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After the murder of conservative activist Charlie Kirk in September, many on the political right set out to punish anyone making light of the tragedy, or even simply being insufficiently upset. In one of the more brazen examples, a Tennessee man was arrested, accused of threatening a school shooting, and held on a $2 million bond, for posting a somewhat uncivil meme on Facebook.

The image was one of several Bushart posted, and it was far from the most offensive. Still, it certainly feels crass; as people mourned a brutal public murder, Bushart snidely used the occasion to make a partisan political point. But it’s certainly well within the bounds of average social media discourse, and you certainly wouldn’t expect it to bring the attention of the local police.

According to the Perry County Sheriff’s Office website, Bushart was arrested the following morning on a charge of Threats of Mass Violence on School Property and Activities—a class E felony punishable by between one and six years in prison and up to a $3,000 fine. Worse, Bushart’s bail is set at an astonishing $2 million.

Under a Tennessee law that went into effect July 1, anyone posting bond must put up at least 10 percent of the total amount, and bail bondsmen must charge a “premium fee” of at least five percent of the total bond amount. Even just to get out of jail ahead of trial, state law says Bushart would have to pay a bondsman at least $210,000.

The Perry County Circuit Court website indicates Bushart had a motion hearing scheduled for October 9, but when reached by phone Friday, a court clerk told Reason the hearing was “reset” for December 4.

Bushart posted the Trump meme “to indicate or make the audience think it was referencing our Perry High School,” Weems told The Tennesseean in a statement. “Investigators believe Bushart was fully aware of the fear his post would cause and intentionally sought to create hysteria within the community.” Weems also told local radio station WOPC the meme “eluded [sic] to a hypothetical shooting at a place called Perry High School.”

“Quote the President of the United States, go to jail,” Adam Steinbaugh, an attorney with the Foundation for Individual Rights and Expression, posted on X.

On social media, some have suggested the meme in question was part of a larger pattern indicating Bushart posed a threat. But in his statement to The Tennesseean, Weems specifically singled out the Trump meme as the offender, saying while the other posts were “hate memes,” they were “not against the law and would be recognized as free speech.”

Perhaps some teachers, parents, or students really did find Bushart’s post threatening—though since it was a reply on a Facebook page for local news, it’s not clear how many people even saw it. And even if people did see and interpret it as a threat of violence, that doesn’t mean it meets the standard for a “true threat,” in violation of the First Amendment.

“True threats are not protected speech but not everything is a true threat,” David Hudson, professor at Belmont University School of Law, tells Reason. “This seems to me to be heated rhetorical hyperbole, which is an incredibly important concept—or should be—in true threat-type cases.”

“Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution,” Justice William O. Douglas wrote in a concurring opinion.

Bushart’s arrest would be humorous if it weren’t so serious. He now faces a potential years-long prison sentence for reposting a Facebook meme that doesn’t come anywhere close to qualifying as an exception to the First Amendment. Even if the case gets thrown out, he has already spent two weeks in jail and is set to spend two more months until his first hearing.

The U.S. Supreme Court created the true threat exception to the First Amendment in the 1969 decision Watts v. United States. Even then, Hudson adds, it made the point of distinguishing between true threats and “crude political hyperbole”—in that case, a protester’s remark that if he were drafted into the Army, “the first man I want to get in my sights is” then-President Lyndon Johnson. The court agreed with the plaintiff that it was not a true threat but simply “a kind of very crude offensive method of stating a political opposition to the President.”