A Tennessee man is suing state and local law enforcement officials for violating his First Amendment rights after he was arrested and charged with harassment for posting a meme mocking a dead police officer.
Joshua Garton filed a federal civil rights lawsuit on Tuesday in the U.S. District Court for the Middle District of Tennessee alleging malicious prosecution, false arrest, and First Amendment retaliation for his January arrest by the Dickson Police Department.
The Dickson Police Department, following an investigation by the Tennessee Bureau of Investigation (TBI), arrested and charged Joshua Garton on January 22 with harassment after Garton posted a picture to Facebook that appeared to show two men urinating on the tombstone of Sgt. Daniel Baker, who was shot and killed on duty in 2018. Garton was held on a $76,000 bond.
Garton's attorney, Nashville civil rights lawyer Daniel Horwitz, said in a statement that the case against Garton was a "despicable and unconstitutional malicious prosecution."
"There are actual consequences for flagrantly violating the First Amendment," Horwitz said. "Unfortunately, taxpayers will have to pay a significant penalty because District Attorney Ray Crouch, the Tennessee Bureau of Investigation, the City of Dickson, and their agents and employees are constitutionally illiterate."
The agency launched the investigation at the request of 23rd District Attorney General Ray Crouch. "Agents subsequently visited Baker's gravesite this morning and determined the photograph was digitally manufactured," a TBI press release on Garton's arrest said.
The picture Garton posted was in fact a doctored photo of the cover of "Pissing on Your Grave," a single by The Rites, which originally depicted two people urinating on the tombstone of punk legend GG Allin.
The First Amendment firmly protects the right to post distasteful, offensive images and words. For example, in 2019 an Iowa man won a lawsuit after he was charged with third-degree harassment for saying online that a sheriff's deputy was a "stupid sum bitch" and "butthurt."
Nevertheless, Garton was interviewed by Dickson police officers, and according to an affidavit, "Garton was told that the image he posted did cause emotional distress to the family of Sgt. Baker as well as the law enforcement officers from Dickson County."
"He has a right to post. That doesn't mean there are no consequences," Dickson Police Captain Donald Arnold wrote in one of several text messages included as exhibits in Garton's lawsuit.
The arrest drew local and national attention, and condemnation from First Amendment experts, who said the post was clearly protected speech. According to other records released in Garton's lawsuit, it also led to a flood of angry callers at all of the agencies involved.
"The trolls will do what trolls do," TBI Director David Rausch wrote in another text. "It appears they and the lawyers forget that there are surviving family members who have rights as well."
A judge dismissed the case against Garton, finding no evidence of harassment.
"That is not good," Rausch texted after the judge's ruling.
Garton's lawsuit seeks $1 million in damages and names Crouch, officials from the TBI, the city of Dickson, and several Dickson police officers as defendants.
The TBI declined to comment, citing the pending litigation.