Legal experts warn Comey ‘86 47’ indictment faces First Amendment hurdles

Legal questions are emerging over whether charges against former FBI Director James Comey would withstand a First Amendment challenge as he is indicted for a social media post allegedly tied to threats against President Donald Trump.

Comey faced charges Tuesday under 18 U.S.C. § 871, which criminalizes threats against the president, and 18 U.S.C. § 875(c), which covers interstate communications containing threats to harm others. 

George Washington University law professor Jonathan Turley told Fox News Digital just before the indictment was released that, if the case is based solely on the widely circulated image posted by Comey, it could face steep constitutional hurdles.  

"If Comey is charged for the shell picture, it would face a monumental challenge under the First Amendment," Turley said. "In my view, the image itself is clearly protected speech. Absent some other unknown facts or elements, it would be unlikely to survive a threshold constitutional challenge."

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Both statutes require prosecutors to prove not only that a statement constituted a "true threat," but that it was made knowingly and with intent, standards that legal analysts say could prove difficult to meet based on publicly available information. 

The indictment was filed Tuesday in the Eastern District of North Carolina, where Comey allegedly posted the image of seashells forming the numbers "86 47" during a beach walk. 

Others pushed back on the idea that the case raises significant First Amendment concerns, arguing that threats against a sitting president fall squarely outside protected speech.

"The third assassination attempt against President Trump on Saturday made this crystal clear: The Justice Department must prosecute those who threaten to assassinate the president," said Mike Davis, founder of the Article III Project. 

"No one has a First Amendment right to do this. No one is above the law, especially not a former director of the FBI who should know better. A jury of James Comey’s peers will decide his fate."

That argument comes amid heightened concerns about threats against Trump after a shooting at the White House Correspondents’ Dinner. A suspect has been charged with attempting to assassinate the president.

Prosecutors allege that the post would be interpreted by a "reasonable recipient familiar with the circumstances" as a serious expression of intent to harm the president, signaling they intend to rely heavily on context surrounding the message rather than explicit language alone.

The U.S. attorney for the Eastern District of North Carolina, W. Ellis Boyle, will oversee the case. Boyle was appointed in 2025 and sworn in by his father, a longtime federal judge in the district, after being selected for the role by then-Attorney General Pam Bondi.

The indictment marks the second time Comey has been charged during the second Trump administration. 

In 2025, he was indicted on charges of making false statements to Congress and obstructing a congressional proceeding tied to his testimony in the FBI’s Russia probe. That case was later dismissed after a federal judge ruled the prosecutor in the case had been unlawfully appointed.

Comey, who served as FBI director from 2013 to 2017, has long been a polarizing figure in U.S. politics, drawing criticism from both parties over his handling of the Clinton email investigation and the FBI’s probe into Russian interference in the 2016 election and potential links between Trump’s campaign and Moscow. 

He was fired by Trump in 2017 amid escalating tensions tied in part to the Russia investigation.

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The expected charges stem from a social media post in which Comey shared an image of seashells arranged to form the numbers "86 47," which some critics interpreted as a coded threat against Trump. The post drew swift backlash and prompted an investigation.

Comey later said he did not intend the image to be interpreted as a call for violence.

"I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message. I didn't realize some folks associate those numbers with violence. It never occurred to me but I oppose violence of any kind so I took the post down."

His explanation could complicate prosecutors’ efforts to establish intent, a key element required under both statutes.

Comey's attorney could not immediately be reached for comment.