{"id":42570,"date":"2026-06-04T07:15:00","date_gmt":"2026-06-04T14:15:00","guid":{"rendered":"https:\/\/www.lifeandnews.com\/articles\/?p=42570"},"modified":"2026-06-04T08:17:55","modified_gmt":"2026-06-04T15:17:55","slug":"james-comeys-instagram-seashell-post-sits-in-a-murky-legal-zone-between-protected-political-speech-and-criminal-threat","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/james-comeys-instagram-seashell-post-sits-in-a-murky-legal-zone-between-protected-political-speech-and-criminal-threat\/","title":{"rendered":"James Comey\u2019s Instagram seashell post sits in a murky legal zone between protected political speech and criminal threat"},"content":{"rendered":"\n

Wayne Unger<\/a>, Quinnipiac University<\/a><\/em><\/p>\n\n\n\n

In the case of United States v. James Brien Comey Jr., the U.S. president\u2019s security is pitted against the bedrock right to free speech enjoyed by Americans.<\/p>\n\n\n\n

Two federal charges<\/a> have been lodged against former FBI Director James Comey and are based on his Instagram post that depicted seashells spelling out \u201c86 47<\/a>.\u201d<\/p>\n\n\n\n

Comey\u2019s post was interpreted by the U.S. Department of Justice as a threat to harm President Donald Trump. The indictment, obtained by the DOJ, alleges Comey violated two federal laws: 18 U.S.C. \u00a7 871<\/a>, which makes it a crime to \u201cknowingly and willfully\u201d threaten, kidnap or \u201cinflict bodily injury upon the President of the United States,\u201d and 18 U.S.C. \u00a7 875<\/a>, which criminalizes \u201ccommunication containing any threat to kidnap any person or any threat to injure the person of another.\u201d<\/p>\n\n\n\n

Comey\u2019s argument against the charges is likely to be twofold: (1) He lacked the requisite intent that the prosecutor needs to prove his case, and (2) even if he had the intent required by the statute, his speech is protected by the First Amendment. U.S. District Judge Louise Flanagan set Oct. 21 as the Comey case trial date<\/a>.<\/p>\n\n\n\n

I\u2019m a scholar of constitutional and criminal law as well as the First Amendment<\/a>. The charges against Comey exist in a legal gray area that includes the First 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.<\/p>\n\n\n\n

\"Three
Ellis Boyle, U.S. attorney for the Eastern District of North Carolina, is flanked by acting Attorney General Todd Blanche, left, and FBI Director Kash Patel at a press conference on April 28, 2026, concerning charges against James Comey. Tasos Katopodis\/Getty Images<\/a><\/figcaption><\/figure>\n\n\n\n

Parsing the charges<\/h2>\n\n\n\n

In criminal law, there are generally two parts to most crimes \u2013 the criminal act and the criminal intent. The criminal act is referred to as the \u201cactus reus<\/a>.\u201d The criminal intent is known as the \u201cmens rea<\/a>.\u201d<\/p>\n\n\n\n

Some crimes also require a particular result. For instance, murder requires a death of a person<\/a>. A defendant can neither be charged with nor convicted of murder unless and until the victim dies. If the victim doesn\u2019t die, then at most the defendant can be convicted of only attempted murder.<\/p>\n\n\n\n

The criminal charges alleged in Comey\u2019s case don\u2019t require a result, however. The president need not be kidnapped or injured for someone to be charged with violating either of them.<\/p>\n\n\n\n

But the prosecutor must still prove the criminal intent and the criminal act for both charges to stick in Comey\u2019s case. In my view, the Justice Department will have a difficult time proving the mens rea against him.<\/p>\n\n\n\n

Comey has consistently maintained that he didn\u2019t know \u201c86 47\u201d implied violence<\/a> against the president.<\/p>\n\n\n\n

Meaning and purpose<\/h2>\n\n\n\n

Comey has stated he came across the shells that spelled out \u201c86 47\u201d while walking on a beach in North Carolina, took a picture and posted it on Instagram.<\/p>\n\n\n\n

The term \u201c86\u201d is commonly used to mean<\/a> \u201cto throw out\u201d or \u201cto get rid of\u201d in American slang. According to Merriam-Webster, the term \u201ccomes from 1930s soda-counter slang meaning that an item was sold out<\/a>.\u201d<\/p>\n\n\n\n

Comey later removed the image from Instagram and posted a statement that read<\/a>, \u201cI posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message. I didn\u2019t 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.\u201d<\/p>\n\n\n\n

Even though Comey has insisted that he thought it was a silly picture of shells arranged in a clever way to express a political viewpoint, the Trump administration argues that Comey not only knew the meaning of \u201c86 47\u201d but that he purposefully threatened the president.<\/p>\n\n\n\n

What\u2019s plausible?<\/h2>\n\n\n\n

The first crime charged in the indictment, 18 U.S.C. \u00a7871, requires the defendant to have \u201cknowingly and willfully\u201d threatened to kidnap or inflict bodily injury upon the president. This is the statute\u2019s mens rea; the defendant must have known that he was threatening the president of the United States.<\/p>\n\n\n\n

