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Last week, East Tennessee State University (ETSU) freshman Tristan Rettke by campus police and charged with a felony under Tennessee’s Civil Rights Intimidation statute after confronting peaceful Black Lives Matter protesters in the ETSU free speech area. Rettke’s act—dressing in a gorilla mask and attempting to hand bananas to the protesters in an attempt to “provoke” them—has to have been intended to be offensive. But, as the ACLU of Tennessee’s executive director , the First Amendment precludes the criminal charge against Rettke. It likewise would have precluded ETSU from formally disciplining Rettke had he not voluntarily from the institution.

A video taken by one of the protesters documents much of Rettke’s conduct and his subsequent arrest (just after 6:40 in the video) by two ETSU Public Safety officers:

View video

The recounts the officers’ observations after being summoned by an ETSU employee, their interview of Rettke, and—opaquely—their conversations with ETSU administrators. In short, Rettke dressed in overalls, a white T-shirt, and a gorilla mask. He carried a burlap sack emblazoned with a Confederate flag and marijuana leaf, and dragged with him a rope tied to a bunch of bananas, which he offered to protesters. He told police that he had heard about the Black Lives Matter protest and wanted to, in the words of the police, “provoke” the protesters.

Rettke Tennessee’s Civil Rights Intimidation statute, , subsection (b)(1)-(2), a felony. The relevant part of that statute provides:

A person commits the offense of intimidating others from exercising civil rights who:

(1)  Injures or threatens to injure or coerces another person with the intent to unlawfully intimidate another from the free exercise or enjoyment of any right or privilege secured by the constitution or laws of the state of Tennessee; [or]

(2)  Injures or threatens to injure or coerces another person with the intent to unlawfully intimidate another because that other exercised any right or privilege secured by the constitution or laws of the United States[.]

With the facts recounted in the videos and police report, the statute does not appear to apply to Rettke’s conduct, and to the extent that it might, the First Amendment precludes its enforcement.

The provocative nature of Rettke’s conduct stems from the fact that it is nearly universally considered to be offensive. 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. A prohibition on provoking a crowd to anger is, as the Supreme Court held in , unconstitutional because “[s]peech is often provocative and challenging.”

That brings us to the criminal charge under which Rettke was arrested.

To be guilty of , Rettke would need to have been doing two things:

1. Engaging in an action: injuring, threatening to injure, or coercing another person; and
2. Engaging in that action with the intent to intimidate others from engaging in a right or privilege.

With regard to the second element—the intent to intimidate—the statute may be susceptible to a First Amendment challenge. Police officers characterized Rettke’s statement to them as evidencing an intent to “provoke” peaceful protesters. Yet seeking to provoke others is generally , and similar prohibitions on “intimidation” have been struck down on First Amendment grounds as vague and overbroad. In , for example, a federal court struck down a law prohibiting disturbance of the peace “for the purpose of intimidating or terrorizing [...] any citizen [...] to do or not to do any lawful thing[.]” This statute was used during the civil rights era, both in that case and , to suppress black protesters peacefully protesting in Memphis. (A second federal court after 17 students protesting at the University of Tennessee, Knoxville, were charged under the same statute.)

Nevertheless, it’s the first element that is most difficult to square with the First Amendment. There’s no indication that Rettke physically injured anyone, nor is there any indication that he vocalized any “true threats,” which are unprotected by the First Amendment. That leaves the question of whether Rettke engaged in any conduct “coercing” another person from engaging in a right—the portion of the statute the prosecutor is .

But what does “coercing” mean? The statute itself doesn’t say, but another Tennessee statute the definition:

Coercion” means a threat, however communicated, to:
         (A)  Commit any offense;
         (B)  Wrongfully accuse any person of any offense;
         (C)  Expose any person to hatred, contempt or ridicule;
         (D)  Harm the credit or business repute of any person; or
         (E)  Take or withhold action as a public servant or cause a public servant to take
or withhold action;

Again, neither the police report nor video of the incident recounts Rettke making a threat, and most (if not all) of the definitions of “threat” delineated above do not apply here. Moreover, in defining coercion to be a “threat, however communicated,” Tennessee’s statute is overbroad, reaching a variety of speech that would not constitute a “true threat” under the First Amendment. For example, the definition would make it unlawful “coercion” to tell a university administrator that if he did not change a policy, he would be ridiculed in the student newspaper for that policy.

This is not idle speculation. Tennessee’s definition of “coercion” tracks, word-for-word, the . That definition was in dismissing a charge against then-Governor Rick Perry. The that the definition of “coercion” is “unconstitutionally overbroad in violation of the First Amendment.” (For more on the overbreadth of this definition of “coercion,” see this by University of California, Los Angeles Professor of Law Eugene Volokh.)

In any event, Rettke’s attempt to provoke the students failed spectacularly. Although Rettke’s conduct was intended to be provocative, the students largely ignored him. One student in particular that racism persists, and that Rettke was more likely to inspire new protesters than to deter those already peacefully protesting:

“I was going to let him stay as long as he wanted to,” [Jaylen] Grimes said, “because once white people see how the counterpart of their same culture acts, they can just reflect on that and see, ‘Oh, I’m not like that. Oh, I actually might want to help.’ And they might want to push against what his thoughts and what his beliefs are.”

The fact is that regardless of the subjective offensiveness of the viewpoints being expressed, neither the State of Tennessee nor ETSU can respond by enforcing a statute in a way that contravenes the First Amendment. It’s important to remember that the best response to speech you find offensive is more speech. And while the First Amendment equally protects the protestor and the provocateur, those engaged in the battle of ideas frequently find that attempts to offend tend to inspire more people to join the protest and galvanize the will of those already protesting, rather than deter them from speaking out.