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The Justice Department this week announced it is prosecuting former FBI Director James Comey for a social media post that it contends was a threat against President Trump.
Comey posted a picture of an arrangement of seashells on the beach spelling out the numbers 8,6, 4 and 7. He commented “Cool shell formation on my beach walk.” Comey took the post down a short time later, saying some saw it in violent terms. He apologized and said that wasn’t his intent.
The FBI contends that the message should be read as “86” (reportedly slang for “get rid of,” or as the FBI maintains, “kill), and “47” is allegedly a reference to Trump, the 47th president.
It’s difficult to understand how even a highly politicized Justice Department could bring itself to prosecute Comey. His post was clearly protected by the First Amendment.
Three reasons the prosecution is likely to fail:
1. This wasn’t a “true threat.” That’s a legal term for intending to frighten someone into believing that he or she will be seriously harmed. This was not a menacing phone call. It was a very public post showing an arrangement of seashells that could be interpreted in many different ways. It’s been reported that “86” is used in the restaurant business to refer to canceled meals. Trump has referred to it as a term used in old gangster movies. Contrast Comey’s social media post with those who marched on the Capitol carrying nooses and calling for the hanging of Vice President Mike Pence on Jan. 6, 2021. They have since been pardoned by the president.
2. This was political speech. The most protected form of speech in America is commentary about our public officials and political figures. Politicians, including the president, routinely make hyperbolic statements referencing war and violence. “We’ll kill them in the midterms” is not taken literally. The alleged “war on Christmas” does not involve tanks.
3. This was reporting. Somewhat overlooked in all of this is that Comey says he came across the beach display and did not create it himself. If that’s the case, he recorded something found in a public place and shared it with a larger segment of the public, which is exactly what millions of people do every day on social media. If a journalist covering a protest takes a photo that includes a sign with the words “8647,” that’s not a threat against the president. It’s the documentation of a news event.
The prosecution is also suspect because of Trump’s long-standing enmity for Comey, who was fired by the president in 2017 in connection with the FBI’s investigation into possible Russian influence on the 2016 election. Secret Service agents interviewed Comey last May, and no charges were brought until a different criminal case against Comey was thrown out of court. FBI director Kash Patel said the investigation of the seashells placement was conducted over “the past nine, 10, 11 months.”
There’s a strong likelihood that this prosecution will be dismissed early in the judicial process. The Justice Department brings to this case extensive resources and staffing. Comey will bring the First Amendment. That should be enough.
Ken Paulson is the director of the Free Speech Center.
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