-
Click here to listen to this article - Share via
See more from the L.A. Times in Google Search. Set us as preferred
In the case of United States vs. James Brien Comey Jr., the U.S. president’s security is pitted against the bedrock right to free speech enjoyed by Americans.
Two federal charges have been lodged against former FBI Director Comey and are based on his Instagram post that depicted seashells spelling out “86 47,” which many people thought to be using “86” as the restaurant shorthand for getting rid of something and “47” as the number for Trump’s second presidency.
Comey’s post was interpreted by the U.S. Department of Justice as a threat to harm President Trump. The indictment alleges Comey violated two federal laws: one that makes it a crime to “knowingly and willfully” threaten the president of the United States and one that criminalizes “communication containing any threat to kidnap any person or any threat to injure the person of another.”
Comey’s argument against the charges is likely to be twofold: He lacked the requisite intent that the prosecutor needs to prove his case, and even if he had the intent required by the statute, his speech is protected by the 1st Amendment. U.S. District Judge Louise Flanagan set Oct. 21 as the Comey case trial date.
The charges against Comey exist in a legal gray area that includes the 1st Amendment and a series of court decisions over five decades that have gone back and forth over what dangers constitute speech that can be punished.
In Comey’s case, the act of speech itself may not be the focus, but rather whether the defendant had criminal intent when he posted the image. Comey has consistently maintained that he didn’t know “86 47” could imply violence against the president. He has stated he came across the shells that spelled out “86 47” while walking on a beach in North Carolina, took a picture and posted it on Instagram.
Comey later removed the image from Instagram and posted a statement that read, “I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message. I didn’t realize some folks associate those numbers with violence. It never occurred to me but I oppose violence of any kind so I took the post down.”
To convict Comey, the prosecutor must prove that he did, in fact, know when he posted it that “86 47” could have a violent meaning.
Comey’s career as a federal prosecutor and his tenure as the FBI director may work against him here. It’s more than plausible that Comey encountered the threatening version of the term “86” in his career. It’s also more than plausible that the term appears in documents, records and court filings that Comey has drafted and signed over his career, all of which could be used against him at trial.
But even if the Justice Department can prove Comey did, in fact, know the threatening nature of “86 47,” its case against him is not a slam dunk.
And that’s because of the 1st Amendment.
Comey is likely to argue that his Instagram post was protected speech and therefore could not legally be criminalized.
Criminal defendants can always argue that otherwise valid and constitutional laws are unconstitutional as applied to them and their particular case. Comey is likely to argue this in his defense, but it won’t be straightforward.
The 1st Amendment is not absolute. That’s where those five decades of case law come in.
In Chaplinsky vs. New Hampshire from 1942, Justice Frank Murphy wrote that it’s “well understood that the right to free speech is not absolute at all times and under all circumstances.”
In 1969, the U.S. Supreme Court held in Watts vs. United States that while “true threats” are not protected by the 1st Amendment, political hyperbole remains protected speech. The Supreme Court defines true threats as statements in which the speaker means to communicate a serious expression of intent to commit an act of unlawful violence against a particular individual or group of individuals, but the speaker need not actually intend to carry out the threat.
Watts vs. United States involved a threat against President Johnson during his term. In that case, Robert Watts expressed his strong opposition to the military draft at a public rally, saying, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” He was charged and convicted under one of the same statutes used in Comey’s case.
The Supreme Court reversed the conviction, ultimately agreeing with Watts, who had maintained that his statement was “a kind of very crude offensive method of stating a political opposition to the President.”
As the court explained, quoting an earlier decision on press freedom, “For we must interpret the language Congress chose ‘against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’”
Since Watts, countless defendants have faced similar charges for threatening the president. Many have been convicted.
In the 1970s, Eugene Hart was convicted of threatening the president after his brother reported Hart’s plan to assassinate President Nixon. An appellate court affirmed his conviction, concluding that Hart’s verbal threat coupled with his detailed assassination plan couldn’t have been “uttered in jest or in the nature of a hyperbole.”
In the 1980s, David Hoffman was convicted of threatening President Reagan when he mailed a letter to the White House stating, “Ronnie, Listen Chump! Resign or You’ll Get Your Brains Blown Out.” And in 1999, Donald Adams was convicted of threatening the president when he approached the White House gates telling Secret Service officers, “I want to kill the president.”
But in those cases and others, the defendants took concrete steps that demonstrated their sincerity and awareness of the threatening nature of their speech. In my estimation, both are absent in Comey’s case.
Wayne Unger is an associate professor of law at Quinnipiac University. This article was produced in collaboration with the Conversation.
Insights
L.A. Times Insights delivers AI-generated analysis on Voices content to offer all points of view. Insights does not appear on any news articles.
Viewpoint
Perspectives
The following AI-generated content is powered by Perplexity. The Los Angeles Times editorial staff does not create or edit the content.
