Below is my column on Fox.com on the second indictment of former FBI director James Comey. Despite being one of Comey’s longest critics, the indictment raises troubling free speech issues. In the end, it must be the Constitution, not Comey, that drives the analysis and this indictment is unlikely to withstand constitutional scrutiny. If it did, it would allow the government to criminalize a huge swath of political speech in the United States.
Here is the column:
In the last year, coverage of former FBI Director James Comey appears to be reverting to the level of a high school yearbook. Last March, we were discussing how Comey channeled Beyoncé in a classified meeting and then may have revealed a code name in an encore performance for family. Now we are back to discussing Comey’s beach shell art on social media.
The latter controversy is now at the heart of a second criminal indictment of Comey. In November, a court dismissed the first indictment for false statements after a challenge to the status of the acting U.S. attorney.
However, this indictment is being brought 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 indictment will be the merits. The indictment concerns an image that was later removed by Comey showing “86 47” in shells on a beach. Comey has a rather odd history of drawing inspiration from shells. This message, however, had a lethal twist since many interpreted the message as essentially calling for the killing or “86-ing” of Trump.
Comey insists that he did not make the shell art and that he only posted it to his more than 1 million followers on X. He was merely the captive of his shell muses.
For over a decade, I have been one of Comey’s most vocal and consistent critics. I have dozens of columns criticizing his excesses and the damage that he has done to our system.
For that reason, I would prefer to crawl into one of Comey’s conversant shells than write a column supporting him. However, here we are. The fact is that I believe that this indictment is facially unconstitutional absent some unknown new facts.
To convict Comey, the Justice Department will have to show that his adolescent picture was a “true threat” under 18 U.S.C. § 871 and § 875(c). It is not.
The First Amendment is designed to protect unpopular speech. Popular speech rarely needs protection. It also protects bad and hateful speech. It even protects lies so long as those lies are not used for the purpose of fraud or other criminal conspiracies.
In 1969, the Supreme Court declared a more direct threat protected under the First Amendment. In Watts v. United States, an 18-year-old anti-war protester exclaimed, “If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.”
While the court did rule that “the statute [criminalizing presidential threats] is constitutional on its face,” it emphasized that “what is a threat must be distinguished from what is constitutionally protected speech.”
The court ruled that the expression of wanting to kill a president is “a kind of very crude offensive method of stating a political opposition to the President.” Saying the same thing in shell is only further removed from criminal speech.
Citizens are allowed to denounce and even wish a president ill. I have written about what I called this “age of rage.” It is not our first. This nation was founded in rage. The Boston Tea Party was rage. In forming this more perfect union, we created the world’s greatest protection of free speech in history. It is arguably the most American contribution to our Bill of Rights. Great Britain did not — and still does not — protect free speech as we do.
It comes at a cost. Perhaps Comey is that cost. However, he has a right to write out any hateful thoughts that come to him on his walks on the beach.
It is certainly true that the threat can be implied. However, “The ‘true’ in that term distinguishes what is at issue from jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow.” Counterman v. Colorado, 600 U.S. 66, 74 (2023).
At the time, Comey quickly deleted the post and said that it never occurred to him that it would be interpreted as being violent.
In a subsequent Instagram post, Comey said he assumed the shells that he saw on a beach walk were “a political message” and that he “did not realize some folks associate those numbers with violence.”
We will have to wait to see if the administration has a “smoking shell” allegation that makes Comey’s shell speech more menacing as a willful and knowing threat. I cannot imagine what that would be beyond a sleeper surfer hit squad waiting for a shell signal.
Absent such new evidence, it appears to be yet another Comey posting that makes his Beyoncé renditions seem professional in comparison.
Ironically, the indictment is unlikely to survive a challenge, but it is likely to fulfill Comey’s narrative about the administration. It will undermine the legitimate objections to the lawfare waged under Comey.
Comey’s shell speech should not be celebrated, but it should be protected.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
it is going to take more than a few seashells to keep Congressional Democrats in power, now that SCOTUS has ruled, 6-3, along the usual lines, that creating Congressional districts based race, violates the Voting Rights Act.
