Over the past year, coverage of former FBI Director James Comey seems to have returned to the level of a high school yearbook. Last March, we discussed how Comey channeled Beyoncé in a secret meeting and then possibly revealed a code name in an encore performance for family. Now we’re back to discussing Comey’s beach shell art on social media.
This latest controversy is now at the heart of a second criminal indictment against Comey. In November, a court dismissed the first false statement charge following a challenge to the status of the acting U.S. attorney.
However, this charge is being filed in North Carolina, the location of the beach where the offending shells were found. Comey will now likely create a new category of protected shell speech.
The problem with this charge will be the merits. The complaint concerns an image later deleted by Comey showing “86 47” in shells on a beach. Comey has a rather strange history of drawing inspiration from seashells. However, this message had a deadly twist as many interpreted the message as a call to assassinate or “86” Trump.
Legal questions are being raised about whether the expected charges against former FBI Director James Comey would withstand a First Amendment challenge. (Pete Marovich/Bloomberg via Getty)
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Comey insists he did not create the shell art, but merely posted it to his more than 1 million followers on X. He was merely the prisoner of his shell muses.
For more than a decade, I have been one of Comey’s most outspoken and consistent critics. I have dozens of columns criticizing his excesses and the damage he has done to our system.
Citizens are allowed to condemn a president and even wish him ill.
For that reason, I would rather crawl into one of Comey’s familiar shells than write a column supporting him. However, here we are. The fact is, I believe this charge is ostensibly unconstitutional absent some unknown new facts.
To convict Comey, the Justice Department will have to prove that his photo of a teenager constituted a “genuine threat” under 18 USC § 871 and § 875(c). It’s not.
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The First Amendment is intended to protect unpopular speech. Popular language rarely needs protection. It also protects bad and hate speech. It even protects lies, as long as those lies are not used for fraud or other criminal conspiracies.
In 1969, the Supreme Court declared that a more immediate threat was protected under the First Amendment. In Watts v. United States, an 18-year-old anti-war protester exclaimed, “If they ever let me carry a gun, the first man I want to target is LBJ.”
While the court held that “the statute [criminalizing presidential threats] constitutional on its face,” it emphasized that “what constitutes a threat must be distinguished from what constitutes constitutionally protected speech.”
The court ruled that the expression of wanting to assassinate a president “is a kind of very crude, offensive method of expressing political opposition to the president.” Saying the same thing in a nutshell only goes further away from criminal statements.
Citizens may denounce a president and even wish ill. I’ve written about what I called this “age of anger.” It’s not our first. This nation was founded in anger. The Boston Tea Party was furious. By forming this more perfect union, we have created the world’s greatest protection of free speech in history. It is perhaps the most American contribution to our Bill of Rights. Britain has not – and still does not – protect freedom of speech as we do.
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There are costs involved. Maybe Comey is that prize. However, he has the right to write down any hateful thoughts that occur to him during his walks on the beach.
A true threat requires statements where the speaker intends to convey a serious expression of intent to commit an act of unlawful violence against a particular individual or group of individuals. Virginia v. Black, 538 US 343, 359 (2003).
It is certainly true that the threat can be implicit. However, “The ‘truth’ in that term distinguishes what is going on from jokes, ‘hyperbole’ or other statements that, when put in context, convey no real possibility that violence will ensue.” Tegenman v. Colorado, 600 US 66, 74 (2023).
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At the time, Comey quickly deleted the post, saying it never occurred to him that it would be interpreted as violent.
In a subsequent Instagram post, Comey said he assumed the grenades he saw while walking on the beach were “a political message” and that he “didn’t realize that some people associate those numbers with violence.”
We’ll have to wait and see if the administration has a “smoking grenade” accusation that makes Comey’s grenade speech more menacing as a deliberate and conscious threat. I can’t imagine what that would be other than a sleeper surfer hit squad waiting for a grenade signal.
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Without any such new evidence, it appears to be yet another Comey post that makes his Beyoncé portrayals look professional by comparison.
Ironically, the indictment is unlikely to survive a challenge, but it will likely fulfill Comey’s government narrative. It will undermine legitimate objections to the practice of law under Comey.
Comey’s shell speech should not be celebrated, but protected.
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