In the case of United States v. James Brien Comey Jr., the U.S. president’s security is pitted against the bedrock right to free speech enjoyed by Americans.
Two federal charges have been lodged against former FBI Director James Comey and are based on his Instagram post that depicted seashells spelling out “86 47.”
Comey’s post was interpreted by the U.S. Department of Justice as a threat to harm President Donald Trump. The indictment, obtained by the DOJ, alleges Comey violated two federal laws: 18 U.S.C. § 871, which makes it a crime to “knowingly and willfully” threaten, kidnap or “inflict bodily injury upon the President of the United States,” and 18 U.S.C. § 875, which criminalizes “communication containing any threat to kidnap any person or any threat to injure the person of another.”
Comey’s argument against the charges is likely to be twofold: (1) He lacked the requisite intent that the prosecutor needs to prove his case, and (2) even if he had the intent required by the statute, his speech is protected by the First Amendment. U.S. District Judge Louise Flanagan set Oct. 21 as the Comey case trial date.
I’m a scholar of constitutional and criminal law as well as the First Amendment. The charges against Comey exist in a legal gray area that includes the First Amendment and a series of court decisions over five decades that have gone back and forth over what dangers constitute speech that can be punished.
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Parsing the charges
In criminal law, there are generally two parts to most crimes – the criminal act and the criminal intent. The criminal act is referred to as the “actus reus.” The criminal intent is known as the “mens rea.”
Some crimes also require a particular result. For instance, murder requires a death of a person. A defendant can neither be charged with nor convicted of murder unless and until the victim dies. If the victim doesn’t die, then at most the defendant can be convicted of only attempted murder.
The criminal charges alleged in Comey’s case don’t require a result, however. The president need not be kidnapped or injured for someone to be charged with violating either of them.
But the prosecutor must still prove the criminal intent and the criminal act for both charges to stick in Comey’s case. In my view, the Justice Department will have a difficult time proving the mens rea against him.
Comey has consistently maintained that he didn’t know “86 47” implied violence against the president.
Meaning and purpose
Comey has stated he came across the shells that spelled out “86 47” while walking on a beach in North Carolina, took a picture and posted it on Instagram.
The term “86” is commonly used to mean “to throw out” or “to get rid of” in American slang. According to Merriam-Webster, the term “comes from 1930s soda-counter slang meaning that an item was sold out.”
Comey later removed the image from Instagram and posted a statement that read, “I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message. 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.”
Even though Comey has insisted that he thought it was a silly picture of shells arranged in a clever way to express a political viewpoint, the Trump administration argues that Comey not only knew the meaning of “86 47” but that he purposefully threatened the president.
What’s plausible?
The first crime charged in the indictment, 18 U.S.C. §871, requires the defendant to have “knowingly and willfully” threatened to kidnap or inflict bodily injury upon the president. This is the statute’s mens rea; the defendant must have known that he was threatening the president of the United States.
Comey’s statements suggest that he didn’t know the threatening nature of his Instagram post. Thus, he cannot be convicted of “knowingly” threatening the president if he didn’t know its meaning.
To convict Comey, the prosecutor must prove that he did, in fact, know the meaning of “86 47” when he posted it.
Comey’s career as a federal prosecutor and his tenure as the FBI director may work against him here. In my view, it’s more than plausible that Comey encountered the threatening version of the term “86” in his career. It’s also more than plausible that the term appears in documents, records and court filings that Comey has drafted and signed over his career, all of which could be used against him at trial.
But even if the Justice Department can prove Comey did, in fact, know the threatening nature of “86 47,” its case against him is not a slam dunk.
And that’s because of the First Amendment.
Testing what’s protected speech
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As a constitutional law scholar, I’d expect Comey to argue that his Instagram post was protected speech.
Even though the laws charged in Comey’s case are generally valid and constitutional, criminal defendants can always argue that otherwise valid and constitutional laws are unconstitutional as applied to them and their particular case. Comey is likely to argue this in his defense, but it won’t be as straightforward as one might think.
The First Amendment is not absolute – not all speech and expression is protected by the Constitution.
In Chaplinsky v. New Hampshire from 1942, Justice Frank Murphy wrote that it’s “well understood that the right to free speech is not absolute at all times and under all circumstances.”
In 1969, the U.S. Supreme Court held in Watts v. United States that while “true threats” are not protected by the First Amendment, political hyperbole remains protected speech. The Supreme Court defines true threats as statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence against a particular individual or group of individuals, but the speaker need not actually intend to carry out the threat.
Watts v. United States involved a threat against the sitting president of the United States, Lyndon B. Johnson. In that case, Robert Watts expressed his strong opposition to the military draft at a public rally, saying, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” He was subsequently charged and convicted under the same statute, 18 U.S.C. § 871, used in Comey’s case.
The Supreme Court reversed the conviction, ultimately agreeing with Watts, who had maintained that his statement was “a kind of very crude offensive method of stating a political opposition to the President.”
As the court explained, quoting an earlier decision on press freedom, “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 wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’”
Since Watts, countless defendants have faced similar charges for threatening the president. Many have been convicted.
In the 1970s, Eugene Hart was convicted of threatening the president after his brother reported Hart’s plan to assassinate President Richard Nixon. An appellate court affirmed his conviction, concluding that Hart’s verbal threat coupled with his detailed assassination plan couldn’t have been “uttered in jest or in the nature of a hyperbole.”
In the 1980s, David Hoffman was convicted of threatening President Ronald Reagan when he mailed a letter to the White House stating, “Ronnie, Listen Chump! Resign or You’ll Get Your Brains Blown Out.” And in 1999, Donald Adams was convicted of threatening the president when he approached the White House gates telling Secret Service officers, “I want to kill the president.”
But in those cases and others, the defendants took concrete steps that demonstrated their sincerity and conscious awareness of the threatening nature of their speech. In my estimation, both are absent in Comey’s case.