That the legacy media / Dems are
screamingwait,insulting, no that’s not right, threatening to kill Republicans via ocean seashells shows us how this latest ruling may wipe out Democrat Congressional districts that were drawn on race.LOUISIANA v. CALLAIS ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF LOUISIANA
No. 24–109. Argued October 15, 2025—Decided April 29, 202
These cases concern whether Louisiana’s new congressional map is an unconstitutional racial gerrymander. In 2022, after the State redrew its congressional districts, a federal judge in Robinson v. Ardoin, 605 F. Supp. 3d 759 (MD La.), held that the 2022 map likely violated §2 of the Voting Rights Act of 1965, 52 U. S. C. §10301 et seq., because it did not include an additional majority-black district. But when the State drew a new map, SB8, that contained such a district, the new map was challenged as a racial gerrymander. A three-judge court in Callais v. Landry, 732 F. Supp. 3d 574 (WD La.), held that SB8 violated the Equal Protection Clause of the Fourteenth Amendment, and the State appealed to this Court.
The parties originally briefed and argued this suit last Term, and their arguments at that time highlighted problems in the existing body of §2 case law. One problem resulted from the rule that in racial gerrymandering cases, unlike other cases involving claims of racial discrimination, strict scrutiny is triggered only if race “predominated” in the State’s decision making process. Another problem stemmed from the long-unresolved question whether compliance with the Voting Rights Act provides a compelling reason that may justify the intentional use of race in drawing legislative districts. For over 30 years, the Court has simply assumed for the sake of argument that the answer is yes. These and other problems convinced the Court that the time had come to resolve whether compliance with the Voting RightsAct can indeed provide a compelling reason for race-based districting.
…Four historical developments are of particular note. First, vast social change has occurred throughout the country and particularly in the South, which have made great strides in ending entrenched racial discrimination. Second, a full-blown two-party system has emerged in the States where §2 suits are most common, and there is frequently a correlation between race and party preference. Third, in Rucho v. Common Cause, 588 U. S. 684, this Court held that partisan gerrymandering claims are not justiciable in federal court, and this holding creates an incentive for litigants to exploit §2 for partisan purposes by “repackag[ing] a partisan-gerrymandering claim as a racial-gerrymandering claim,” Alexander v. South Carolina State Conference of the NAACP, 602 U. S. 1, 21. Fourth, the increased use and capabilities of computers in drawing districts and creating illustrative maps means that a §2 plaintiff can easily identify an alternative map that fully achieves all the State’s legitimate goals while producing greater racial balance, if such a map is possible. In light of these developments, the Court updates the Gingles framework and realigns it with the text of §2 and constitutional principles.
Held: Because the Voting Rights Act did not require Louisiana to create an additional majority-minority district, no compelling interest justified the State’s use of race in creating SB8, and that map is an unconstitutional racial gerrymander.
https://www.supremecourt.gov/opinions/25pdf/24-109_21o3.pdf
Note, the dissent was made up by the usual trifecta, though written by Justice Elena Kagan. See Bill Shipley’s comment below (aka @Shipwreckedcrew on X)
It just goes to show that women should have never been allowed in politics, never allowed to be on Courts as Judges, and were meant to be barefoot and pregnant, populating the world. That they gave up their evolutionary role explains why our population numbers are in decline and why SCOTUS has 3 histrionic females who can’t define their own sex.
/s
Shipwreckedcrew
@shipwreckedcrew
So Justice Kagan is reported in Molly Hemingway’s new book on Justice Alito as having urged liberal members of the Court to slow-walk their dissents in the Dobbs case for months after Justice Alito had finished his majority decision, presumably with the “hope” that the composition of the Court would change and the 5-4 outcome striking down Roe would turn into a 4-4 deadlock that left the lower court’s decision in place – affirming Roe.
