The trial of a young man accused of violating the civil rights of African American students three years ago at East Tennessee State University got underway on Monday.
Jurors listened to opening remarks from attorneys in a case that will have them decide whether confrontational actions by a lone counter-protester at a campus Black Lives Matter demonstration in 2016 crossed a constitutional line from protected free speech into the realm of unlawful harassment.
Prosecutors in Washington County say former ETSU student Tristan Rettke sought to intimidate his schoolmates when he showed up at a designated campus free-speech plaza in September 2106 wearing a gorilla mask and handing out bananas in the midst of a Black Lives Matter demonstration. Rettke, an 18-year-old first-semester freshmen at the time, was barefooted and wearing overalls during the incident, in which he also flaunted a burlap sack depicting a Confederate flag and cannabis leaf as well as a sign reading “Lives Matter.”
In addition, he tied bananas to a strand of rope and dangled them in front of the BLM protesters. Witnesses for the prosecution claim Rettke’s purpose was to insinuate a lynching threat, although the defense denies that.
Led by Assistant District Attorney General Erin McArdle, the state claims Rettke’s behavior constituted felony-level harassment and bullying. Rettke was attempting to coerce the protestors into refraining from exercising their constitutional rights to freedom of speech, McArdle said.
Rettke, who withdrew from the university soon after the incident, is charged with two counts of civil rights intimidation, as well as two counts of disorderly conduct and one count of disrupting a meeting.
McArdle said “obvious racial overtones” permeate the case, especially considering the “history of oppression” blacks have encountered in America. She suggested Rettke’s actions with the rope, which he’d tied into “some kind of noose-looking thing,” were comparable to one person making a throat-slitting gesture toward another, or someone presenting a Jew with an image of a swastika. McArdle suggested that, under certain circumstances, reasonable people might conclude such communications “could be intimidating.”
Rettke’s attorney, Patrick Denton of Johnson City, argues that his client’s actions — even though offensive, confrontational and admittedly ill-conceived — were nevertheless constitutionally protected to the same degree as the right of the BLM demonstrators to publicly present their message.
Rettke’s conduct should be thought of as an example of heckling or a counter protest, he said.
Denton compared Rettke’s actions to publicly burning an American flag, or when religious zealots protest at military funerals. Both may be deeply offensive to many, but both are nonetheless protected expressions of free speech, he said.
“We don’t need the First Amendment to protect speech that is popular,” said Denton.
He added, “It is not a crime to make people angry.”
Denton also noted that, considering the controversial nature of the Black Lives Matter movement, the protesting students “should have considered the possibility of competing or even demeaning” responses to their demonstration.
He also called into question the sincerity of prosecution witnesses who claim they were legitimately intimidated by Rettke’s behavior, pointing out that Rettke was outnumbered significantly by BLM protesters and sympathetic bystanders at the scene.
A lot of Monday was spent with attorneys for both sides, as well as Criminal Court Judge Lisa Rice, quizzing prospective jurors about their beliefs on the nature and breadth of freedom of speech in America. Also discussed was prospective jurors’ willingness and ability to set aside preconceived notions they may have drawn about the case, which has garnered significant local media attention.
The case is somewhat unusual in that the jury is being asked to weigh and consider complex and difficult free-speech matters typically left to judges, appellate justices and legal scholars.
Judge Rice acknowledged that free-speech cases can be complicated. “There are entire law school classes” dedicated to analyzing and examining the nuances of such difficult constitutional matters, she said.
She noted that many First Amendment issues “have been the subject of litigation all the way through the courts to the United States Supreme Court.” However, Rice promised to give the jury precise instructions as to how they should weigh the evidence against the specifics of law.
“There is some legal analysis that is required by you as jurors.” said Rice. “But you will be given everything that you are needed to apply the law to the evidence of this case.”
Another curious aspect of the case is that the key piece of evidence — a 9-minute video shot by a former ETSU student named Thomas Grant Madison — is claimed by both the prosecution and the defense to prove their respective claims in the case.
Jurors were in fact shown the video twice Monday afternoon — once during the opening argument by Rettke’s lawyer, and then again a short while later after Madison was called as the prosecution’s first witness. During each screening, the lawyers allowed the video to play without interruption or commentary.
Both sides concur that the video provides an accurate reflection of the events and circumstances of what happened that day in the designated campus free-speech zone outside ETSU’s university library.
Denton told jurors that the video clearly demonstrates that the black students in the vicinity of the BLM protest were in no way intimidated by Rettke’s actions. They may have been angry or outraged — or perhaps even to some degree amused, judging by their laughter recorded in the video — but they were not sincerely frightened, he said.
Madison testified that he was made “very angry” by Rettke’s “antics,” and that his initial reaction was to punch Rettke when the latter offered him a banana.
Madison testified that, in his mind, Rettke’s use of a the rope “was probably the worst part about it.”
“The gorilla thing is silly, the (Confederate flag emblazoned sack) is silly, but the rope was the most threatening thing towards me,” Madison said. He added that when Rettke tied up the bananas and dangled them before the protesters, the impression was that it “signified hanging.”
Madison can be heard laughing loudly throughout the video, and at one point proclaimed, “This is hilarious.” However, he testified after the video was played Monday that Rettke’s behavior was so offensive it was the kind of situation when one has to “laugh to keep from crying” — that feigned amusement was basically a defensive attempt to “make light of the situation.”
“The laughter that you here in the video is not laughing at Tristan, it is laughing to hold something darker inside.,” he said.
More prosecution witnesses will take the stand Tuesday.