The officers came to arrest Larry Bushart shortly before midnight on Sept. 21.
Mr. Bushart, a 61-year-old retired police officer living in Lexington, Tenn., had posted a meme on Facebook after the assassination of the conservative activist Charlie Kirk on Sept. 10. It was a picture of Donald Trump along with Mr. Trump’s comment in response to a school shooting at Perry High School in Iowa in 2024: “We have to get over it.” The meme was headed by the caption, “This seems relevant today.”
Mr. Bushart shared that meme in a Facebook thread promoting a vigil for Mr. Kirk in nearby Perry County. The Perry County Sheriff’s Office obtained a warrant for Mr. Bushart’s arrest, claiming that the post was a threat of “mass violence” at a school. The sheriff’s office did this even though the meme referred to a shooting that took place more than a year before at a school in Iowa. The only connection — if you can even call it a connection — was that the Iowa school also had “Perry” in its name.
Mr. Bushart’s bail was set at $2 million. Unable to pay, he spent 37 days in jail before prosecutors dropped the charge.
In my 25 years working as a lawyer on free-speech cases, I have seen a lot of overreach. I have never seen anything quite like this. With the help of a local attorney, my organization, the Foundation for Individual Rights and Expression, is preparing a federal civil-rights lawsuit against the Perry County sheriff and others, seeking damages and a ruling that what happened to Mr. Bushart violated the First Amendment.
This episode recalls the abuses that gave rise to modern First Amendment jurisprudence more than a century ago. The socialist leader Eugene V. Debs was convicted under the Espionage Act of 1917 for giving an antiwar speech and sentenced to 10 years in federal prison. Though the Supreme Court unanimously upheld his conviction, it later changed course, holding that the government may punish political advocacy only when it is intended and likely to produce imminent lawless action or when it amounts to a genuine threat.
Today, the rare Americans who spend time behind bars for online posts are typically involved in cases in which their words at least sound menacing: a New Jersey mother’s furious if ambiguous Facebook post about the judges in her child custody case; a Texas teenager’s dark, sarcastic comment, in the context of an online debate over a video game, that he would “shoot up a kindergarten” (to which he reportedly added “lol” and “j/k”).
However troubling those prosecutions were, officials could at least plausibly claim they feared violence. In Mr. Bushart’s case, there was no plausible cause for concern. When my organization asked Perry County Schools for any records relating to the meme, a school official said he had none.
Mr. Bushart’s case would be alarming even if it were the sole instance of institutional overreaction to a response to Mr. Kirk’s killing. But it is not unique. A recent review by Reuters of court records, local media reports and public statements found that more than 600 Americans have been fired, suspended, investigated or disciplined by employers for comments about the Kirk assassination. Mr. Bushart, too, lost his job — because he was in jail.
At my organization, we have tallied 80 attempts to punish academics over their remarks about Mr. Kirk since his killing, resulting so far in about 40 investigations or disciplinary actions and 18 terminations. By comparison, during all of 2020, amid the national reckoning over racial justice, we tallied 98 attempts to punish academics involving speech about race, resulting in over 55 investigations or disciplinary actions and 24 terminations. In other words, the Kirk crackdown is approaching, in just a few months, what that fraught year produced in its entirety.
The government has helped to normalize this repression. Following regulatory threats from the chairman of the Federal Communications Commission, ABC briefly suspended “Jimmy Kimmel Live!” after Mr. Kimmel discussed Mr. Kirk’s killing in a monologue. The State Department said it revoked visas held by foreigners who celebrated the assassination online. The Defense Department has reviewed service members’ social media posts about Mr. Kirk; at least a dozen service members have been suspended or relieved of duty because of their comments.
None of this diminishes the horror of Mr. Kirk’s killing. He was shot to death while speaking — apparently, for speaking — to students on a college campus. That violence sent a chilling message.
It’s the same message jailing Mr. Bushart sends: Some ideas are too dangerous to express, and those who give voice to them may lose their lives, their liberty or their livelihood.
The best way to honor Mr. Kirk is not to criminalize speech. It is to ensure that argument remains the alternative to violence. In a just society, people should not fear that they will be killed for their speech. And they should not fear that they will spend five minutes in jail — let alone five weeks — for sharing a nonthreatening meme.
Greg Lukianoff (@glukianoff) is the president and chief executive of the Foundation for Individual Rights and Expression and an author, with Nadine Strossen, of “The War on Words: 10 Arguments Against Free Speech — and Why They Fail.”
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