Baltimore said he’d become “convinced that free speech is worth nothing unless it includes a full franchise to be foolish and even to be malicious.”

“The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels,” Mencken said. “For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”