Questions are swirling following the launch of a federal investigation into former FBI Director James Comey over a now-deleted social media post of seashells arranged in the numbers “8647” on the beach. (“Eighty-six” is commonly understood to mean “get rid of.” President Trump is the 45th and 47th President of the United States.) Was Comey calling for the assassination of Trump? Or was he, as he has since stated, expressing a political opinion about Trump?
The genuine threat is not that a president’s life is in danger, but that the Trump administration is attempting to silence the speech of political adversaries.
If Comey’s post amounted to a siren song, beseeching others to kill the president, he can be punished for his speech. But should Comey’s post be viewed as political advocacy, which I argue it should, he is entitled to the full protection of the First Amendment. The genuine threat is not that a president’s life is in danger, but that the Trump administration is attempting to silence the speech of political adversaries. Even if it is unlikely that Comey faces anything more than a slap on the wrist for his post, the decision to open an investigation in and of itself should be worrisome. Comey has access to the media and resources to defend himself. Not everyone does. And the prospect of chilling political speech critical of government officials should concern all of us.
Comey isn’t the first former or current public official to refer to other politicians with the number 86. Last year, former Congressman Matt Gaetz, Trump’s short-lived pick for Attorney General, posted on social media, “We’ve now 86’d: McCarthy, McDaniel, McConnell. Better days are ahead for the Republican Party.” Given that Gaetz listed politicians who stepped down from leadership positions, it is clear from the context that Gaetz was referring to a political death, not a literal one. Gaetz was not investigated for threats against those politicians, nor should he have been.
Comey, famously, is not a fan of Trump. The FBI opened the investigation into possible collusion between the 2016 Trump campaign and the Russian government and Russian entities while Comey was head of that agency. When Trump later fired Comey, he alluded to the idea that Comey was axed, in part, because of the decision to open that investigation. Post-firing, Comey has argued that Trump is “morally unfit to be president.”
The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” But we have never actually read the first portion of the Bill of Rights to mean that. We allow plenty of laws that abridge and burden speech rights. Incitement, true threats, and fighting words are all examples of categories of speech that can be punished without violating the First Amendment.
So, does Comey’s post fall within any of these categories of speech? Probably not.
Incitement is defined as speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Mere abstract advocacy, even advocacy to break the law at some future time, is not enough to fall within this category. Because photos of shells on a beach cannot be seen as inciting immediate action, it will be hard to argue that Comey’s post falls in this unprotected category of speech.
Fighting words are face-to-face communications that tend to provoke the listener to respond violently and immediately. Here, Comey posted on social media, he did not yell in Trump’s face.
Finally, true threats are “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.” This is also a high bar. In 1969, the court concluded that when a man drafted to serve in the Vietnam War said, “[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J.,” that was not enough to fall within the category of true threats. More recently, in 2023, the high court clarified that to be prosecuted for “true threats,” law enforcement must show that the speaker had a subjective understanding that the statements were threatening. This seems to be the only plausible category of protected speech that Comey’s posting could fall within. But here again, Comey’s photo of shells, whose message is open to some interpretation, and who has said he intended no violence, falls short. The bona fide threat is the one posed by the Trump administration. The government is using the levers of power to try to go after, silence and scare political opponents. This is what the First Amendment was designed to guard against. If there’s one thing that the government would like to insulate itself from, it’s criticism. That’s exactly why political speech, and speech critical of the government, stands at the apex of First Amendment protection. We must be free to criticize not just government policies, but also those in charge of those policies. This includes, with perhaps the greatest urgency, the most visible member of our government, the president. Without these freedoms, we can and will slide into an authoritarian regime. That is why opening a federal investigation against Comey is particularly pernicious and should make us all concerned.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