NOW, it is clear that it was Justice Kagan — and not Justices Jackson and Sotomayor — who has held up her dissent in the Louisiana redistricting case, as she has written the only dissent — with the whispered-about motivation being to push the decision back far enough into the calendar back such that some states don’t have time to engage in redistricting before the Nov. elections — redistricting that might eliminate minority-majority districts and cost Democrats seats.
https://x.com/shipwreckedcrew/status/2049496651916853268
Quite an observation, obstruction.
It’s disturbing. There’s too many laws.
Compact is a mathematical word, esto. Use math to construct polygons using the most compact geometric shape, a circle. Someone here did it—-split line algorithm. The people wrote it to include geometry. They were better educated in those days.
This indictment looks like nonsense. Could it be a way of trying to stimulate conversations between Comey and his coconspirators, to get them to leak interesting info or to extend the duration of their various suspected conspiracies?
The shells are dumb and childish. I’d lime to think our DOJ is responding in kind.
Correction:
“The shells are dumb and childish. I’d liKe to think our DOJ is NOT responding in kind.”
You are absolutely correct.
The DOJ is dumb and childish, and simply trying to play along with Trump’s petulant and childish demands for revenge.
Just as the Dept of Defense has been renamed as the Dept. of War, so should the DOJ be renamed as the Department of Revenge.
Perhaps Comey gave false and misleading statements to the FBI investigating the incident. Perhaps there is a witness that has come forward to testify that they witnessed Comey creating the message rather than his version of stumbling upon it. Regardless, this guy was the Director of the FBI and should never have been doing any of the things he was engaged in doing.
Haven’t read the comments, but it’s obvious Turley believes the indictment is meritless. We know that to be true since Turley has risked indictment himself by publishing what seems to be a copy of the photo Comey published that got him indicted.
OT
NOTE TO SUPREME COURT:
Shortest Splitline Algorithm!
https://rangevoting.org/GerryExamples.html
https://rangevoting.org/SplitLR.html
Anon, they are indeed polygons, compact. I enjoyed the triangle.
Comey is a dangerous man. We know that by his chosen profession. It’s reasonable to presume he’s been involved in 86s at some point in his career. He’s a spook. He’s also cold and will feel nothing about the charges. It doesn’t matter if Comey used seashells or signed an order. He’s dangerous.
If you’ve said it you’ve done it is cautionary to think before speaking, writing or burning down a house.
If we know that Comey is a dangerous man because of his chosen profession, then I guess that makes Kash Patel an equally dangerous man.
Presumably. Additionally these are government officials. Its not your grampa taking a stroll.
The process is the punishment. As much as I despise Comy, this is bs.
There will be no “punishment by process”.
This indictment will never get to trial.
Comey is loving every minute of this fiasco. It will simply give him material to write another book. He has published 2 books about his experiences at the FBI, and 4 novels, with one more soon to be published. They are all best sellers bringing in many millions of dollars.
Now he has good material for another book, and an opportunity to make a few more millions of dollars.
True
What about using 18 USC 373- solicitation to commit a federal crime? Comey was in the unique position of investigating active threats against sitting Presidents and knows of the daily threats to Trump. This was posted, I believe, after one of the attempts on Trumps’s life. And then Comey went on a talk show and laughed about his post with ac o median (I forget which show), meaning, although it was deleted, it was brought up and broadcast all over again, with his permission.
The problem with that is the ambiguity of the message. I guess 86 can be a slang expression for “kill”. In my world 86 was much more likely to mean remove. I worked in casinos and bars for nearly 30 years, and to 86 someone meant to remove them from the premises. Of course, the other problem with your suggestion is that solicitation requires more than just a statement, it requires specificity. It’s not solicitation to say “i wish someone would do X”. It requires asking a specific someone to do a specific thing.
Yes
Yesterday Prof. Turley wrote about a gerrymandered district that looked like a lobster. Today he is writing about a communication by Comey using sea shells. Our problem is that Democrats are spending too much time at the beach.
edwardmahl,
Thank you for the laugh!
