James Comey's Deleted '86 47' Instagram Post Is Obviously Protected by the First Amendment
A lot of conservatives are falling prey to the same snowflakery they criticize.
An erstwhile government official's reference to "86"-ing a politician took the news cycle by storm this week, spurring a debate about the meaning of the term and whether or not it is protected speech.
"We've now 86'd [former House Speaker Kevin] McCarthy," former Rep. Matt Gaetz (R–Fla.) posted on X in 2024. He added his allies had managed to do the same to Ronna McDaniel, former chairwoman of the Republican National Committee, and Sen. Mitch McConnell (R–Ky.), who last year stepped down as Senate Republican leader. "Better days are ahead for the Republican Party," Gaetz said.
This was not the "86" post to first set this week's controversy in motion. That came from former FBI Director James Comey, who on Thursday posted an image on Instagram of seashells spelling out "86 47" on the beach. "Cool shell formation on my beach walk," the caption said under the now-deleted post.
Reactions were swift and furious. "James Comey in my view should be held accountable and put behind bars for this," said Director of National Intelligence Tulsi Gabbard on Fox News. "Disgraced former FBI Director James Comey just called for the assassination of @POTUS Trump," Kristi Noem, secretary of the Department of Homeland Security (DHS), posted on X. "DHS and Secret Service is [sic] investigating this threat and will respond appropriately." The FBI would "provide all necessary support" for that investigation, Kash Patel, director of the bureau, echoed shortly thereafter.
Comey has the unique distinction of already being intensely unpopular across the political spectrum. Many Democrats detested his probe into then–presidential candidate Hillary Clinton's emails; many Republicans despise his long-standing vocal opposition to President Donald Trump, which takes an uncharacteristically partisan tone for a former FBI director. (In reality, Comey's high-profile troubling behavior began decades ago when he prosecuted Martha Stewart for lying about a crime—insider trading—that the federal government didn't even formally allege she'd committed. The audacity.)
But Comey's reputation—tainted as it may be—has no bearing on whether his Instagram post is protected by the First Amendment, or if the recent calls from powerful officials are grounded in reality. In terms of the former, it very clearly is; in terms of the latter, they very clearly are not.
First things first: What does "86"-ing someone most commonly mean? According to Merriam-Webster, it is "to eject, dismiss, or remove (someone)," "to remove (an item) from a menu," or "to reject, discontinue, or get rid of (something)." The term originated "from 1930s soda-counter slang meaning that an item was sold out," notes Webster, with the term later taking hold as a verb in the hospitality industry, as many service workers can attest, to reference expelling a rowdy customer. And while it can be slang for murder, the dictionary opted not to include that in its formal definition "due to its relative recency and sparseness of use."
In other words, it is likely—highly probable, even—that Comey was merely implying Trump should be booted from office. That he was once in a position of immense power may make the post more tasteless, but it does not make it violent. Was Gaetz—who was nominated for attorney general not long ago—saying that he had murdered McCarthy, McDaniel, and McConnell? Was right-wing influencer Jack Posobiec calling for former President Joe Biden's assassination when he posted in January 2022 a call to "86 46"? Should the federal government have launched investigations into them? Should officials have called for criminal charges? Those questions are preposterous, and the answer to all of them is, of course, "no." That some of the most powerful people in the federal government think this is an appropriate approach to Comey says less about his post and more about how they feel about him.
86 46
— Jack Poso ???????? (@JackPosobiec) January 30, 2022
"I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message," he later posted on Instagram. "I didn't 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." The most offensive thing about the ordeal is that a former FBI director is posting pictures of politicized seashells as if he were a Resistance Mom, but I digress.
It's worth asking, though: What if Gabbard, Noem, and the online peanut gallery are right in their implausible assertion that Comey was wishing death on Trump? That would certainly make the post more vulgar and ill-advised. Still, the calls for his arrest and prosecution would be ludicrous, because that speech, too, is protected by the First Amendment, which does not merely shield feel-good words from government retribution. "Imagine saying 20 years ago 'I hope Bin Laden is killed,'" said Conor Fitzpatrick, an attorney at the Foundation for Individual Rights and Expression, a nonprofit dedicated to First Amendment issues. "That is 100% protected speech."
For years, one of the foremost criticisms the right has made against progressives is that they are snowflakes: words are violence; the world is out to get them; they are constantly victims of microaggressions. The critique has often had merit. Now some of those same conservatives would benefit from taking a long, hard look in the mirror.
