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In the past year, the coverage of former FBI Director James Comey seems to have returned to the level of a high school textbook. Last March, we were discussing how Comey called Beyoncé in a classified meeting and may have revealed a code word for the family’s encore performance. Now we’re back to discussing Comey’s seashell art on social media.
This last argument is now at the heart of Comey’s second impeachment. Last November, the court dismissed the first case of false statements after challenging the status of acting US attorney.
However, this case is brought to North Carolina – the beach where the offending shells were found. Comey will now create a new category of protected shell speech.
The problem with this case will be eligibility. The lawsuit is about a photo that Comey later removed showing “86 47” on sea shells. Comey has a strange history of drawing inspiration from shells. The message, however, took a deadly turn as many interpreted the message as calling for the assassination or “86-ing” of Trump.
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Comey insists he did not create the shell art and only sent it to his more than 1 million followers on X. He was simply a prisoner of his shell museums.
For more than a decade, I have been one of Comey’s most vocal and consistent critics. I have numerous columns criticizing his excesses and the damage he has done to our system.
Citizens are allowed to criticize and even wish the president ill.
For that reason, I’d rather crawl into one of Comey’s informative shells than write a column supporting him. Well, here we are. The truth is that I believe this case is unconstitutional without any new unknown facts.
In order to convict Comey, the Justice Department would have to show that his youthful image was a “real threat” under 18 USC § 871 and § 875 (c). It is not.
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The First Amendment is designed to protect unpopular speech. Popular speech rarely needs to be protected. It also protects against bad and hateful speech. It even protects lies as long as those lies are not used for the purpose of fraud or other criminal conspiracy.
In 1969, the Supreme Court declared direct threats protected under the First Amendment. In Watts v. United Statesan 18-year-old anti-war protester exclaimed, “If they ever make me carry a gun the first man I want to see in my eyes is LBJ”
While the Court ruled that “the law [criminalizing presidential threats] is consistent with the constitution on its face,” emphasized that “harmful must be distinguished from constitutionally protected speech.”
The Court ruled that the speech of wanting to kill the president is “a kind of insulting way of expressing political opposition to the President.” Saying the same thing in the shell is only removed from criminal speech.
Citizens are allowed to criticize and even wish the president ill. I wrote about what I call “the season of rage.” It’s not our first time. This nation was founded on anger. The Boston Tea Party was furious. In building this most perfect union, we have created the world’s greatest protection of free speech in history. Arguably the most American contribution to our Bill of Rights. Great Britain did not – and still does not – protect free speech as we do.
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It comes at a cost. Maybe Comey is that cost. However, he has the right to write down any hateful thoughts that come to him on his walks on the beach.
An actual threat requires “statements in which the speaker purports to speak of a serious manifestation of intent to commit an act of unlawful violence against a particular person or group of persons.” Virginia v. Black538 US 343, 359 (2003).
It is very true that the threat can be said. However, the ‘Truth’ in that word separates what is being said from jest, ‘exaggeration,’ or other statements that when taken in context do not indicate a real possibility that violence will follow.” Counterman v. Colorado, 600 US 66, 74 (2023).
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At the time, Comey quickly deleted the post and said it did not occur to him that it could be interpreted as violent.
In a subsequent post on Instagram, Comey said he thought the shells he saw on the beach were “a political message” and that he “didn’t see that some people were associating those numbers with violence.”
We will have to wait to see if the Administration has any “smoke” allegations that make Comey’s shell talk more dangerous as a deliberate and informed threat. I can’t imagine what that would be like beyond a group of sleeping footballers waiting for a shell signal.
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Despite such new evidence, it appears that Comey’s other posts make his rendition of Beyoncé seem relatively professional.
Ironically, the impeachment is unlikely to sustain a challenge, but it is likely to fill Comey’s narrative about the administration. It would undermine legal opposition to the legislation being implemented under Comey.
Comey’s shell talk should not be celebrated, but it should be defended.
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