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Legal experts look for fine line between free speech, threats in gorilla mask case

Nathan Baker • Oct 1, 2016 at 4:41 PM

An 18-year-old man in overalls and a gorilla mask, taunting Black Lives Matter protesters with bananas and noosed rope, was obviously offensive to many.

But some legal professionals are unconvinced he violated the civil rights statute under which he was charged.

In the confrontation Wednesday, barefoot East Tennessee State University freshman Tristan Rettke dangled bananas in front of students protesting the recent shootings of black men by police officers, seen as a symptom of institutionalized racism in American society.

After he was unmasked and led away by campus public safety officers, Rettke reportedly told police he bought the items for the costume the day before, hoping to provoke a reaction from the protesters.

Upon conferring with the district attorney's office, the arresting officer charged him with civil rights intimidation, a Class D felony under state law.

The statute defining the crime first affirms the right of every person, "regardless of race, color, ancestry, religion or national origin, to be secure and protected from fear, intimidation, harassment and bodily injury caused by the activities of groups and individuals."

It then describes the crime of civil intimidation in part as action that "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."

A later section makes it an additional crime to wear a mask with the intent to intimidate someone who is legally exercising their rights, a legal remnant of the fight against the Ku Klux Klan and the country's relatively recent struggles with race relations.

District Attorney General Tony Clark said Friday he believed the student was rightly charged, but said the case will involve several difficult questions to answer about free speech protections.

"I felt the ETSU officer was justified in charging that charge, there was enough probable cause," Clark said. "Now it's up to the court system, a jury or a judge will determine if he's guilty."

Clark said the charge was rare — he's never prosecuted a case of it in his 22 years of practice — and because of its legal implications, he expects the case may eventually reach a higher court.

In describing the legal issues surrounding the case, Clark zeroed in on the word "coerces" in the intimidation statute. Other sections of the criminal code define coercion as "exposing any person to hatred, contempt or ridicule," he said.

Rettke's attorney, Patrick Denton, who appeared with him in court Thursday, issued a statement saying his client had no intention of intimidating protesters.

"He respects the rights of those in the 'Black Lives Matter' movement to peacefully demonstrate in furtherance of their message in the spirit of the First Amendment," the statement said, after expressing Rettke's regret for Wednesday's events. "That being said, despite what many may feel was objectionable behavior, Mr. Rettke has the same Free Speech protections as those in the 'Black Lives Matter' movement. Above all, he did not intimidate or attempt to intimidate anyone during this incident. Accordingly, we look forward to defending his rights in a court of law."

Seasoned criminal defense attorney Jim Bowman, who is not representing any party in Rettke's case, called the intimidation statute "very interesting."

He said each side will likely focus on Rettke's intentions in court proceedings.

"Looking at the video of the incident, you can quickly conclude he intended to be an idiot," Bowman said. "But if he’s charged with that offense, the essential element will be what was his intent?

"To the extent he was expressing a counterpoint of view to the Black Lives Matter protesters, he has a right to do that, but he doesn’t have a right to intend to intimidate other people by his conduct."

Hedy Weinberg, executive director of the ACLU of Tennessee, the state branch of a national group dedicated to protecting Americans' constitutional rights, said Rettke appeared to not violate the law in the video posted online.

"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," Weinberg said in an emailed statement. "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."

She urged ETSU's administration to capitalize on the widely discussed incident to further discussions on campus and in the surrounding community regarding race.

"We encourage the university to continue countering this offensive act with open dialogue on the racist history of lynchings, the racial divides splitting our nation, and the importance of the right to free expression under state law and the First Amendment," she said. "The best answer to hateful speech is always more speech.”

After the Wednesday arrest, ETSU President Brian Noland denounced Rettke's actions as against the institution's moral philosophy.

Rettke was immediately suspended, pending the results of an internal review of his conduct. Rettke later withdrew from the university.

He is scheduled to appear again in Washington County General Sessions Court on Nov. 9.

If the state wishes to pursue the felony charge, his case will need to be heard and indicted by a grand jury before it can proceed in criminal court.

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