AG Blanche made an interesting comment at the presser about Comey. He said that all the relevant information about the investigation, including witnesses, will come out in due time. The “witnesses” comment, rolled up in his run-on sentence, was what pricked my ears. As for Comey’s claim, that as the head of the #1 law enforcement agency he had no idea what 86 47 meant. But alas, Turley is likely right. But that’s not the point. The AG is doing to Comey what Comey did to hundreds of people: indict someone and let the proce$$ be the punishment.
Many do not want to recognize the huge difference between hateful rhetoric and threats of violence. And it is not about crossing the boundary of good taste, because that lies in the eye of the beholder.
Kirk Bangstad, the owner of northern Wisconsin’s Minocqua Brewing Company, promised “free beer, all day long” on the day of the president dies.
[Satire]
8605 (Brennan), 8607(Comey), 8608 (Wary), 8667 (Clinton), 86xx (THE LIST) ….
The case has no legs. But lawfare does. Given that it was the go to strategy of democrats, it is time they enjoyed a dose of their own medicine.
So let me get this straight. It was bad for democrats to do lawfare but is is fine for Republicans to do lawfare?
It’s even dumber than that. Comey isn’t even a Democrat, he’s just not MAGA.
I wholeheartedly agree with Turley on this. Despite his animosity towards Comey he did defend Comey’s message.
What I still find amusing about his defense is that he still ignores the reason why Trump has not been able to indict him. I mean it’s pretty obvious. Trump’s DOJ is so incompetent and dysfunctional that they cannot do the most basic due diligence in indicting someone.
Bondi got fired because she could not do what Trump wanted without evidence. Neither can Blanche an even more incompetent Trump administration official.
I guess it’s so embarrassing that Turley can’t bring himself to point it out because it IS the source of so many failed indictments.
“. . . Trump has not been able to indict” Comey.
Filed 4/28/26
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
UNITED STATES OF AMERICA
V. INDICTMENT
JAMES BRIEN COMEY JR.
Notice the word “indictment” in that Grand Jury doc.
You’re getting very careless at just making stuff up.
I meant convict. My mistake. Fun fact the first indictment was thrown out wasn’t it? If the DA was not legally appointed any indictment is invalid.
This one will too. Its reasoning is so flimsy it’s embarrassing.
There was nothing ‘random’ about the sea shells, and yes, Comey is a worm, but come on: as stunts like that have gone over the past number of years, it was pretty tame, and indeed protected speech.
Not thrilled with the indictment, it is precisely what they did to Trump, it will accomplish nothing but making his accusers look equally juvenile, and it smacks of desperation, i.e. we came up with this in lieu of other legitimate charges because it’s all we’ve got. What a waste of time.
I have to believe this is a holding charge and that like Brennan et al; a larger more damming indictment is in the works. There is substantial evidence of a seditious conspiracy by Obama, Clinton, Brennan, Comey et al; where they initiated a plan to subvert the 2016 election.
He will get his due as they all will if America is to move forward.
So you “have to believe this is a holding charge”.
No you don’t.
You don’t HAVE to believe anything at all, unless of course you are a non-thinking, brainwashed cult member who is required to believe the dogma of the MAGA cult in order to retain membership in that odious group of morons.
Perhaps you should try to think for yourself.
It is really not that hard.
Uh oh, Anonymous Big Mad!
If there aren’t legal grounds then none of them would have a care, right? You should welcome an investigation to get to the bottom of it, you know, clear their good names. S/
What’s the difference from someone threatening violence to the president online by speaking 86-47 rather than displaying the message as Comey did? I see no difference except one is implied while speaking the words is more direct. Both can be perceived as threats agains the president.
Another way to look at this indictment is that the procedure is the punishment. Comey will have to lawyer up at a significant cost. He will have to go to court. He will have to deal with negative attention through various media outlets. He will have to go through all of the things he and his cohort did to Trump and his lawyers and defenders. I am not saying this is good. It’s just a product of the democrats efforts to do the same when they had the power to inflict this kind of damage to those who lean right of center.
We are in a war with these people who will try to maintain power by any means necessary. I don’t particularly like this but it’s where happen to be at the moment.
