OPINION:
In the aftermath of the murder of Charlie Kirk, many folks who dared to express views of him and his work outside the mainstream lost their jobs, professional standing and State Department visas. Many were fired or otherwise disciplined by employers or bureaucrats who concluded that anti-Kirk views could harm business or were inconsistent with institutional values.
All discipline based on speech needs to be scrutinized strictly. Yet even in states with strong public accommodations laws — laws that generally protect free speech in the workplace and in public places — at-will employees can generally be disciplined for expressive activities that their bosses reasonably fear may impair the product or services they were hired to produce or deliver. They may also be disciplined if their bosses believe their activities undermine the values or message of the institution with which they are affiliated.
Thus, reasonable fears of losing business or charitable donations because of anti-Kirk public sentiments may lawfully result in silencing or firing those employees.
All this is so because the First Amendment restrains only the government. Although it reads “Congress shall make no law … abridging the freedom of speech,” the amendment means no government may evaluate the content of speech and punish what it doesn’t want to hear.
So, essentially, private entities that are not subject to the Bill of Rights may punish speech that is harmful to their products or values. Private entities that receive federal funds, such as universities, are subject to the Bill of Rights. Although some did punish speech critical of Kirk’s legacy or were indifferent to his demise, those punishments were all unlawful. None of this punishment-for-speech mania could rise to a criminal level until now.
Now, in a jail in Perry County, Tennessee, sits a retired 24-year veteran police and corrections officer whose sole offensive behavior was to quote President Trump and have the quote appear to reflect Mr. Trump’s sentiment about the public aftermath of the Kirk murder.
Here is the backstory.
In January 2024, a deranged young man randomly shot students and adults at Perry High School in Perry, Iowa. The event was tragic and heartbreaking. After the usual public outrage demanded a crackdown on Second Amendment rights, presidential candidate Donald Trump, in an effort to substantiate his pro-gun positions, stated publicly, “We have to get over it.”
Fast-forward to Kirk’s public murder. Larry Bushart, though a career cop, was an ardent opponent of his own understanding of Kirk’s views and his youth movement. Mr. Bushart began to criticize those who mourned Kirk’s death and praised his legacy. Mr. Bushart posted more than 100 posts on Facebook critical of Kirk and derisive of those mourning his untimely death. Some of his language was direct, forceful and sardonic.
Needless to say, Mr. Bushart’s postings drew angry responses. To one of these responses, Mr. Bushart replied, quoting Mr. Trump, saying, “We have to get over it.” The reference was to the killings at Perry High School in Perry, Iowa, in 2024. Still, the sheriff of Perry County, Tennessee, where Mr. Bushart and his wife reside, concluded that somehow Mr. Bushart’s posting of Mr. Trump’s “get over it” language was a threat of a mass shooting at Perry County High School in Tennessee.
The sheriff’s connection between Mr. Trump’s one-liner 18 months earlier and Mr. Bushart’s posting it as a threat to kill students is, of course, absurd and reeks of an intolerably overzealous law enforcement professional looking for crime in the wrong places.
He ordered Mr. Bushart arrested, and a local judge imposed a $2 million bail. When Mr. Bushart’s attorneys requested a bail reduction to a reasonable amount, citing the Eighth Amendment’s prohibition on excessive bail and considering that Mr. Bushart lives on his police pension, the judge postponed Mr. Bushart’s bail hearing until December. A bail hearing can effectively be completed in 15 minutes. Why should Mr. Bushart sit in jail for a non-crime until a judge clears her calendar?
Before Mr. Bushart’s arrest, the sheriff who charged him did not investigate threats to the local high school, nor did he warn any school officials. Moreover, he didn’t bother to interrogate Mr. Bushart or his wife or make any meaningful effort to ascertain whether Mr. Bushart had the intention or will or present apparent ability to shoot up the local high school. The threat to the high school exists only in the sheriff’s mind.
What’s going on here?
Here are the free speech basics. The whole purpose of the First Amendment is to keep the government out of the business of evaluating the contents of speech. All public speech is presumed to be lawful. All innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to challenge or rebut it. Moreover, if speech is ambiguous — is it a threat or isn’t it? — and there is ANY rational lawful interpretation of it, the speech alone cannot form the basis of a criminal prosecution, as the lawful interpretation trumps the ambiguity.
However, there is no ambiguity here, and no threat was present. I don’t know and have never heard of Mr. Bushart or this sheriff. Mr. Bushart has the right to think as he wishes, say what he thinks and publish what he says, no matter how intemperate or indifferent or offensive, no matter how far from public norms it may be.
Yet there are no established public norms regarding speech. Free speech is the core of the American republic — even hateful speech, even misleading speech, even speech that makes sense only to the speaker. Punishing speech, making up crimes where none exists, targeting an unpopular irritant and arresting without investigation are acts of authoritarianism and suppression of freedoms and are crimes in and of themselves. Imposing a $2 million bail on a pensioner with no criminal record and who has not harmed a fly is unforgivable.
This sordid arrest and excessive bail are stark reminders: Even in small-town America, governments trample freedom.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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