On the subject of United States v. James Brien Comey Jr., the U.S. president’s safety is pitted in opposition to the bedrock proper to unfastened speech loved via American citizens.
Two federal fees had been lodged in opposition to former FBI Director James Comey and are in accordance with his Instagram submit that depicted seashells spelling out “86 47.”
Comey’s submit was once interpreted via the U.S. Division of Justice as a risk to hurt President Donald Trump. The indictment, acquired via the DOJ, alleges Comey violated two federal regulations: 18 U.S.C. § 871, which makes it against the law to “knowingly and willfully” threaten, kidnap or “inflict bodily injury upon the President of the United States,” and 18 U.S.C. § 875, which criminalizes “communication containing any threat to kidnap any person or any threat to injure the person of another.”
Comey’s argument in opposition to the costs could be twofold: (1) He lacked the considered necessary intent that the prosecutor must turn out his case, and (2) despite the fact that he had the intent required via the statute, his speech is secure via the First Modification. U.S. District Pass judgement on Louise Flanagan set Oct. 21 because the Comey case trial date.
I’m a pupil of constitutional and legal legislation in addition to the First Modification. The fees in opposition to Comey exist in a felony grey space that comes with the First Modification and a chain of courtroom selections over 5 many years that experience long past from side to side over what risks represent speech that may be punished.
Ellis Boyle, U.S. lawyer for the Jap District of North Carolina, is flanked via appearing Legal professional Normal Todd Blanche, left, and FBI Director Kash Patel at a press convention on April 28, 2026, regarding fees in opposition to James Comey.
Tasos Katopodis/Getty Pictures
Parsing the costs
In legal legislation, there are usually two portions to maximum crimes – the legal act and the legal intent. The legal act is known as the “actus reus.” The legal intent is referred to as the “mens rea.”
Some crimes additionally require a selected consequence. As an example, homicide calls for a dying of an individual. A defendant can neither be charged with nor convicted of homicide except and till the sufferer dies. If the sufferer doesn’t die, then at maximum the defendant will also be convicted of most effective tried homicide.
The legal fees alleged in Comey’s case don’t require a consequence, on the other hand. The president needn’t be abducted or injured for any person to be charged with violating both of them.
However the prosecutor should nonetheless turn out the legal intent and the legal act for each fees to stay in Comey’s case. Individually, the Justice Division may have a hard time proving the mens rea in opposition to him.
Comey has persistently maintained that he didn’t know “86 47” implied violence in opposition to the president.
Which means and objective
Comey has said he got here around the shells that spelled out “86 47” whilst strolling on a seaside in North Carolina, took an image and posted it on Instagram.
The time period “86” is regularly used to imply “to throw out” or “to get rid of” in American slang. In line with Merriam-Webster, the time period “comes from 1930s soda-counter slang meaning that an item was sold out.”
Comey later got rid of the picture from Instagram and posted a remark that learn, “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.”
Even if Comey has insisted that he idea it was once a foolish image of shells organized in a artful approach to specific a political perspective, the Trump management argues that Comey now not most effective knew the that means of “86 47” however that he purposefully threatened the president.
What’s believable?
The primary crime charged within the indictment, 18 U.S.C. §871, calls for the defendant to have “knowingly and willfully” threatened to kidnap or inflict physically harm upon the president. That is the statute’s mens rea; the defendant should have recognized that he was once threatening the president of america.
Comey’s statements recommend that he didn’t know the threatening nature of his Instagram submit. Thus, he can’t be convicted of “knowingly” threatening the president if he didn’t know its that means.
To convict Comey, the prosecutor should turn out that he did, actually, know the that means of “86 47” when he posted it.
Comey’s occupation as a federal prosecutor and his tenure because the FBI director would possibly paintings in opposition to him right here. Individually, it’s greater than believable that Comey encountered the threatening model of the time period “86” in his occupation. It’s additionally greater than believable that the time period seems in paperwork, data and courtroom filings that Comey has drafted and signed over his occupation, all of which may well be used in opposition to him at trial.
However despite the fact that the Justice Division can turn out Comey did, actually, know the threatening nature of “86 47,” its case in opposition to him isn’t a slam dunk.
And that’s as a result of the First Modification.
Trying out what’s secure speech
A draft protester was once convicted after mentioning in 1966, ‘If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.’ His conviction was once overturned via the Superb Courtroom.
Yoichi Okamoto/PhotoQuest/Getty Pictures
As a constitutional legislation pupil, I’d be expecting Comey to argue that his Instagram submit was once secure speech.
Even if the regulations charged in Comey’s case are usually legitimate and constitutional, legal defendants can all the time argue that another way legitimate and constitutional regulations are unconstitutional as implemented to them and their explicit case. Comey is prone to argue this in his protection, but it surely gained’t be as easy as one may assume.
The First Modification isn’t absolute – now not all speech and expression is secure via the Charter.
In Chaplinsky v. 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. Superb Courtroom held in Watts v. United States that whilst “true threats” aren’t secure via the First Modification, political hyperbole stays secure speech. The Superb Courtroom defines true threats as statements the place the speaker approach to be in contact a major expression of intent to devote an act of illegal violence in opposition to a selected particular person or crew of people, however the speaker needn’t if truth be told intend to hold out the risk.
Watts v. United States concerned a risk in opposition to the sitting president of america, Lyndon B. Johnson. If that’s the case, Robert Watts expressed his sturdy opposition to the army draft at a public rally, announcing, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” He was once therefore charged and convicted beneath the similar statute, 18 U.S.C. § 871, utilized in Comey’s case.
The Superb Courtroom reversed the conviction, in the long run agreeing with Watts, who had maintained that his remark was once “a kind of very crude offensive method of stating a political opposition to the President.”
Because the courtroom defined, quoting an previous resolution 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 wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’”
Since Watts, numerous defendants have confronted an identical fees for threatening the president. Many had been convicted.
Within the Nineteen Seventies, Eugene Hart was once convicted of threatening the president after his brother reported Hart’s plan to assassinate President Richard Nixon. An appellate courtroom affirmed his conviction, concluding that Hart’s verbal risk coupled along with his detailed assassination plan couldn’t had been “uttered in jest or in the nature of a hyperbole.”
Within the Nineteen Eighties, David Hoffman was once convicted of threatening President Ronald Reagan when he mailed a letter to the White Area declaring, “Ronnie, Listen Chump! Resign or You’ll Get Your Brains Blown Out.” And in 1999, Donald Adams was once convicted of threatening the president when he approached the White Area gates telling Secret Provider officials, “I want to kill the president.”
However in the ones circumstances and others, the defendants took concrete steps that demonstrated their sincerity and mindful consciousness of the threatening nature in their speech. In my estimation, each are absent in Comey’s case.
