Numbers, Seashells, and Social Media: New Case Sheds Light on Comey’s Threat Indictment

Last month, the numbers “86 47” mysteriously appeared in the National Mall’s grass. A White House spokesperson quickly responded that “anyone who engages in or endorses political violence or assassination culture must be condemned in the harshest terms possible.” The US Department of the Interior asserted that “any threat against the President is taken very seriously by the Department.” Those statements square with the narrative underlying the April indictment of former FBI director James Comey—that a picture he posted last year on Instagram of seashells on a beach “arranged in a pattern making out ‘86 47’” constitutes an illegal threat of violence against President Donald Trump. I previously examined problems with the government’s case, including the contested meaning of “86 47.” Does it express the sentiment that Trump, the nation’s forty-seventh president, should be removed from office or is it (as the indictment asserts) “a serious expression of an intent to do harm to the President of the United States”? Comey’s arraignment is scheduled for September 30 in federal court in New Bern, North Carolina, and the trial is set for October 21 before Judge Louise Flanagan. In between Comey’s indictment and the National Mall incident, US District Judge Randolph Moss issued a June 1 ruling granting a temporary restraining order—later extended and made permanent on June 29—that bars the government from removing an “8647” flag displayed at “a 24/7 demonstration calling for the impeachment and removal of President Donald Trump on National Park Service (‘NPS’) land” near a courthouse in Washington, DC. Moss concluded that “[a]t least on the current record, the Court is persuaded that Plaintiff’s ‘8647’ flag constitutes protected speech [and] does not pose a true threat to the President or to anyone else.” He found “no evidence” in the record “supporting Defendants’ contention that the flag represented a true threat on the life or physical well-being of” Trump. Moss’s rulings don’t just undercut the government’s case against Comey; they articulate a framework for analyzing whether Comey’s post is a violent threat falling “outside the bounds of the First Amendment’s protection.” Unlawful true threats are “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Moss’s June opinions in Accountability Now USA v. Griess aren’t binding on Flanagan. Furthermore, true threats cases are context- and fact-specific; the facts in Griess and Comey differ. Nonetheless, both cases involve whether “86 47” is a threat against Trump, and Moss tees up variables for Flanagan’s consideration. Citing Merriam-Webster’s online dictionary description of 86, Moss determined that 86’s meanings of getting rid of something and throwing something out are “more common” than using 86 “to refer to an act of violence” and that “‘86’ is used far more often to mean ‘throw out’ than ‘kill.’” Importantly, Moss found that “86 47” can be “political speech.” The Supreme Court holds that political speech “is central to the meaning and purpose of the First Amendment.” In sum, Judge Flanagan in Comey doesn’t need to defer to the government’s desired definition of a polysemic term, especially when kill is not the predominant definition and when 86 can convey a political message in conjunction with 47. Moss examined Accountability Now USA’s stated intent about its flag’s meaning: That it “was ‘not in any way a threat against the President’ but, rather, was part of months-long demonstrations demanding ‘the impeachment and removal of President Trump.’” Comey says he didn’t arrange the shells, claims he assumed they conveyed “a political message,” and contends he “didn’t realize some folks associate those numbers with violence.” Criminal defendants must consciously disregard a substantial risk that their speech would be understood as threatening violence before they lose First Amendment protection. Stressing the importance of a “context-specific inquiry” to decide how a “reasonable observer” would interpret Accountability Now USA’s “8647” flag, Moss observed that “the flag itself contains no symbols of violence; it is red, white, and blue, and is simply adorned with white stars. It contains no knives, skulls, nooses, or other threatening symbols.” Similarly, Comey’s social media post of a picture of seashells lacks any indicia of violence. It’s accompanied only by Comey’s caption: “Cool shell formation on my beach walk.” The government in Griess “repeatedly assert[ed] that the use of the term [86 47] in the context of unprecedented and recent assassination attempts against the President constitutes a true threat.” That abstract, hostile-political-climate argument didn’t sway Moss. Instead, he demanded case-specific facts to prove that the “8647” flag, as displayed in the context of an organization’s ongoing demonstration, is an unlawful threat. What case-specific facts Flanagan demands—and what case-specific facts the government produces—about the meaning of Comey’s Instagram post remains to be seen.