Comey\u2019s statements suggest that he didn\u2019t know the threatening nature of his Instagram post. Thus, he cannot be convicted of \u201cknowingly\u201d threatening the president if he didn\u2019t know its meaning.<\/p>\n\n\n\n

To convict Comey, the prosecutor must prove that he did, in fact, know the meaning of \u201c86 47\u201d when he posted it.<\/p>\n\n\n\n

Comey\u2019s career as a federal prosecutor<\/a> and his tenure as the FBI director<\/a> may work against him here. In my view, it\u2019s more than plausible that Comey encountered the threatening version of the term \u201c86\u201d in his career. It\u2019s 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.<\/p>\n\n\n\n

But even if the Justice Department can prove Comey did, in fact, know the threatening nature of \u201c86 47,\u201d its case against him is not a slam dunk.<\/p>\n\n\n\n

And that\u2019s because of the First Amendment.<\/p>\n\n\n\n

Testing what\u2019s protected speech<\/h2>\n\n\n\n
\"A
A draft protester was convicted after declaring in 1966, \u2018If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.\u2019 His conviction was overturned by the Supreme Court. Yoichi Okamoto\/PhotoQuest\/Getty Images<\/a><\/figcaption><\/figure>\n\n\n\n

As a constitutional law scholar, I\u2019d expect Comey to argue that his Instagram post was protected speech.<\/p>\n\n\n\n

Even though the laws charged in Comey\u2019s case are generally valid and constitutional, 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\u2019t be as straightforward as one might think.<\/p>\n\n\n\n

The First Amendment is not absolute \u2013 not all speech and expression is protected by the Constitution.<\/p>\n\n\n\n

In Chaplinsky v. New Hampshire<\/a> from 1942, Justice Frank Murphy wrote that it\u2019s \u201cwell understood that the right to free speech is not absolute at all times and under all circumstances<\/a>.\u201d<\/p>\n\n\n\n

In 1969, the U.S. Supreme Court held in Watts v. United States<\/a> that while \u201ctrue threats\u201d are not protected by the First Amendment, political hyperbole remains protected speech. The Supreme Court defines true threats as statements where 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<\/a>.<\/p>\n\n\n\n

Watts v. United States involved a threat against the sitting president of the United States, Lyndon B. Johnson. In that case, Robert Watts expressed his strong opposition to the military draft at a public rally, saying, \u201cIf they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.\u201d He was subsequently charged and convicted under the same statute, 18 U.S.C. \u00a7 871, used in Comey\u2019s case.<\/p>\n\n\n\n

The Supreme Court reversed the conviction, ultimately agreeing with Watts, who had maintained that his statement was \u201ca kind of very crude offensive method of stating a political opposition to the President<\/a>.\u201d<\/p>\n\n\n\n

As the court explained, quoting an earlier decision on press freedom<\/a>, \u201cFor we must interpret the language Congress chose \u2018against 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<\/a>.\u2019\u201d<\/p>\n\n\n\n

Since Watts, countless defendants have faced similar charges for threatening the president. Many have been convicted.<\/p>\n\n\n\n

In the 1970s, Eugene Hart was convicted<\/a> of threatening the president after his brother reported Hart\u2019s plan to assassinate President Richard Nixon. An appellate court affirmed his conviction, concluding that Hart\u2019s verbal threat coupled with his detailed assassination plan couldn\u2019t have been \u201cuttered in jest or in the nature of a hyperbole.\u201d<\/p>\n\n\n\n

In the 1980s, David Hoffman was convicted<\/a> of threatening President Ronald Reagan when he mailed a letter to the White House stating, \u201cRonnie, Listen Chump! Resign or You\u2019ll Get Your Brains Blown Out.\u201d And in 1999, Donald Adams was convicted<\/a> of threatening the president when he approached the White House gates telling Secret Service officers, \u201cI want to kill the president.\u201d<\/p>\n\n\n\n

But in those cases and others, the defendants took concrete steps that demonstrated their sincerity and conscious awareness of the threatening nature of their speech. In my estimation, both are absent in Comey\u2019s case.<\/p>\n\n\n\n

Wayne Unger<\/a>, Associate Professor of Law, Quinnipiac University<\/a><\/em><\/p>\n\n\n\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Wayne Unger, Quinnipiac University In the case of United States v. James Brien Comey Jr., the U.S. president\u2019s security is pitted against the bedrock right to free speech enjoyed by Americans. Two federal charges have been lodged against former FBI Director James Comey and are based on his Instagram post that depicted seashells spelling out […]<\/p>\n","protected":false},"author":56,"featured_media":42571,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[8025,46,10,296,36,28,4,38,8],"tags":[17826,9794,479,2254,2040,885,891,886,860,990,987,2989,1666],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/42570"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/56"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=42570"}],"version-history":[{"count":1,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/42570\/revisions"}],"predecessor-version":[{"id":42572,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/42570\/revisions\/42572"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/42571"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=42570"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=42570"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=42570"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}