Constitutional Law
May 21, 2026
The flawed Comey indictment and the high bar for prosecutors
The Comey indictment over the "86 47" post raises First Amendment concerns because the charges require proof that he personally threatened violence, not merely that his message could be interpreted as encouraging others to act.
Much of the news coverage of the recent indictment of former FBI Director James B. Comey has focused on whether Comey intended his picture of seashells arranged as "86 47" to be a call for violence against President Trump. Critics of the indictment have pointed to the common use of "86" in restaurants to refer to removing an item from the menu or kicking out an intoxicated customer. FBI Director Kash Patel and Acting Attorney General Todd Blanche, on the other hand, have said...
For only $95 a month (the price of 2 article purchases)
Receive unlimited article access and full access to our archives,
Daily Appellate Report, award winning columns, and our
Verdicts and Settlements.
Or
$895, but save $100 when you subscribe today… Just $795 for the first year!
Or access this article for $45
(Purchase provides 7-day access to this article. Printing, posting or downloading is not allowed.)
Already a subscriber?
Sign In