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Free Speech

Analyzing Indictment of James Comey for "86 47" Post

Eugene Volokh | 4.28.2026 5:39 PM

Now-deleted Comey post, copied from a CNN article on the indictment.

From today's indictment:

On or about May 15, 2025, in the Eastern District of North Carolina, the defendant, JAMES BRIEN COMEY JR, did knowingly and willfully make a threat to take the life of, and to inflict bodily harm upon, the President of the United States, in that he publicly posted a photograph on the internet social media site Instagram which depicted seashells arranged in a pattern making out "86 47", which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States.

In violation of Title 18, United States Code, Section 871(a).

A second count also alleges this violated the federal interstate threats statute, 18 U.S.C. § 875(c).

I think this prosecution is unjustified, and will get thrown out. Let me quickly analyze why.

Threats: To "eighty-six" someone is, to quote the Oxford English Dictionary, "to eject or debar (a person) from premises; to reject or abandon; (in earliest use) to refuse to serve (a customer)." (In context, "47" means Trump, who is now the 47th president.) Here are the examples the OED gives:

1942 'Eighty-six' is the trade term for refusing to serve a patron any more liquor… If the patron begins trying out airplane spins on innocent neighbors, for example, he is through. He is 'eighty-sixed'. Times Herald (Washington, D.C.) …

1959 'Eighty-sixed some square bankers from the temple'..eighty-sixed means evicted. Observer …

1963 I'll have you eighty-sixed out of this bar. J. Rechy, City of Night.

1968 On the evening of July 22, Mr. Mailer was filming a dream sequence at the house of Alfonso Ossorio in East Hampton, when Mr. Smith came into the house. 'He told me, "You're 86'd",' Mr. Smith recalled yesterday. This is a barroom phrase that means 'you're banned in here'. New York Times.

1980 Most of the program was devoted........

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