In the case of United States v. James Brien Comey Jr., the security of the American president is pitted against the fundamental right of free speech that Americans enjoy.
Two federal charges have been filed against former FBI Director Comey and they are based on his Instagram post showing seashells spelling out “86 47,” which many people thought were using “86” as the abbreviation for restaurant to get rid of something and “47” as the number of Trump's second presidency.
Comey's post was interpreted by the US Department of Justice as a threat to harm President Trump. The indictment alleges that Comey violated two federal laws: one that makes it a crime to “knowingly and voluntarily” threaten the president of the United States and one which criminalizes “communication containing any threat to kidnap any person or any threat to injure the person of another person.”
Comey's argument against the charges is likely twofold: He lacked the required intent the prosecutor needs to prove his case, and 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 trial date in the Comey case.
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 on what dangers constitute punishable speech.
In the Comey case, the central issue may not be the act of expression itself, but rather whether the defendant had criminal intent when he posted the image. Comey has consistently maintained that he did not know that “86 47” could involve violence against the president. He said he came across the shells that spelled out “86 47” while walking on a beach in North Carolina, took a photo and posted it on Instagram.
Comey later removed the image from Instagram and posted a statement saying, “I previously posted a photo of some shells I saw on a beach walk today, which I assumed was a political message. I didn't realize that some people associate those numbers with violence. It never occurred to me, but I am opposed to violence of any kind, so I removed the post.”
To convict Comey, the prosecutor must show 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 FBI director may work against him in this case. It is more than plausible that Comey has encountered the menacing version of the term “86” in his career. It is also more than plausible that the term appears in documents, records and court filings that Comey has drafted and signed throughout his career, all of which could be used against him at trial.
But even if the Justice Department can prove that Comey did, in fact, know about the threatening nature of “86 47,” its case against him is not a failure.
And that's because of the First Amendment.
Comey is likely to argue that his Instagram post was protected speech and therefore could not be legally criminalized.
Criminal defendants can always argue that valid, constitutional laws are unconstitutional as they apply to them and their particular case. Comey will likely argue this in his defense, but it won't be easy.
The First Amendment is not absolute. That's where those five decades of jurisprudence come in.
In Chaplinsky vs. New Hampshire 1942, Justice Frank Murphy wrote that “it is well understood that the right to freedom of expression is not absolute at all times and in all circumstances.”
In 1969, the United States Supreme Court held in Watts v. United States that, while “true threats” are not protected by the First Amendment, political hyperbole is still protected speech. The Supreme Court defines true threats as statements in which the speaker intends to communicate a serious expression of intent to commit an act of unlawful violence against a particular individual or group of individuals, but it is not necessary that the speaker actually intended to carry out the threat.
Watts vs. The United States posed 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 I am ever forced to carry a rifle, the first man I want to have in my sights is LBJ.” He was charged and convicted under one of the same statutes used in the Comey case.
The Supreme Court overturned the conviction and ultimately agreed with Watts, who had argued that his statement was “a kind of very crude offensive method of expressing political opposition to the president.”
As the court explained, citing an earlier decision on press freedom, “because we must interpret Congress's chosen language 'in the context of a deep national commitment to the principle that debate on public issues must be uninhibited, robust, and open, and may well include vehement, caustic, and sometimes unpleasantly sharp attacks on the 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 on Hart's plot to assassinate President Nixon. An appeals court upheld his conviction and concluded that Hart's verbal threat, along with his detailed murder plan, could not have been “spoken in jest or hyperbole.”
In the 1980s, David Hoffman was convicted of threatening President Reagan when he sent a letter to the White House saying, “Ronnie, listen, you fool! Resign or your brains will be blown out.” And in 1999, Donald Adams was convicted of threatening the president when he approached the gates of the White House and told Secret Service agents, “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 opinion, both of these things are absent in the Comey case.
Wayne Unger is an associate professor of law at Quinnipiac University. This article was prepared in collaboration with the conversation.
