There is a concerning free speech case out of Tennessee where a retired police officer was arrested after posting anti-Charlie Kirk messages on the Internet. Larry Bushart, 61, of Lexington, Tennessee, was arrested for threatening a mass shooting at a school, but the cited messages do not support such a claim. Indeed, his comments appear to be protected political speech under governing Supreme Court precedent.
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.
The way the Facebook post was written (as presented in the news story) it seems like he’s trying say that the right should “get over” Charlie Kirk just like the community should “get over” the shooting. I’m having a hard time trying to process that as a threat to do -more- violence. I strongly suspect that there is more to the story. Maybe this guy had a history of saying overtly threatening things? If the above is all he wrote which is pertinent to the situation, though, it seems a ridiculous case.
He was pointing out that Trump has no empathy for murdered children.
Trump supporters apparently didn’t like that and decided to hurt him as much as they could under color of law.
Yes, it’s obvious that that’s exactly what he meant. But the local authorities took advantage of the fact that the school shooting on which Trump commented took place in Perry, Iowa, and this was Perry County, Tennessee, so they claimed that his intent in posting it was to threaten to shoot up a school in Perry County. It’s utterly ridiculous, but that was the story on which they arrested him.
Did you ever hear the term the process is the punishment? Now you know how the guy that spent 7 months in federal prison for reposting a meme on the day an election was to be held was treated.
I see no problem here.
where was JT when the J6 protesters were left to rot in jail w out even being charged?
You should send an email to him asking that question.
where was JT when the J6 protesters were left to rot in jail w out even being charged?
If you look at the archives here from that period, you will find that both he and his moderator Darren were primarily wringing their hands in anguish over the nature of Trump’s comments.
Professor Turley is primarily a theoretical ademic defender of rights – and the Fourth and Second amendments are not all that important as the First Amendment.
They weren’t left to rot in jail, but that is a nice falsehood to repeat.
They weren’t left to rot in jail, but that is a nice falsehood to repeat.
Lyin’ like your name’s Joe Biden – nice touch; but we’ve already seen that here hundreds of times before. The internet never forgets, while you hope normal Americans will forget just as quickly as you try to do.
Denial Of Due Process For Jan. 6 Protesters Indicted By Biden
https://nypost.com/2023/03/08/an-egregious-denial-of-due-process-for-jan-6-protesters/
The defendants have been kept in a separate unit with mold on the walls, brown water and generally unsanitary conditions, are subjected to 23 hours a day of solitary confinement, denied adequate food, medical treatment and religious services. Contrary to what apologists have been saying some defendants have been in these cells without trial for over three years, in violation of their constitutional right to a fair and speedy trial.
For communist Democrats living life without a fully developed prefrontal cortex, mold on the walls and brown drinking water generally fall under the description of “rot”.
Being consistent with your principles is important in a nation that has a functioning governmental system, where disputes can be resolved in good faith. In a nation like ours that is in a cold civil war between at least two groups of people with mutually incompatible fundamental ideas about how to run the nation — how to BE a nation, and thus a legislature that is so stalemated it is unable to do anything important, and thus wastes its time in political games while letting entrenched and unaccountable bureaucracies, courts and the executive run the nation based on the whims of powerful people, principle is a luxury we can’t afford. As Chile needed a Pinochet to save it from Allende, the US will need a period of authoritarianism to kill the leftist cancer.
Yep
It’s also illegal to yell fire in a movie theater. . . Just Saying
No it isn’t. If there is a real fire, you need to yell it to get people to get up and get out. This is a common misconception about this “rule”. Yelling it when there is no fire can lead to charges, but the argument itself without clarification is not correct.
A man was protesting US involvement and the draft in WW1 and was arrested. Long story (very) short, Oliver Wendall Holmes held the conviction by making an analogy that “you can’t yell fire in a movie theater”. It doesn’t really apply or make sense as an argument. The SC basically said the draft is necessary because every other country does it.
Yes, and the supreme court has since then utterly repudiated that decision. It is no longer good law and can never be cited as a precedent without getting you laughed at.
The Right must respect the Left’s free speech rights unless the message advocates violence.
Everyone must respect everyone’s free speech rights, even if the message DOES advocate violence. As I wrote above, Schenck has been utterly repudiated. It is not good law. The law of the land, for now, is that ALL “mere advocacy” is protected, even advocacy of violence, of genocide, of assassinating the president, or of overthrowing the government of the United States. So long as it doesn’t cross the lines into either incitement or true threats, it’s protected speech and all laws against it are invalid.
That means the law against seditious conspiracy is constitutional, but the law against sedition is not. (Look them up to see the difference.)
Not if the theater is on fire.
It’s also illegal to yell fire in a movie theater. . . Just Saying
Even when there’s a fire in that movie theater? Just sayin’…
This is what you get when you actually read decisions rather than just parroting what you read.
Try reading Brandenburg v. Ohio, 395 U.S. 444 (1969) that overturned that claim made by Holmes 50 years later.