James Comey Faces New Indictment With First Amendment Implications: What You Need to Know

On April 28, a federal grand jury indicted former FBI Director James Comey over a photo he posted on social media last year that prosecutors say was an illegal threat.

The photo, which Comey posted to Instagram in May 2025, depicts seashells on a beach arranged to spell out “86 47.” Comey, who said he did not arrange the shells but saw them on the beach, later deleted the post.

The number 86 is commonly used in the restaurant industry to indicate that an item is out of stock, removed or otherwise unavailable. Outside of restaurants, 86 is, at times, used as a verb meaning to get rid of or remove something. Donald Trump is America’s 47th president.

Federal prosecutors wrote in the indictment that the photo represented “a threat to take the life of, and to inflict bodily harm upon” Trump. Comey has said he is innocent. Before the charges were filed, he said he did not view the post as violent.

Comey is facing two criminal charges for threatening the life of the president and for transmitting a threat over state lines. If convicted, he faces a maximum of 10 years in federal prison.

The case raises questions about protected speech under the First Amendment. Here’s what you need to know.

What are both sides saying?

The federal government

Federal government officials, through the indictment and comments to the press, argue Comey’s photo was a threat to kill the president and that a “reasonable” person would see it that way.

Trump told reporters following the indictment that 86 was a “mob term for killing.”

Some legal experts have noted that Comey’s post appears to be protected political speech. Acting Attorney General Todd Blanche disagreed, telling reporters during a news conference announcing the charges that Comey had crossed the line into unprotected threats.

“It's not a very difficult line to look at," Blanche said. "You are not allowed to threaten the President of the United States of America. That's not my decision. That's Congress's decision, and a statute that they passed that we charge multiple times a year."

Blanche told reporters that the U.S. Department of Justice would present evidence at trial to prove that Comey intended to threaten the president.

James Comey

Comey has said the post was not intended as a threat. Shortly after posting the photo last year, he told MSNBC he deleted the post because he didn’t “want to be associated with violence of any kind” and viewed the post as a “silly picture of shells that I thought was a clever way to express a political viewpoint.”

Comey’s attorney, Patrick Fitzgerald, invoked the First Amendment in contending Comey’s innocence.

"We will contest these charges in the courtroom and look forward to vindicating Mr. Comey and the First Amendment," Fitzgerald said in a statement following the indictment.

What’s next?

Comey appeared in court for the first time on April 29.

During that hearing, Comey’s attorney said he plans to challenge the case by claiming a “vindictive and selective” prosecution, meaning he will seek to have the case dismissed by arguing the government is prosecuting Comey in retaliation for exercising his constitutional rights.

This is the second time in the past year that federal prosecutors have brought charges against Comey. A judge dismissed the first case against him, in which he was charged with making false statements and obstruction of justice.

A federal judge in North Carolina will decide whether to allow this new case to proceed to trial or dismiss the charges.

The judge will weigh arguments and evidence from both sides to determine whether the government has reached the very high bar necessary to prove that Comey’s post was a “true threat” against Trump and not protected political speech.