James Comey’s Indictment Raises Free Speech Questions
Over the past year, discussions around former FBI Director James Comey have taken on a rather absurd tone, resembling something out of a high school yearbook. Just last March, there was talk about how he seemed to channel Beyoncé during a secret meeting. Now, it seems we’re back to scrutinizing Comey’s artistic endeavors with beach shells on social media.
This shelly fiasco is now at the crux of Comey’s second criminal indictment. Following a legal challenge regarding the U.S. attorney’s status, the initial charge of false statements was tossed out. Now, fresh charges are being filed in North Carolina, where the beach in question is located. It feels like Comey might just create a new category of “protected shell speech.”
The legal concerns surrounding this case are quite complex. The indictment stems from an image Comey deleted, showing “86 47” written inside a seashell. Comey has a peculiar history with these shells, but the implication of this message raised eyebrows; many interpreted it as a call to “86” or eliminate Trump.
Comey insists he didn’t create the shell art but rather shared it on X—previously known as Twitter—to his million-plus followers. In his view, he simply found beauty in the shells.
For more than ten years, I’ve voiced my criticism of Comey’s actions and the fallout from them. He’s faced scrutiny, and I’d rather discuss the merits of what he stands for than write a piece defending him. Interestingly, despite my previous critiques, I now feel this indictment may be entirely unconstitutional without any new, compelling evidence.
To secure a conviction, the Justice Department would need to prove that his harmless post constituted a “true threat” under 18 U.S.C. 871 and 875(c). From my understanding, it doesn’t.
The First Amendment serves to protect even the most unpopular speech. Generally accepted discourse doesn’t often need safeguarding, and even hateful speech can fall under this umbrella. Lies are also protected unless they serve a fraudulent purpose.
In a landmark 1969 Supreme Court case, the court asserted that immediate threats were also shielded by the First Amendment. During the Watts vs. United States case, an anti-war protestor expressed a wish to harm then-President Lyndon B. Johnson, a statement the court deemed a crude form of political dissent, rather than a credible threat.
Americans have the right to criticize the president and express resentment. I’ve previously explored this in what I called the “Age of Anger.” Our nation has roots in dissent; the Boston Tea Party exemplifies this outrage. By establishing this union, we’ve laid the foundations for robust free speech laws—much stronger than in countries that don’t similarly protect citizens’ voices.
Of course, Comey’s rights might carry financial implications. He should certainly be able to express his less-than-glowing thoughts while meandering along the shoreline.
A legitimate threat requires a serious expression of intent to inflict unlawful violence on a specific individual or group. While threats can be implied, the context matters greatly. Statements taken out of context might feel threatening but don’t always convey a real likelihood of harm.
When Comey saw the shells, he quickly removed his post, claiming he had no intention of it being perceived as violent. Later on, he commented that he believed the shells bore political significance and was unaware of any violent associations tied to the numbers.
It raises the question: Does the administration have undisclosed evidence that might classify Comey’s shells as something more malign? It seems rather far-fetched—almost as if there were sleeper surfers ready to spring into action.
If no new evidence emerges, this would appear to be another instance where Comey’s odd artistic expressions gain attention without much substantiation.
Ironically, while this indictment may not hold up in court, the narrative forming around Comey and the administration is concerning. It could undermine valid legal challenges stemming from his time leading the FBI.
Comey’s shell art isn’t something to celebrate, but it absolutely warrants protection.
