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Two weeks ago, the Department of Justice announced that a federal grand jury indicted former FBI Director James Comey on charges of making threats against former President Donald Trump. The indictment accuses Comey of violating federal laws, namely 18 U.S.C. § 871 and 18 U.S.C. § 875, after allegedly posting a photo that could be interpreted as a threat.
This unusual legal case pivots on the definition of “true threats,” a concept exempt from First Amendment protections. The First Amendment implications are central to the legal proceedings, as any prosecution must prove beyond a reasonable doubt that the language in question constitutes a “true threat.” The Supreme Court last addressed the issue in 2023 in Counterman v. Colorado, ruling that recklessness could suffice for establishing intent in potential threats.
The origins of the true threat doctrine can be traced back to the Supreme Court’s 1969 decision in Watts v. United States, which introduced the requirement that speech must be objectively and subjectively threatening to lose First Amendment protections. Subsequent cases like Virginia v. Black and Elonis v. United States have refined this standard.
James Comey’s case pivots on whether the government can prove Comey intended or knew that his actions could be interpreted as threatening. The crux is whether the sequence of seashells he posted on Instagram, which Trump interpreted as a coded threat, meets the legal markers of a true threat. Acting Attorney General Todd Blanche has hinted at evidence beyond the Instagram post, though he has yet to disclose it.
Ultimately, the outcome of this indictment against Comey could rest on practical assessments of Supreme Court precedent over the years. As details emerge, the fundamental question will remain consistent: Does the government hold sufficient evidence to convince the courts that Comey’s post was more than cryptic expression?
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