Ideas expressed in the piece
The article frames United States vs. James Brien Comey Jr. as a collision between the government’s interest in protecting the president and the 1st Amendment’s core protection of political expression, emphasizing that the case rests entirely on Comey’s Instagram photo of seashells spelling out “86 47,” which prosecutors read as coded language for getting rid of the 47th president.[1][4]
It explains that Comey is charged under two federal statutes: 18 U.S.C. § 871, which criminalizes “knowingly and willfully” threatening the president, and 18 U.S.C. § 875(c), which punishes transmitting threats to injure another person in interstate commerce, noting that the Justice Department’s theory is that a reasonable observer would view the “86 47” post as a serious expression of intent to harm President Trump.[1]
The piece suggests Comey’s defense will be twofold: first, that he lacked the required intent because he did not know “86 47” could be understood as advocating violence, a claim he has repeated publicly while describing the post as a misunderstanding over a “cool shell formation” on a beach; and second, that even if he did understand the slang, the post is political speech shielded by the 1st Amendment.[4]
At the same time, the article notes that Comey’s long career as a federal prosecutor and FBI director may undermine his assertion of ignorance, because it is plausible he encountered “86” in a threatening sense in case files, law-enforcement documents, or criminal slang, and those records could be used by prosecutors to argue he knew the possible violent meaning.
Nevertheless, the article contends that even if the government establishes knowledge, the prosecution faces a serious constitutional obstacle because 1st Amendment doctrine has long drawn a line between punishable “true threats” and protected political hyperbole, citing cases such as Chaplinsky vs. New Hampshire and Watts vs. United States to show that free-speech rights are robust but not absolute.
The piece draws a close analogy to Watts, in which the Supreme Court overturned a conviction for a statement about putting President Johnson “in my sights,” characterizing it as crude political opposition rather than a true threat, and uses that precedent to argue that Comey’s ambiguous, symbolic post may similarly be viewed as protected commentary on a political figure rather than a serious intent to commit violence.
It contrasts Comey’s conduct with past presidential-threat prosecutions, such as those involving Eugene Hart, David Hoffman, and Donald Adams, where defendants paired violent language with concrete steps or detailed plans, and argues that the absence of such steps in Comey’s case weakens the claim that his post reflected genuine criminal intent.
The article ultimately characterizes the case as residing in a “legal gray area,” but leans toward the view that both the intent element and the true-threat requirement are unlikely to be satisfied on these facts, warning that criminalizing a cryptic, context-dependent social media post from a prominent political critic risks chilling the “uninhibited, robust, and wide-open” debate about public officials that the Supreme Court has repeatedly said the 1st Amendment is meant to protect.
Different views on the topic
In contrast to the article’s skepticism, the Justice Department has presented the “86 47” post as an unambiguous threat that falls squarely outside 1st Amendment protection, with the indictment asserting that Comey “knowingly and willfully” made a threat and that a reasonable person aware of the circumstances would interpret the shells spelling “86 47” as a serious expression of intent to harm the president.[1]
Moreover, prosecutors have argued under 18 U.S.C. § 875(c) that Comey at least consciously disregarded a substantial risk that his communication would be viewed as threatening violence, stressing that the law focuses on the objective understanding of a reasonable recipient rather than on a defendant’s later claim that the post was merely political commentary or a misinterpreted image.[1]
Supporters of the prosecution, including President Trump and political allies, have portrayed the Instagram image as a veiled call for violence against the 47th president rather than a harmless beach photo, pointing to the slang meaning of “86” as “nix” or “get rid of” and arguing that, given the fraught history between Trump and Comey, the post was at best reckless and at worst an intentional coded death threat that should not be insulated by the 1st Amendment.[1][4]
Additionally, those backing the charges note that a federal grand jury heard the government’s evidence and still found probable cause to indict Comey for threatening the president and transmitting a violent threat in interstate commerce, arguing that this formal finding undercuts the notion that the case is merely speculative or constitutionally frivolous.[1]
Some critics of Comey contend that, as a former FBI director with decades of experience in criminal law and threat assessment, Comey cannot credibly claim ignorance of the violent connotations of “86” and should be held to a higher standard than ordinary social media users, asserting that permitting such coded language from a veteran law-enforcement official would invite powerful figures to skirt threat laws through innuendo.
In a separate line of criticism, commentary surrounding the collapse of this and related cases on appointment- and procedure-based grounds has emphasized that a federal judge ultimately dismissed the charges against Comey and New York Atty. Gen. Letitia James because of an error in the prosecutor’s appointment rather than a definitive ruling that their conduct was protected by the 1st Amendment, suggesting that the underlying questions about how far true-threat doctrine reaches in the social media era remain unsettled.[3][5][6]
By contrast with the article’s focus on gray areas in 1st Amendment doctrine, some civil-liberties advocates and defense lawyers have framed the case not as a close constitutional question but as a clear-cut example of selective or vindictive prosecution ordered by President Trump, arguing in court that the indictments should be thrown out entirely because the prosecutor’s appointment was unlawful and the cases are part of a broader pattern of “weaponized” law enforcement against Trump critics.[2][3][4]
More From the Los Angeles Times
Podcasts
The Federal Emergency Management Agency (FEMA) recently approved California’s request to extend housing assistance to survivors of the Eaton and Palisades fires. But more than 18 months after those January 2025 fires, survivors are still waiting on an additional $16 billion in federal disaster relief from the federal government, which was revised down earlier this year from nearly $34 billion.
The Hillside Strangler murders terrorized Los Angeles in the late 1970s. The killers were a pair of sadistic cousins. One confessed. The other was set to stand trial—until L.A. prosecutors flinched.
Modern LA earned its first smoggy nickname 450 years ago, as the “bay of smokes.” At the La Brea tar pits, we take a short walk through a long history with curator Regan Dunn, who explains how and why the first Angelenos would have set fires that filled the broad bowl of LA and foretold the curse of smog.
