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.”
“If the people James Comey targeted for prosecution used seashells to write what he wrote, or wrote 8644, he wouldn’t have hesitated to prosecute them for threatening to kill the president. James Comey is proof beyond a reasonable that equal protection under the law is a lie.”
Rod Blagojevich
@realBlagojevich
18 USC 871 threats to President does not need intent to carry out..
Mr. Comey’s seashells were converted to photo and published with comments.
Anyone have a prize copy of such?
Without accountability nothing can be expected to change. So many Demonrats have not only escaped accountability, they have gotten wealthy because of their misdeeds (the Clintons’ and Bidens’ traitorous pay-to-play schemes come to mind) or have otherwise been rewarded. As Rush used to say, in war and politics, the aggressor sets the rules. The courts have shown themselves quite unwilling, or unable, to nip Demonrat lawfare in the bud, leaving no recourse for the victims other than jumping into the same arena. With lawfare, actually winning is an unexpected side benefit.
Trump is an absolute master of media manipulation. He uses many techniques, some of which I characterize as “precision misspeaking”; Trump views it as infinitely better to be lambasted by unfriendly media than ignored. The media falls into the trap every single time, perhaps willingly because they don’t like to be ignored either, and Trump gets his message out. The Trump haters focus on the hyperbole, aggravating their TDS and making them appear increasingly unhinged with each new story, making it a win-win for Trump.
I believe the vast majority of politicians genuinely dislike people, but they hide it very well. I believe Trump genuinely likes people, but hides it well for strategic reasons, primary related to negotiation. And for Trump, everything is a negotiation.
Agreed. Every politician detests their pesky constituents, especially the ones who don’t contribute to their fundraising schemes. The problem is the “machine” doesn’t allow decent people to run for office.
This morning on a national news show, a 35 year veteran of the FBI that specialized in organized crime said in 35 years he has never heard the term “86” used by any criminal suspect. His last job he was a supervisor of a large group of FBI agents.
Not sure what movies and series Trump is watching, but apparently it’s not reality.
Trump’s supporters, some serving in Congress, have said very similar things in the past. Will those MAGA supporters be indicted and arrested?
“While some legal experts and former prosecutors argue it can mean to simply remove someone, it is widely recognized in criminal parlance as a violent command.”
I just received a tip from my friends inside law enforcement. I must admit, I’m a little surprised. As of 7 minutes ago, anyone caught saying that number, or writing it down, or even thinking about it for more than 3 seconds, will be deported immediately without a hearing just like the way King Trump removes all his subjects
There’s a lot of deflection on the part of the anon bots lately.
Free clue 86 is a very old slang. Comey knew this and it is apparent in his comments regarding his post.
The devil is in the details and he’s going to end up spending a lot on lawyers over this.
-G
Please see the Leaving Las Vegas bar scene as well as numerous gangster movies produced from Hollywood. The term is well used and in meaning to kill someone.
Post proof or it never happened..
Stitch
You can google away my friend, Reservoir Dogs, Pulp Fiction, Sopranos, Good Fellas… they all make references to 86 as removing, finalizing or “getting rid “ of someone. Matter of fact Sopranos made 86 episodes with Tony getting iced on the final 86th episode, but hey fagetaboutit!
Point being 86 seems to have various meanings to various people, one is to kill someone. Like Go Swimming with the Fishes, Snuff, Extinguish, Ice … slang words all meaning to kill or chill.
Let’s wait and see what Comey was saying about Trump in his captured communications that a Grand Jury was privy to that we aren’t. I think this is the least of Mr. Comey’s legal worries, it’s now a who flips first to save themselves, Comey or Brennan?! Kind of funny Brennans subpoena to appear got pulled back last week…
You forgot to mention SpongeBob SquarePants
LOL, one of my favorites!
Where’s the leak ma’am?!
Maybe the TV pundits should actually ask real restaurant owners and wait staff what “86” really means.
“86” usually means “out of inventory” on perishable food items. It’s usually not a preferred option, it’s products they like but have a hard time getting.
The restaurant manager is simply telling the wait-staff they ran out of product and inform customers they can no longer order avocados or mushrooms.
Good look Todd Blanche trying to spin that one;)
Hey gang, ^^^^^ notice the 2 posts and how the writer can’t use context. Bots. Turing
Any Republican political expert would admit that Trump almost certainly wouldn’t have won the electoral vote in 2016, without Comey investigating Hillary so close to the election. Trump wouldn’t be elected if not for Comey violating DOJ policies to benefit MAGA.
