Why the Courts Will 86 the Flagrantly Unconstitutional Charges Against James Comey
The case defies more than half a century of rulings on the “true threat” exception to the First Amendment.
Is it plausible that James Comey, a former federal prosecutor, deputy attorney general, and FBI director, publicly threatened to murder President Donald Trump? No, it is not. But that is what W. Ellis Boyle, the U.S. attorney for the Eastern District of North Carolina, claims in an indictment filed on April 28.
That improbable allegation is based on a picture that Comey posted on Instagram in May 2025 while vacationing in North Carolina. Captioned "cool shell formation on my beach walk," the photograph showed seashells arranged in the sand to form the message "86 47." According to the indictment, those four digits constituted two federal felonies, each punishable by up to five years in prison. The charges include one count under 18 USC 871, which applies to someone who "knowingly and willfully" threatens to "take the life of" or "inflict bodily harm upon" the president, and one count under 18 USC 875(c), which criminalizes interstate communications that threaten to "injure the person of another."
Those charges are based on two assumptions about the meaning of the seashell photograph, only one of which is reasonable. The "47," Boyle says, refers to Trump, who in his current term is the 47th president of the United States. No one disputes that interpretation. But Boyle also claims that "86" means kill, so that combining it with "47" forms a statement that "a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States."
That interpretation is linguistically and legally controversial, to put it mildly. It is inconsistent with the typical slang usage of eighty-six, which originated in the mid-20th century as a reference to banning unwanted bar customers. It is also inconsistent with more than half a century of Supreme Court precedents elucidating what sorts of statements qualify as "true threats," one of the few recognized exceptions to the First Amendment. The former point reinforces the latter, since the definition of "true threats" depends on the speaker's state of mind and his audience's "reasonable" understanding of his message.
This is the second time that the Trump administration has tried to prosecute Comey, who occupies a prominent place on the president's list of enemies. "We can't delay any longer," Trump told Pam Bondi, then the attorney general, in a September 20 Truth Social post, publicly ordering her to prosecute Comey. "JUSTICE MUST BE SERVED, NOW!!!" Within five days, Trump got the indictment he demanded, which accused Comey of lying to Congress. But a federal judge dismissed that indictment two months later after concluding that the Trump loyalist who obtained it had been illegally appointed as an acting U.S. attorney.
Because Comey delivered the Senate testimony at the center of that case in September 2020, the deadline for filing charges based on what he said then has come and gone. By contrast, Comey posted his allegedly homicidal photo a year ago, so Boyle is well within the statute of limitations. But that is the only respect in which this case is stronger than the previous one, which hinged on a debatable interpretation of Comey's testimony. The new case, by contrast, hinges on an interpretation that is plainly absurd, which makes the attempt to punish Comey for his speech blatantly unconstitutional.
What Does 'Eighty-Six' Mean?
The verb eighty-six means to "reject" or "discard," according to Webster's New Universal Unabridged Dictionary. That definition derives from a more specific meaning that the dictionary also lists: to "refuse to serve" an "undesirable or unwelcome customer" at a "bar or restaurant." Webster's dates the latter meaning to the early 1960s, speculating that it may allude to a rhyme with nix.
The Oxford English Dictionary (OED) cites an earlier use of eighty-six in that sense. In 1942, the Washington, D.C., Times Herald explained that "'eighty-six' is the trade term for refusing to serve a patron any more liquor." A 1968 New York Times article likewise described "you're 86'd" as "a barroom phrase that means 'you're banned in here.'"
That meaning has been extended to other contexts. In the Mel Brooks/Buck Henry sitcom Get Smart, which ran from 1965 to 1970, the code name of the bumbling spy played by Don Adams was Agent 86, implying that he was manifestly unqualified for his job. In 1971, UPI's Hollywood correspondent referred to singers whose TV shows "have been eighty-sixed." In the 1972 movie The Candidate, a media adviser tells Robert Redford's character that he needs to "eighty-six the sideburns."