I fully agree. When I heard this yesterday, I thought it was a Jimmy Kimmel joke. To be serious for a moment, the law under which he is charged requires the government to prove intent. That may be difficult but there may be hidden witnesses or statements Comey made after the fact. In any case, should the government show intent, it’s almost a given that Comey would have to take the stand on his own behalf to explain away the government’s proof. That’s when it becomes interesting. Because credibility is at the core of his testimony, he is fair game to be asked about lies he told Congress about not leaking or about signing FISA affidavits he knew or should have known to be false, etc. Crimes admitted on the stand can be prosecuted, including perjury. Still, I wish this case wasn’t brought and, instead, the government charged real crimes having real consequences. Comey has plenty of exposure to these.
We prosecute crimes because they are crimes performed by criminals against society. Not because it’s “winning”.
I want law and order not lefty lawlessness. I don’t care if one side comes out on top, i just want justice in our country.
Yet, the court is or should be a fair means to draw out the facts, especially of potentially serious implications. It forces both sides to muster up to support their positions, rather than to rely on biased media venues.
In my opinion Comey arranged the shells and posted it online. He knew what it meant. He knew it was protected speech. He also knew that the Trump administration would come after him thus he is a soldier of the left.
I think it was a mistake to file these charges.
What I would like to know is what is going on with the referral for lying to congress? He was indicted if I remember correctly, but a judge ruled the attorney was not properly appointed. Have they tried to go around this judge, appealed his decision, appointed a new attorney or what? Can the new Attorney general sign of on the charges and then does he have to be present for the trial?
To satisfy the nasty ANO, I am not a lawyer nor do I pretend to be one. You on the other hand, there is no question about.
Yes but making comey the left’s hero is ok. ALL their heros are criminals! Basket of deplorables if you will.
So pedo criminal trump is….?
Astounding display of ignorance
Where’s your evidence? An encoded email from a Zionist Mossad asset working the blackmail angles?
Please produce anything concrete that you have, E Jean Carroll and Blaisey Ford type accusations are not admissible as evidence.
So we can’t use evidence of him doing the thing you said he didnt do becasue it would prove that he did it? So… Get over it you voted for a pedo. so you support pedos. its who maga is. own it
Flight logs show Bill Clinton flew on sex offender’s jet much more than previously known
“Former President Bill Clinton was a much more frequent flyer on a registered sex offender’s infamous jet than previously reported, with flight logs showing the former president taking at least 26 trips aboard the “Lolita Express” — even apparently ditching his Secret Service detail for at least five of the flights, according to records obtained by FoxNews.com.”
https://www.foxnews.com/us/flight-logs-show-bill-clinton-flew-on-sex-offenders-jet-much-more-than-previously-known
“so you support pedos. its who Democrats are. own it”
Fixed it for you.
Own it.
awe see not everyone blindly votes for one party and then has to do a whataboutism. Got it you think trump and clinton are horrible pedos. me too!
I said no such thing. That is your Gen Z, failure to launch lazy thinking showing.
However, it does provide more actual evidence of possible wrong doing by Clinton. Much more so than anything you have provided as evidence against Trump.
Yet another display of stupidity with a seasoned dash of hypocrisy.
So you can understand, “a seasoned dash of hypocrisy “ is a metaphorical equivalent to youruse of some McDonald’s dipping sauce for your fries as you decry how bad it tastes.
America First and foremost!
Did either of the two women mentioned have any material evidence of sexual assault on either Trump or Kavanaugh? The answer is NO, so what you have was a couple of menopausal attention seekers with thirty year old recollections of what? He said She said, no evidence, no police reports, nothing but a smear campaign, one of which was launched by a TDS billionaire and another TDS patient George Conway. So if you have something you would like to share that is factual, please by all means otherwise GFY with a pinecone.
It is astounding that Comey couldn’t be charged with reckless abuse of power as a government official, illegal use of government resources, or something like it. This charge seems to be lame. Comey greatly damaged our trust of FBI.