I have written about Charlie’s legacy fighting for free speech and how recent terminations and cancel campaigns of his critics dishonor that legacy.
Bushart is clearly one of the unhinged voices on the Internet who trolls and inflames others. At his arrest, even Bushart admitted that he is a bit of “an a**hole,” but insisted that he is not a criminal. He appears correct on both counts.
Bushart was charged Sept. 22 with making threats of mass violence at a school. However, he is not scheduled for a preliminary and bond hearing until December 4th. That delay is also troubling since his bond is set at an astronomical $2 million.
Bushart is a former police officer with the Huntingdon Police Department and was arrested after posting on a Perry County community Facebook group page. There was a planned vigil for Kirk in Linden, Tennessee, on Sept. 23.
Perry County Sheriff Nick Weems accused Bushart of posting what he called “hate memes” about Kirk’s death. Weems correctly noted that such memes are not illegal, but one appeared to cross the line in his view.
One meme showed Trump saying, “We have to get over it,” a direct quote from the president after a January 2024 school shooting in Perry County, Iowa , that left one dead and seven wounded.
The phrase “This seems relevant today” appears above the photo.
The Tennesseean‘s Angele Latham found that the meme was “posted numerous times across multiple social media platforms not connected to Bushart going back to 2024.”
However, Bushart was quickly visited by the police. Undeterred, he posted on the account: “Received a visit from Lexington PD regarding my posted memes.”
He was later arrested on a charge of Threats of Mass Violence on School Property and Activities. A conviction could bring as much as six years in prison.
The U.S. Supreme Court has previously protected hyperbole and rejected claims that political speech could fall under the true threat exception to the First Amendment. In Watts v. United States, a protester claimed that, if drafted, “the first man I want to get in my sights is [then-President Lyndon Johnson].” The court insisted that it was not a “true threat” but rather “a kind of very crude offensive method of stating a political opposition to the President.”
Watts established that a true threat had to be established according to three factors: (1) the context of the statement or statements in question; (2) the conditional nature of the supposed threat; and (3) the reaction of the recipient or listeners.
One recent case could be weighed in the Bushart matter.
In 2023, in Counterman v. Colorado, Billy Raymond Counterman was accused of stalking after he sent thousands of messages over two years to a female musician on Facebook. It included menacing references to her car and movements.
A state appellate court upheld the conviction on the basis that a person could “reasonably perceive” the messages as a threat.
The Supreme Court reversed and ruled that the threats did not have to meet an “objective” standard, but could be sustained by showing Counterman’s state of mind, a “subjective standard.” Under the standard laid out by Justice Kagan, the government must prove recklessness, but not necessarily intent: “The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
However, the Court expressed concern over the chilling effect of prosecutions in cases of vague threats: “The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs — all those may lead him to swallow words that are in fact not true threats.”
In prior cases, the Court also adopted a protective stance, requiring more than how words or actions were perceived. In Virginia v. Black (2003), the Court upheld the criminalization of cross burning when the act was intended as a threat: ‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”
Likewise, in 2015, the Supreme Court reversed a conviction in Elonis v. United States, involving a man who had posted rap lyrics on Facebook that appeared to threaten his ex-wife and others. The Court rejected jury instructions that required only that the jury find that he communicated what a reasonable person would regard as a threat.
The Tennessee case appears to fall substantially short of these prior cases.
Weems insisted that he posted the picture “to indicate or make the audience think it was referencing our Perry High School. This led teachers, parents, and students to conclude he was talking about a hypothetical shooting at our school. “(people) reached out in concern.”
However, that interpretation was not shared by others who commented on the posting, including critics. It was viewed by many as simply Bushart dismissing the killing of Kirk as something that we “should get over.”
The question is what clarity is necessary to sustain a criminal charge. Bushart has a protected right to rail against Kirk and, in his words, be “an a**hole.”
The case is likely to focus on the political speech element, including Weems’s own writings on Kirk. After the assassination, Weems mourned the loss and warned about the “evil” in our midst. “Evil could be your neighbor,” he wrote. “Evil could be standing right beside you in the grocery store. It could be your own family member and you never even know it.”
In a video, an officer explains to a confused Bushart what he is being charged with: “Threatening Mass Violence at a School.”
“At a school?” Bushart responded, and the officer added, “I ain’t got a clue. I just gotta do what I have to do.”
Bushart then said: “I’ve been in Facebook jail but now I’m really in it,.I may have been an a**hole but…”
Bushart would have to post a bail of at least $210,000 to get out of jail.
I do not see how this charge can be sustained on these facts. Given the free speech concerns, the long delay in getting before a judge is even more troubling.