A decade later, a Miami Herald critic complained about a restaurant's limited selection of entrées: "On a menu with only 17 main dishes, we were told that nearly half had been 'eighty-sixed,' meaning unavailable." In 1990, the Binghamton Press and Sun-Bulletin reported that President George H.W. Bush had "eighty-sixed broccoli from his diet." A 2000 Los Angeles Times story about the "Y2K" problem reported that "Orange County's biggest restaurant chains" had "eighty-sixed New Year's computer gremlins." In 2010, a columnist for the Hammond, Indiana, Times noted that felony charges against a city council candidate "have been eighty-sixed." A 2020 New York Times crossword puzzle gave eighty-sixed as the clue for axed.
And so on. In its broadest sense, the OED says, eighty-six means "to reject or abandon." Applied to a politician, that could mean blocking his agenda, removing him from office, or downgrading his power.
The president's allies have been known to use eighty-six in that sense. In 2024, Matt Gaetz, a Republican who was then a Florida congressman, bragged that "we've now 86'd" former House Speaker Kevin McCarthy (R–Calif.), former Republican National Committee Chairwoman Ronna McDaniel, and former Senate Majority Leader Mitch McConnell (R–Ky.). As a result, Gaetz said, "better days are ahead for the Republican Party."
The application of eighty-six to Trump also predates Comey's Instagram post. During a 2020 TV interview, Michigan Gov. Gretchen Whitmer, a Democrat, spoke next to a table on which a sticker with the slogan "86 45" was displayed, referring to Trump's place in the presidential order during his first term. Trump's detractors also could buy T-shirts with that slogan, which were updated after he won the 2024 presidential election. During the Biden administration, Republicans likewise could advertise their politics with "86 46" stickers and T-shirts.
Given this context, it beggars belief to suppose that Comey was threatening to assassinate the president when he shared his seashell picture. In a May 3 interview on NBC's Meet the Press, Acting Attorney General Todd Blanche conceded that the slogan at the center of Comey's indictment is "posted constantly" without triggering federal charges, although he also claimed all those posts qualify as "threatening statements against President Trump." The case against Comey, Blanche averred, was bolstered by additional evidence discovered during an 11-month FBI investigation. Blanche did not specify the nature of that evidence, and neither does the indictment.
"I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message," Comey wrote on Instagram after he deleted his post in response to criticism. "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."
As First Amendment scholar Eugene Volokh noted after the indictment, "Nothing in Comey's statement can be reasonably understood as conveying that he means to kill Trump. Rather, its reasonably understood meaning is that Comey wants Trump removed, for instance through impeachment or (as with President Nixon) resignation under threat of impeachment."
Trump portrays that explanation as transparently phony. "'86' is a mob term for 'kill him,'" he insisted on Truth Social the day after the indictment. "They say 86 him! 86 47 means 'kill President Trump.' James Comey, who is a Dirty Cop, one of the worst, knows this full well!"
Trump is right that eighty-six, depending on the context, can mean kill. In a 1990 story about a white supremacist who had been convicted of murder, for instance, the Associated Press quoted a witness who testified that the defendant had told him "I just eighty-sixed" the victim. But that usage is just one of the term's meanings. To accept Trump's definition as the only possible understanding of eighty-six, you would have to believe not only that everyone who wears an "86 47" T-shirt is advocating the president's assassination but also that Gaetz confessed to murdering McCarthy, McDaniel, and McConnell, all of whom are still alive.
This linguistic dispute is not merely a word game. It goes to the heart of the question of whether it is consistent with the First Amendment to treat Comey's Instagram post as a crime. Under the relevant Supreme Court decisions, it clearly is not.
What Is a 'True Threat'?
Sixty years before Comey was accused of threatening the president, Robert Watts faced the same charge. Watts, then 18, participated in a Vietnam War protest at the Washington Monument on August 27, 1966. "I have already received my draft classification as 1-A," he told his fellow demonstrators, "and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle, the first man I want to get in my sights is LBJ."
