The media depict the Black Lives Matter movement as “largely peaceful,” and unquestionably protected by the First Amendment. They do so despite the intimidating nature of many BLM rallies, which have included death chants, vandalism, arson, burned out cars, rocks and bottles thrown at cops, and the blocking of highways. For example, a day after the killing of a police officer, Black Lives Matter protesters in Minnesota chanted “Pigs in a blanket, Fry ’em like bacon.” Pigs in a blanket is a reference to police in body bags. That very phrase was used by Ismaaiyl Brinsley before he shot and killed two NYPD officers.
But when someone who dislikes BLM does something far less menacing, and gets arrested for expressive activities, the media don’t even mention the First Amendment. A classic example is Susan Svrluga’s Washington Post story reporting on the arrest of an East Tennessee State University student for wearing a gorilla costume and handing out bananas to BLM activists. It reports on the arrest without even flagging the First Amendment issue:
An East Tennessee State University student was arrested Wednesday after going to a Black Lives Matter protest on campus wearing a gorilla mask and handing out bananas.
Tristan Rettke, an 18-year-old freshman, wore overalls and a gorilla mask and, holding a burlap sack with a Confederate flag and a marijuana leaf on it, offered bananas to students who were protesting, according to the ETSU police department report. He was arrested and charged with civil rights intimidation.
Unless Rettke did something much more physically intimidating than this news report suggests, his offensive antics were protected by the First Amendment. While his antics were no doubt provocative, courts have ruled that the First Amendment protects racially provocative behavior, such as a racist, sexist “ugly woman” skit by a college fraternity, which a federal appeals court ruled could not be punished in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993). Similarly, in Terminiello v. Chicago, 337 U.S. 1 (1949), the Supreme Court overturned the conviction of a racist, anti-semitic priest, who was convicted after causing unrest by giving a speech in which he criticized various racial groups and made a number of inflammatory comments. The Supreme Court held that a “breach of the peace” ordinance ” that banned speech which “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance” was unconstitutional because it prohibited much protected speech.
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As Hans Bader notes:
If burning the American flag is protected symbolic expression (as the Supreme Court ruled in Texas v. Johnson (1989)), then handing out bananas to BLM activists is also. The government can’t ban insulting speech as “civil rights intimidation.” Being offended doesn’t mean you were threatened, much less constitute a “true threat” the government can criminally prosecute.
There is no “civil rights” exception to the First Amendment. The Supreme Court invalidated a ban on race-based fighting words in R.A.V. v. St. Paul (1992). The majority viewed it as viewpoint discriminatory, and the concurring justices voted to strike it down as overbroad. The Supreme Court also ruled that New Jersey’s Law Against Discrimination did not override the Boy Scouts’ freedom of expressive association (in Boy Scouts v. Dale (2000)), and that the Massachusetts Civil Rights Act did not override the free speech rights of the Saint Patrick’s Day Parade organizers (in Hurley v. Irish Gay Lesbian and Bisexual Group of Boston (1995)).
Yes, this antediluvian moron was trying to provoke the BLM protesters. But speech that provokes is protected speech under Supreme Court decisions like Terminiello v. Chicago (1949), which upheld the free speech rights of an anti-semitic demagogue.
Calling Rettke’s speech “civil rights intimidation” does not make the First Amendment issue go away. The Ninth Circuit ruled that the Fair Housing Act could not be used to punish speech by opponents of a housing project as civil-rights intimidation, even when the speech delayed the creation of housing needed by a minority group, in White v. Lee, 227 F.3d 1224, 1229 (9th Cir. 2000). It ruled that federal officials wrongly investigated their speech under a provision of the Fair Housing Act that makes it unlawful “to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of … any right granted or protected by” that Act.
Matters are complicated because Rettke was wearing a mask, and a number of courts have upheld viewpoint-neutral, content-neutral anti-mask laws against constitutional challenges. But here, it is impossible to imagine a pro-BLM protester being prosecuted for similarly wearing a mask, even in a provocative manner, so the specter of viewpoint discrimination is present. Government officials cannot enforce the law in a viewpoint-discriminatory matter. For example, the Supreme Court has ruled that even if fighting words are unprotected, a municipality can’t ban racist fighting words, but not other fighting words, because that constitutes viewpoint discrimination (see R.A.V. v. St. Paul, 505 U.S. 377 (1992)). Similarly, a federal appeals court ruled that although the First Amendment does not require the police to protect protesters against private violence, they cannot selectively allow attacks on certain protesters based on their viewpoint (in that case, people burning the American flag), while protecting other protesters. (See Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993)). Likewise, a school district was held to violate the First Amendment when it banned T-shirts that were sexist, but not other offensive T-shirts. (See Pyle v. South Hadley School Committee, 861 F. Supp. 157, 170–74 (D. Mass. 1994)).
More importantly, given that Rettke was heavily outnumbered by the protesters, it is hard to argue that they were in any way intimidated (as opposed to offended and outraged) by his antics.
UPDATE:
The charges against Tristan Rettke appear to be baseless, since his antics were designed to offend the BLM activists, not “threaten” or physically “injure” them. He was charged under Tenn. Code Ann. § 39-17-309. It prohibits civil rights intimidation and provides, in relevant part:
(b) A person commits the offense of intimidating others from exercising civil rights who:
(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 or the constitution or laws of the state of Tennessee;
…
(c) It is an offense for a person to wear a mask or disguise with the intent to violate subsection (b).
