Utah professor explains legality of settlement granted to Tennessee man jailed for controversial meme

SALT LAKE CITY (ABC4) — A Tennessee man is about to be $835,000 richer, thanks to a lawsuit settlement from the state that ruled he is not at fault for a meme he posted about Charlie Kirk’s killing. A University of Utah law professor is weighing in on the legal precedent.

61-year-old retired police officer Larry Bushart of Tennessee was jailed for 37 days following a meme he posted about the assassination of conservative activist Charlie Kirk. After his lawsuit against the state was settled on Tuesday, he will be $835,000 richer.

Bushart’s post to Facebook read: “This seems relevant today…” Attached was a photo of President Trump with the words, “We have to get over it,” which he is quoted as saying in 2024 after a school shooting at Iowa’s Perry High School. Bushart reportedly refused to take down the post and was arrested later in September.

Critically, Perry County Sheriff Nick Weems said that most of Bushart’s memes were lawful free speech, but he had sent an officer to arrest the poster because residents reportedly felt alarmed that a local school was being threatened.

To better understand the precedent behind Bushart’s case, which has drawn national attention, ABC4.com spoke with Clifford Rosky, a law professor at the University of Utah. According to him, this area of First Amendment law is simple and well-known.

“The government can’t throw someone in jail, for example, because they don’t like the opinion that they expressed. They don’t like what they said. This case does appear to be that kind of case,” Rosky said.

He continued, “The settlement suggests that that’s how both parties ultimately saw it, that this man said things that were clearly offensive and maybe probably designed to offend, but that’s not a crime. And the Supreme Court has said many times that the free speech clause protects the speech that we hate as well as the speech that we love.”

Bushart’s acquittal means that a judge found that his post hadn’t crossed the threshold of what’s known as a true threat or criminal incitement, according to Rosky. He added that those exceptions to First Amendment protections are defined in the Constitution in a very narrow way.

“That’s the key, is intentionally causing fear. So obviously, there was some question about whether this man in Tennessee said anything that fell into one of those categories. And apparently, it looks like the answer was no,” Rosky said.

While rulings like this are common, Rosky said that it’s not normal for a government official to see speech they personally don’t like and attempt to censor it. What’s more, is that attempting to censor the speech by throwing someone in jail is extreme— but not unheard of.

Rosky acknowledged that tensions are high in the country for school shootings, and an assassination of a public figure to boot certainly didn’t help on September 10. Still, he said, there’s a big distinction between saying something the government doesn’t like and saying something that indicates danger to others.

“It’s not like it’s never happened before in our country, because when someone has power, it’s tempting to say, ‘Well, I think what you did is terrible, and so there must be some law that you broke,’” Rosky explained. “It sounds like there may have been, at some point, some argument made on behalf of the police department that one of his posts was like an implicit threat. It sounds like the police department ultimately abandoned that argument when they issued, you know, an $800,000 check.”

There is still reason to be optimistic, however. According to Rosky, challenges to free speech have occurred since the country’s founding, and the government has sought to interfere with citizens’ expression of ideas it disagrees with.

He explained, “We’ve been throwing people in jail and fining them and firing them from their jobs and all kinds of other things to try to control what they say, but the nice thing is that as long as it has been happening, our courts have protected our freedom of speech and reminded the government of its responsibilities under the Constitution.”