The other protesters laughed. But as the Secret Service saw it, Watts had threatened to assassinate President Lyndon B. Johnson. The Supreme Court saw it differently in the 1969 case Watts v. United States.
"A statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind," said the unsigned majority opinion. "What is a threat must be distinguished from what is constitutionally protected speech."
The law "requires the Government to prove a true 'threat,'" the majority noted. "We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose 'against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'"
The Court agreed with Watts that "his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.'" Given the context, "the expressly conditional nature of the statement," and "the reaction of the listeners," the justices said, "we do not see how it could be interpreted otherwise."
Watts, whom the Associated Press described as "a Harlem civil rights worker," was a member of a W.E.B. Du Bois Club, part of a youth organization created by the Communist Party. He probably would not have gotten along with the petitioners in Virginia v. Black, a 2003 Supreme Court case that also addressed the distinction between "true threats" and protected speech.
That case involved three men who were convicted of violating a Virginia law that made it a crime to burn a cross in a public place or "on the property of another" with "the intent of intimidating any person or group of persons." Barry Black had organized a Ku Klux Klan rally in Carroll County, which was held on private property with the owner's permission and included a cross burning. Richard Elliott and Jonathan O'Mara, by contrast, had attempted to burn a cross on the front lawn of James Jubilee, Elliott's black neighbor in Virginia Beach.
"While a burning cross does not inevitably convey a message of intimidation," Justice Sandra Day O'Connor wrote for the majority, "often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful."
The First Amendment "permits a State to ban a 'true threat,'" O'Connor noted, and that category encompasses "those 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." She added that the speaker "need not actually intend to carry out the threat." Rather, "a prohibition on true threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.'"
In light of those goals, O'Connor said, "Virginia's statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate." But in a section of her opinion joined by three other justices, O'Connor concluded that the law was unconstitutional because it said cross burning "shall be prima facie evidence of an intent to intimidate," which according to the model jury instruction meant that conduct, by itself, was sufficient to infer the requisite intent.
Does Intent Matter?
The state of mind required to convict someone of making threats also figured in Elonis v. United States. That 2015 case involved a Pennsylvania man, Anthony Douglas Elonis, whose Facebook posts, some of which were presented as rap lyrics under the pseudonym "Tone Dougie," alarmed his estranged wife and his co-workers at Dorney Park & Wildwater Kingdom.
In October 2010, Elonis posted a photograph taken during the park's Halloween Haunt that showed him in costume, holding a toy knife to the throat of a co-worker who had accused him of sexual harassment. "I wish," the caption said.
After Elonis was fired because of that message, he posted a response that mentioned "sinister plans for all my friends" and noted that he "had access to keys" for the park. "Y'all think it's too dark and foggy to secure your facility from a man as mad as me?" he wrote. "You see, even without a paycheck, I'm still the main attraction. Whoever thought the Halloween Haunt could be so fuckin' scary?"
Elonis also posted hostile remarks about his wife, who had moved out of their home with their two young children in May 2010. One example: "If I only knew then what I know now…I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder." Another: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave."
The FBI arrested Elonis under Section 875(c), one of the statutes that Comey is accused of violating. He was convicted on four of five counts and sentenced to 44 months in prison. After Elonis challenged his conviction, the U.S. Court of Appeals for the 3rd Circuit ruled that Section 875(c) does not require proof that "the speaker subjectively intended to threaten." The appeals court said the jury had been properly instructed that a statement qualifies as a "true threat" when "a reasonable person" would anticipate that it would be interpreted as "a serious expression of an intention to inflict bodily injury or take the life of an individual."
That "reasonable person" standard was deficient, the Supreme Court ruled in Elonis. The conviction "was premised solely on how his posts would be understood by a reasonable person," Chief Justice John Roberts noted in an opinion joined by six of his colleagues. "Such a 'reasonable person' standard is a familiar feature of civil liability in tort law, but is inconsistent with 'the conventional requirement for criminal conduct—awareness of some wrongdoing.' Having liability turn on whether a 'reasonable person' regards the communication as a threat—regardless of what the defendant thinks—'reduces culpability on the all-important element of the crime to negligence,' and we 'have long been reluctant to infer that a negligence standard was intended in criminal statutes.'"
