Heresy Hunting

 This morning, I woke up thinking of "men as innocent as I am / Bent in a cold unjust walk between steel bars." (MacDiarmid.) Because right now—Tennessee is holding a man in jail literally for doing nothing more than what you or I might have done on a typical day—namely, criticizing the far-right provocateur Charlie Kirk on social media. 

The Intercept this weekend had the story. There is not much more to it than what I said above. The case does not have some further legal wrinkle that could explain how a state government can get away with violating the First Amendment rights of one of its citizens so flagrantly. A county sheriff in Tennessee really did just take it upon himself to arrest a man for posting negatively about Charlie Kirk online. And he has been in jail ever since. He remains there to this day. 

The Intercept report includes the details of what the man, Larry Bushart Jr., actually posted. Some of his reactions to the Kirk assassination in September may have been in poor taste. But there's no law in this country against poor taste. The First Amendment does not allow the government to impose its standards of taste or propriety or orthodoxy on the citizenry through coercion, punishment, and prison. Yet—that's exactly what at least one Tennessee county appears to have done. 

Not a single one of Bushart Jr.'s posts expressly calls for violence. At worst, they make light of Kirk's killing or call out a double standard in the right's reaction to mass shootings and gun violence. 

But it's worth observing: even if these posts had expressly endorsed or called for violence—that too is not against the law—unless the call for violence is so targeted and imminent that it constitutes incitement. The leading First Amendment precedent from the Supreme Court—Brandenburg—has already addressed precisely this type of scenario. You can't put someone in jail in this country just for using violent imagery or rhetoric in the course of political speech. 

(If you could—what then would we say of the current president—who alone among U.S. political leaders has led a movement that literally stormed the Capitol and tried to overthrow the government?)

I hope—I pray—that for this reason the case against Bushart Jr. will be rejected at some stage of the litigation, and he will be allowed to walk free. But that won't mean that his life hasn't been irretrievably damaged in the process. Even with all the weight of law and precedent on his side—he has still spent a month in jail—with bail for his release set at the obscene figure of $2 million. He has had his name and reputation dragged through the mud. 

In his collection the Spoon River Anthology, the poet Edgar Lee Masters describes some of the ways that small town America would enforce ideological conformity—even in the absence of overt laws criminalizing speech. In one of the poems, a mob wrecks a local press and tars and feathers its owner for daring to print something deemed heretical about the Haymarket affair in Chicago. In another poem, they bundle the village atheist into a mental hospital on charges of insanity—"There being no statute on blasphemy."

Tennessee seems to have adopted the approach—toward its own local heretics—of simply disregarding the First Amendment entirely and jailing people in the law's despite. To be sure—in their case—they have an over-broad Tennessee state statute purporting to criminalize some violent rhetoric. But it's implausible that what Bushart Jr. actually said falls within that statute—and if it does, then that statute is flatly inconsistent with the First Amendment, as the Supreme Court has interpreted it in modern times. 

It seems, then, that in spite of all laws and precedent to the contrary, we do indeed still persecute heretics in this country. Our self-appointed enforcers of ideological orthodoxy still "make [them] dance as they desire / With jail and gallows and hell-fire," to borrow a line from Housman. That's what Larry Bushart Jr.'s case proves. Our MAGA overlords decreed his words to be blasphemy, and they found a way to upend his life for it—without regard to the Constitution and its Bill of Rights, which would seem to decree that no government may impose its own definition of blasphemy on its citizens. 

They [...] bound him in an iron chain,

And burned him in a holy place

  Where many had been burned before; 

[...] Are such thing done on Albion's shore? as Blake once asked. 

Or America's, for that matter?