Hillary won 3 million more votes than Trump received. Comey threw the election to Trump in 2016.
I guess you are not educated enough, or smart enough, to understand the Electoral College and how it is designed to balance out, and protect voting from proletariate mob rule. Please move to a different country, where things might be easier to understand
I understand those 2 have been lovers since Putin agreed to a ménage à trois.
If Comey had been doing his job, Hillary Clinton would have been indicted for failing to properly handle classified documents, pay to play schemes and as far back as Travel Gate obstruction of justice. In other words she would have been indicted and in jail where hopefully she will soon find herself. The evidencury information of her criminality was released to the public on HRC at that time and was overwhelming. Her home spun illegal server, mishandling of top secret classified documents, her obstruction of justice by bleach bitting hard drives and smashing blackberries while under subpoena and her typical behavior was forefront in the public’s eyes. There was nothing that Comey did for Trump other than cover his own ass to Congress and the DOJ. The Clinton’s have obstructed justice their entire political careers, now they find themselves meritless in a Party of fools.
For most of the 20th and 21st Centuries, when criminals commit crimes inspired by the free speech of speakers. The burden for criminal liability is on the “listener” that commits the crime – not the speaker. Unless there is crystal clear incitement to violence.
If that is not the constitutional standard, Trump himself could be criminally liable as “speaker” during the January 6, 2021 insurrection and would be disqualified under Section 3 of the 14th Amendment (he couldn’t have become president) – if the burden is on the “speaker”.
Most important, on Comey’s instagram photo there are “90” likes. There are “90” listeners of free speech that may commit crimes.
Is the new standard of simply liking a social media post invite police and federal prosecutors to investigate the 90 people that liked Comey’s post? Or the over 100 million Americans that likes Trump’s posts?
There were some very nasty posts about Obama, Biden and Hillary. Internet records are kept for a minimum of 8 years. Could we go back and prosecute those that “liked” incitement to violence to Democrats? Those records still exist today.
“86” likely means the perfectly legal process of impeachment or could be referring to a lame duck president no longer able to run for re-election.
The bigger question is, if anyone “likes” a social media post, are all of us guilty and need to be investigated? That’s the dangerous precedent created if Trump’s frivolous prosecution is allowed to succeed.
“Internet records are kept for a minimum of 8 years.”
What is an ‘Internet record’ you TDS looney?
Comey is a modern-day Benedict Arnold
TDS is not illegal! It’s a ‘condition’!
A Democrat led U.S. Department of Justice could simply purchase your Facebook or Truth Social posts back to 2018 or earlier without any warrant from any judge.
If Comey is found guilty, that same precedent could be used to go after millions of MAGA supporters.
Trump’s Grievances Come First
Republicans hoping their party’s standard-bearer will stay focused on voters’ priorities heading into the November midterms caught no relief on Tuesday as the Trump administration announced charges against former FBI director James B. Comey and an aide to former chief medical adviser Anthony S. Fauci, as well as a review of Disney’s broadcast licenses.
The latest instances of turning government power against President Donald Trump’s critics and pursuing years-old grievances added to frustrations felt by Republicans who say the president isn’t doing enough to address the signature issues that won him a second term.
https://www.washingtonpost.com/politics/2026/04/29/trump-political-baggage-revenge-prosecutions/
…………………………………….
In the aftermath of the Saturday’s Correspondents Dinner, Trump defenders blamed liberal rhetoric for attempts on Trump’s life. Yet by Tuesday afternoon, Trump was back to form, promoting his personal grievances as a national priority.
No wonder Trump is hated so intensely! He’s the mean, petty buffoon from a thousand movies; the very antithesis of what normally passes as a classic hero.
Trump’s Approval: 34% And Dropping
The Reuters/Ipsos poll released Tuesday showed Trump’s approval dropped to 34 percent, 2 points below his approval in mid-April and in March. This drop is reflected in his disapproval rating, which increased to 64 percent from March’s 62 percent.
Trump still maintains support among most Republicans in the poll, at 71 percent, though 41 percent say they disapprove of his handling of the cost of living.
The president’s approval rating on his handling of the conflict with Iran matches his overall approval at 34 percent, down from 36 percent in mid-April and 38 percent in March.
https://thehill.com/homenews/administration/5853262-trump-approval-rating-reuters-ipsos-economy-iran/
……………………………
Unless Trump can get back into the 40’s, his usual terrain, congressional Republicans might grow spines.
