Comey Charged Over Instagram Post on Seashells

" The indictment alleges the post constituted a threat to harm President Trump, the 47th president, interpreting "86" as slang for killing someone. '" Comey appeared in federal court on Wednesday and has not entered a plea. " His lawyer indicated plans to file a motion to dismiss the case on grounds of vindictive and selective prosecution.

Legal experts expressed skepticism about the government's ability to prove the post qualifies as a "true threat" unprotected by the First Amendment. The Supreme Court has ruled that true threats require a subjective understanding of the statement's threatening nature, as in the 2023 case Counterman v.

Colorado, where prosecutors must show the defendant consciously disregarded a substantial risk that statements would be viewed as threatening. Another relevant ruling is the 1969 Watts v. United States, where the court found a protester's remark about then-President Lyndon B.

Johnson to be political hyperbole, not a true threat. Experts noted that ambiguous speech must be given generous interpretation to protect free expression.

“If you can charge somebody for arranging seashells in the sand with an ambiguous message, if that's a threat, if that's criminal speech, then the First Amendment is in serious jeopardy.”

Carissa Byrne Hessick, a law professor at the University of North Carolina, stated that the case presents significant legal issues, including potential selective prosecution claims. Len Niehoff, a law professor at the University of Michigan, said prosecuting ambiguous speech contradicts First Amendment principles that require giving speech breathing room.

Comey posted the photo last May while on a beach walk, later deleting it and explaining he assumed "86 47" conveyed a political message without realizing associations with violence. The indictment charges him under a federal statute for transmitting a threat in interstate commerce, requiring proof that he knew the communication would be viewed as a threat, per the 2015 Supreme Court ruling in Elonis v.

U.S. This is the second criminal case against Comey by the Justice Department. He was indicted in September on charges of lying to Congress, but a judge dismissed that case, finding the prosecutor unlawfully appointed. The court did not rule on Comey's claims of vindictive prosecution in that instance.

Acting Attorney General Todd Blanche announced the indictment earlier this week. When asked about similar uses of "86" by others, such as former GOP Rep. Matt Gaetz referencing Republican leaders in 2024 or right-wing influencer Jack Posobiec posting "86 46" about then-President Joe Biden in 2022, Blanche said pursuits would depend on investigations and factors.

Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression, stated that the case could chill political speech, as people might self-censor to avoid government action. He noted Comey's access to high-level legal resources is not typical for most Americans.

Perry Carbone described the post as protected political speech, lacking a serious expression of intent to commit violence. Carissa Byrne Hessick suggested a judge could dismiss charges on statutory grounds before reaching constitutional questions.

“This post falls clearly within the ambit of protected political speech. The Supreme Court has made clear that even hyperbolic or what some might consider intemperate political expression, it's protected unless it crosses the line into a real threat.”

Experts agreed the government faces challenges proving Comey's intent, given the post's ambiguity and his subsequent explanation. The case highlights tensions between free speech protections and interpretations of threats against public figures.