That decision did not ultimately help Elonis. On remand in 2016, the 3rd Circuit ruled that the erroneous jury instruction was "harmless" because the verdict "would have been the same absent the error." Elonis therefore served his sentence despite his Supreme Court victory. And although the Court made it clear that negligence was not enough to prove a violation of Section 875(c), it did not specify what sort of culpability would suffice to establish a "true threat."
The Supreme Court took up that issue eight years after Elonis in response to a petition by Billy Counterman, a Colorado man who had bombarded a local singer, identified as "C.W." in case documents, with hundreds of Facebook messages that made her fear for her safety. While many of those messages were "utterly prosaic," Justice Elena Kagan noted in the 2023 case Counterman v. Colorado, "others suggested that Counterman might be surveilling C.W.," and "a number expressed anger at C.W. and envisaged harm befalling her." Counterman told her to "fuck off permanently," for example. He also warned her that "staying in cyber life is going to kill you" and complained that "you're not being good for human relations," adding, "Die."
Counterman was convicted of violating Colorado's law against "stalking," an offense that includes repeated communications that "would cause a reasonable person to suffer serious emotional distress" and that do in fact have that effect. He was sentenced to four and half years in prison. Under the First Amendment, Counterman argued on appeal, prosecutors had to prove that he recognized the threatening nature of his messages. The Colorado Court of Appeals rejected that argument, saying evidence of a speaker's subjective intent was not necessary.
The Supreme Court disagreed. Its decision sent the case back to the Colorado Court of Appeals, which in 2024 ordered a new trial.
"True threats of violence are outside the bounds of First Amendment protection and punishable as crimes," Kagan wrote for the majority in Counterman. "Today we consider a criminal conviction for communications falling within that historically unprotected category. The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements. We hold that it does, but that a mental state of recklessness is sufficient. The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence."
What Convicting Comey Would Require
These precedents do not bode well for the federal case against Comey. To convict him, prosecutors must prove at least two things: that his "86 47" post is reasonably viewed as a "serious expression" of an intent to commit violence and that he "consciously disregarded a substantial risk" that it would be understood as such.
Given the various possible meanings of eighty-six, meeting that first test will be difficult. The very message at issue here is commonly communicated without homicidal intent. Americans can endorse it by wearing T-shirts or displaying bumper stickers available from online retailers such as Amazon and Etsy. According to Trump's logic, the vendors who sell such products and the customers who buy them are all guilty of threatening his life. That is hardly the view of "a reasonable person."
Like Robert Watts at the Vietnam War protest, Comey presented his message in a jocular manner. Given the ubiquity of "86 47," it is completely plausible that Comey did not consider the possibility that it would be understood as a threat of violence, let alone "consciously disregard" that supposedly "substantial" risk.
The day of the indictment, Blanche muddied those issues by faulting Comey for dissing Trump "at a time when this country has witnessed violent incitement followed by deadly actions against President Trump and other elected officials." FBI Director Kash Patel likewise conflated "true threats" with incitement, saying Comey "disgracefully encouraged a threat on President Trump's life and posted it on Instagram for the world to see."
Under the Supreme Court's 1969 ruling in Brandenburg v. Ohio, incitement can be treated as a crime only when it involves speech that is both "directed" at encouraging "imminent lawless action" and "likely" to do so. But Comey is not charged with incitement. He is charged with threatening to kill the president.
Blanche added that "the temperature needs to be turned down," implying that Comey's offense was contributing to political acrimony. The White House levels the same charge at Democrats who call Trump a "fascist," saying their "unhinged rhetoric" encourages violence. Whatever you think of such epithets, they indisputably qualify as constitutionally protected political speech. So does Comey's seashell picture.