HA HA HA. Did you forget that just this week/last seven days of postings, Harvard-Harris just gave him 42, InsiderAdvantage gave him a 44, Rasmussen gave him a 45, Morning Consult gave him 45, Quantum Insights gave him a 43, and and The Economist gave him a 40. Why did you pick the ONLY clown show showing a 37.
Tells us more about YOU than Trump.
Let me tell ya. Absolutely agree. As a devout supporter of the democrat process, I am reporting that Trump’s minions threw me in prison for giggling. No s…! I was watching a replay of him being shot and I giggled. Three unknown large men with hats, from Mexico, ran over to me, put me in cuffs and threw me in this dump.
Do we really have another 1000 days of living in Trumpistan?
Yep and deal with it.
Gotta hand it to you as someone obviously suffering from TDS you are handling it well. Maybe this blog is therapy for you.
No. You are not obligated to live in the US.
Have you considered relocating? Maybe Cuba, Gaza, Iran?
Not only that but DJT is your next vp.
Given your age David, only God knows the answer to that question…isn’t it pudding time now?
Fascinating how wok finds themselves innocent, pure white, without blemish like the freshly fallen snow, when Laken Riley’s blood bleeds out through the cracks in her skull. Can’t hear her? We know. You aren’t listening.
OT
Congress needs a bill disallowing foreign purchase of American land. ASAP
^^^^ farmland is tracked but can be hidden by LLCs. Urban areas are without tracking. To date no one has data on NYC and this is also hidden by LLCs. NYC chosen as an example and no data on non-citizen purchases. Columbia U. Owns the largest holding of land.
Turley did make a comment in an on air interview.
The image by itself could be a 1st amendment defense until you take into account additional evidence.
And this is where the Grand Jury comes in to play.
The DoJ had to present additional evidence that on the face, if assumed to be true would invalidate a 1st Amendment defense.
Also note that a 1st Amendment defense is an affirmative defense.
If you consider Comey’s history of animosity and attacking of Trump (while under Obama and beyond) the image becomes a threat and not just a harmless prank or 1st amendment protected speech.
This is something that a trial would resolve.
-G
I don’t think Virginia v. Black (2003) captures the kind of violence-nudging a militant activist intends when posting a death threat. The Black case decision applies where the threat is being expressed by the SAME person who intends to commit the murder.
That’s doesn’t begin to capture the skullduggery we’re dealing with in modern, internet-based doxxing and threatening. The one expressing the threat ISN’T planning to do the actual deed. They are expecting to encourage someone less methodical — someone more impulsive and aloof to consequences — to carry out the threat. The organizer-activist plans to hide behind 1A.
Where does the law stand on that type of conniving violent militancy? That can’t be protected by 1A. It’s a violation of Title 18 Section 875. There are limits to 1A, and 18 § 875 is one.
It’s quite serious. Guess it’s coming to a screeching halt, pbinca. What of the unfunny humorists? Watters, I’ll take him out?
Bazinga!
What we’re seeing are the same cold war tactics employed against the populace of the Eastern block in the 1960’s.
Never Forget – Release the Burn Bags Now
Documents Stuffed Into Burn-Bags At FBI HQ To Be Made Public: Kash Patel
Sensitive documents found in burn bags at FBI headquarters will all be made public, FBI Director Kash Patel said in a new interview with The Epoch Times.
“You’re going to see everything we found in that room in one way or another, be it through investigation, public trial, or disclosure to the Congress,” Patel told The Epoch Times’ Jan Jekielek in an exclusive interview, which is set to air on EpochTV at 5 p.m. ET on Nov. 29. (See Links below)
By: Tyler Durden ~ Nov 29, 2025
https://www.zerohedge.com/political/documents-stuffed-burn-bags-fbi-hq-be-made-public-kash-patel
Great. Comey is innocent. Commencing a conspiracy to 86, aka “get rid of,” the president when there is no election in sight does not mean the obvious.
So, comrades, may we acquit, nolle prosequi, vacate, dismiss, abrogate, and expunge all previous, current, and outstanding charges, federal, state, and local, against President Donald J. Trump, who is eminently innocent and totally not guilty?
Oh, and may we compensate Melania a couple of million for raiding her home and closet?