Jailed in America for Free Speech

Andrew P. Napolitano says making up crimes where none exist and arresting without investigation — as was the case with Larry Bushart — are crimes in and of themselves.

By Andrew P. Napolitano

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 as they were fired or otherwise disciplined by employers or bureaucrats who concluded that anti-Kirk views could harm the employers’ businesses 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, or undermine the values or message of the institution with which they are affiliated.

Thus, reasonable fears of the loss of business or charitable donations due to the 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. While it reads “Congress shall make no law … abridging the freedom of speech,” today the amendment means that 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 harmful to their product or values. Private entities that receive federal funds — like universities — are subject to the Bill of Rights, and though some did punish speech critical of Kirk’s legacy or indifferent to his demise, those punishments were all unlawful. But none of this punishment-for-speech mania can rise to a criminal level. Until now.

Looking for Crime in the Wrong Places

For weeks, a retired 24-year veteran police and corrections officer whose sole offensive behavior was to quote President Donald Trump and have the quote appear to reflect Trump’s sentiment about the public aftermath of the Kirk murder, sat in a jail in Perry County, Tennessee.

[On Wednesday, news broke that charges against him were dropped and he was released.] 

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, then-presidential candidate 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. Bushart began to criticize those who mourned Kirk’s death and praised his legacy. 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 and forceful and sardonic.

Needless to say, Bushart’s postings drew angry responses. To one of these responses, Bushart replied and quoted Trump saying we have to get over it. The reference was to the killings at Perry High School in Perry, Iowa, in 2024. But the sheriff of Perry County, Tennessee — where Bushart and his wife reside — concluded that somehow Bushart’s posting of 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 Trump’s one-liner 18 months prior and 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 Bushart arrested and a local judge imposed a $2 million bail. When Bushart’s lawyers asked for a bail reduction to a reasonable amount, since the Eighth Amendment prohibits excessive bail, and Bushart lives on his police pension, the judge postponed Bushart’s bail hearing until December, even though a bail hearing can effectively be completed in 15 minutes. 

Prior to Bushart’s arrest, the sheriff who charged him conducted no investigation about threats to the local high school, nor did he warn any school officials. Moreover, he didn’t bother to interrogate Bushart or his wife or make any meaningful effort to ascertain if Bushart had the intention, will or present apparent ability to shoot up the local high school. The threat to the high school existed only in the sheriff’s mind.

Free Speech Basics

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.

But there is no ambiguity here; and there was no threat. I don’t know and never heard of Bushart or this sheriff. But Bushart has the right to think as he wishes and to 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 public norms when it comes to 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 exist, targeting an unpopular irritant and arresting without investigation are acts of authoritarianism and suppression of freedoms and are crimes in and of themselves. And 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 an eye opener. Even in small-town America, governments trample freedom.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here. 

Published by permission of the author.

COPYRIGHT 2024 ANDREW P. NAPOLITANO 

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