Jailed for free speech? Yes, and it's chilling
By: Andrew P. Napolitano
Gust columnist
..... In the aftermath of the killing 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 when they were fired or otherwise disciplined by employers or bureaucrats who concluded that anti-Kirk views could harm the employer's businesses or were inconsistent with institutional values.
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All disciples 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 r 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. Although it says the "Congress shall make no law ... abridging the freedom of speech," today [10/30/2025] the amendment means that no government may evaluate the content of speech and punish what it doesn't want to hear.
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So, essentially, private entities that are not subject to the Bill or Rights may punish speech harmful to their product or values. Private entities that receive federal funds - such as universities - are subject to the Bill of Rights, and although some did punish speech critical of Kirk's legacy or indifferent to his demise, those punishments were all unlawful. But none of the punishment-for-speech mania can rise to a criminal level. until now.
Who is Larry Bushart?
..... In a jail in Perry County, Tennessee, sat a retired 24-eyar veteran police and correction 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 killing.
..... 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 position, stated publicly, "we have to get over it."
..... Fast-forward to Kirk's public killing. Larry Bushart, though a career cop, was an ardent opponent of his won understanding of Kirk's views and his youth movement. He began to criticize those who mourned Kirk's death and praised his legacy.
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Bushart posted more tan 100poeple 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 killing 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 earlier 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 lawyer asked for a bail reduction to a reasonable amount, since the Eighth amendment prohibits excessive bail, and Bushart lives on his police pension, the jugged postponed Bushart's bail hearing until December. [2025] A bail hearing can effectively be completed in 15 minutes. why should Bushart sit in jail for a non-crime until judge clears her calendar?
..... Before 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 whether Bushart had the intentions, will or ability to shoot up local high school. The threat to the high school exists only in the sheriff's mind.
The basics of free speech
..... What's going on?
..... 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.
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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 maybe.
..... Yet there are no pubic 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 exists, 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 in unforgivable.
..... This sordid arrest and excessive bail are an eye-opener. Even in small-town America, government trample freedom.
..... Late last week [10/30/2025] a courageous prosecutor asked the court to dismiss the charges against Bushart, and it did so. surely a happy outcome and the right thing to do, but this should never have happened in America.
..... Andrew P. Naplitano, a former New Jersey Superior Court judge, has published none books on the U.S. constitution. to learn more, visit JudgeNap.com