In the last year, coverage of former FBI Director James Comey appears to be reverting to the level of a high school yearbook. Last March, we were discussing how Comey channeled Beyoncé in a classified meeting and then may have revealed a code name in an encore performance for family. Now we are back to discussing Comey’s beach shell art on social media.

The latter controversy is now at the heart of a second criminal indictment of Comey. In November, a court dismissed the first indictment for false statements after a challenge to the status of the acting U.S. attorney.

However, this indictment is being brought in North Carolina, the location of the beach where the offending shells were found. Comey will now likely create a new category of protected shell speech.

The problem with this indictment will be the merits. The indictment concerns an image that was later removed by Comey showing “86 47” in shells on a beach. Comey has a rather odd history of drawing inspiration from shells. This message, however, had a lethal twist since many interpreted the message as essentially calling for the killing or “86-ing” of Trump.

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Comey insists that he did not make the shell art and that he only posted it to his more than 1 million followers on X. He was merely the captive of his shell muses.

For over a decade, I have been one of Comey’s most vocal and consistent critics. I have dozens of columns criticizing his excesses and the damage that he has done to our system.

For that reason, I would prefer to crawl into one of Comey’s conversant shells than write a column supporting him. However, here we are. The fact is that I believe that this indictment is facially unconstitutional absent some unknown new facts.

To convict Comey, the Justice Department will have to show that his adolescent picture was a “true threat” under 18 U.S.C. § 871 and § 875(c). It is not.

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The First Amendment is designed to protect unpopular speech. Popular speech rarely needs protection. It also protects bad and hateful speech. It even protects lies so long as those lies are not used for the purpose of fraud or other criminal conspiracies.

In 1969, the Supreme Court declared a more direct threat protected under the First Amendment. In Watts v. United States, an 18-year-old anti-war protester exclaimed, “If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.”

While the court did rule that “the statute [criminalizing presidential threats] is constitutional on its face,” it emphasized that “what is a threat must be distinguished from what is constitutionally protected speech.”

The court ruled that the expression of wanting to kill a president is “a kind of very crude offensive method of stating a political opposition to the President.” Saying the same thing in shell is only further removed from criminal speech.

Citizens are allowed to denounce and even wish a president ill. I have written about what I called this “age of rage.” It is not our first. This nation was founded in rage. The Boston Tea Party was rage. In forming this more perfect union, we created the world’s greatest protection of free speech in history. It is 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. Perhaps Comey is that cost. However, he has a right to write out any hateful thoughts that come to him on his walks on the beach.

A true threat requires “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003).

It is certainly true that the threat can be implied. However, “The ‘true’ in that term distinguishes what is at issue from jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow.” Counterman v. Colorado, 600 U.S. 66, 74 (2023).

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At the time, Comey quickly deleted the post and said that it never occurred to him that it would be interpreted as being violent.

In a subsequent Instagram post, Comey said he assumed the shells that he saw on a beach walk were “a political message” and that he “did not realize some folks associate those numbers with violence.”

We will have to wait to see if the administration has a “smoking shell” allegation that makes Comey’s shell speech more menacing as a willful and knowing threat. I cannot imagine what that would be beyond a sleeper surfer hit squad waiting for a shell signal.

Absent such new evidence, it appears to be yet another Comey posting that makes his Beyoncé renditions seem professional in comparison.

Ironically, the indictment is unlikely to survive a challenge, but it is likely to fulfill Comey’s narrative about the administration. It will undermine the legitimate objections to the lawfare waged under Comey.

Comey’s shell speech should not be celebrated, but it should be protected.

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