First Amendment

Why the Courts Will 86 the Flagrantly Unconstitutional Charges Against James Comey

The case defies more than half a century of rulings on the “true threat” exception to the First Amendment.

Jacob Sullum | 5.5.2026 11:00 AM

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(Max Oden/Sipa USA/than Hyman/TNS/Newscom/James Comey/Instagram)

Is it plausible that James Comey, a former federal prosecutor, deputy attorney general, and FBI director, publicly threatened to murder President Donald Trump? No, it is not. But that is what W. Ellis Boyle, the U.S. attorney for the Eastern District of North Carolina, claims in an indictment filed on April 28.

That improbable allegation is based on a picture that Comey posted on Instagram in May 2025 while vacationing in North Carolina. Captioned "cool shell formation on my beach walk," the photograph showed seashells arranged in the sand to form the message "86 47." According to the indictment, those four digits constituted two federal felonies, each punishable by up to five years in prison. The charges include one count under 18 USC 871, which applies to someone who threatens to "take the life of" or "inflict bodily harm upon" the president, and one count under 18 USC 875(c), which criminalizes interstate communications that threaten to "injure the person of another."

Those charges are based on two assumptions about the meaning of the seashell photograph, only one of which is reasonable. The "47," Boyle says, refers to Trump, who in his current term is the 47th president of the United States. No one disputes that interpretation. But Boyle also claims that "86" means kill, so that combining it with "47" forms a statement that "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."

That interpretation is linguistically and legally controversial, to put it mildly. It is inconsistent with the typical slang usage of eighty-six, which originated in the mid-20th century as a reference to banning unwanted bar customers. It is also inconsistent with more than half a century of Supreme Court precedents elucidating what sorts of statements qualify as "true threats," one of the few recognized exceptions to the First Amendment. The former point reinforces the latter, since the definition of "true threats" depends on the speaker's state of mind and his audience's "reasonable" understanding of his message.

This is the second time that the Trump administration has tried to prosecute Comey, who occupies a prominent place on the president's list of enemies. "We can't delay any longer," Trump told Pam Bondi, then the attorney general, in a September 20 Truth Social post, publicly ordering her to prosecute Comey. "JUSTICE MUST BE SERVED, NOW!!!" Within five days, Trump got the indictment he demanded, which accused Comey of lying to Congress. But a federal judge dismissed that indictment two months later after concluding that the Trump loyalist who obtained it had been illegally appointed as an acting U.S. attorney.

Because Comey delivered the Senate testimony at the center of that case in September 2020, the deadline for filing charges based on what he said then has come and gone. By contrast, Comey posted his allegedly homicidal photo a year ago, so Boyle is well within the statute of limitations. But that is the only respect in which this case is stronger than the previous one, which hinged on a debatable interpretation of Comey's testimony. The new case, by contrast, hinges on an interpretation that is plainly absurd, which makes the attempt to punish Comey for his speech blatantly unconstitutional.

What Does 'Eighty-Six' Mean?

The verb eighty-six means to "reject" or "discard," according to Webster's New Universal Unabridged Dictionary. That definition derives from a more specific meaning that the dictionary also lists: to "refuse to serve" an "undesirable or unwelcome customer" at a "bar or restaurant." Webster's dates the latter meaning to the early 1960s, speculating that it may allude to a rhyme with nix.

The Oxford English Dictionary (OED) cites an earlier use of eighty-six in that sense. In 1942, the Washington, D.C., Times Herald explained that "'eighty-six' is the trade term for refusing to serve a patron any more liquor." A 1968 New York Times article likewise described "you're 86'd" as "a barroom phrase that means 'you're banned in here.'"

That meaning has been extended to other contexts. In the Mel Brooks/Buck Henry sitcom Get Smart, which ran from 1965 to 1970, the code name of the bumbling spy played by Don Adams was Agent 86, implying that he was manifestly unqualified for his job. In 1971, UPI's Hollywood correspondent referred to singers whose TV shows "have been eighty-sixed." In the 1972 movie The Candidate, a media adviser tells Robert Redford's character that he needs to "eighty-six the sideburns."

A decade later, a Miami Herald critic complained about a restaurant's limited selection of entrées: "On a menu with only 17 main dishes, we were told that nearly half had been 'eighty-sixed,' meaning unavailable." In 1990, the Binghamton Press and Sun-Bulletin reported that President George H.W. Bush had "eighty-sixed broccoli from his diet." A 2000 Los Angeles Times story about the "Y2K" problem reported that "Orange County's biggest restaurant chains" had "eighty-sixed New Year's........

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