Two weeks ago, the Department of Justice announced that a federal grand jury in New Bern, North Carolina, had indicted former FBI Director James Comey for making threats against President Donald Trump. The indictment charges Comey with violating two federal laws: 18 U.S.C. § 871, which makes it a crime to “knowingly and willfully … threat[en] to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States,” and 18 U.S.C. § 875, which makes it illegal to communicate “any threat to injure the person of another” across state lines. Specifically, the indictment alleges that Comey violated those federal laws when he posted a photo on Instagram in May 2025 of seashells on a North Carolina beach spelling out “86 47.” In a Truth Social post, Trump wrote that “‘86’ is a mob term for ‘kill him.’ They say 86 him! 86 47 means ‘kill President Trump.’” In line with Trump’s statements, the indictment alleges that the image could be reasonably interpreted, by someone “familiar with the circumstances,” as a threat to harm the president.
As many legal analysts have pointed out, this indictment faces one legal hurdle in particular: the First Amendment. To move forward, the government will need to show that Comey’s speech qualifies as a “true threat” – a category of speech that does not receive First Amendment protection. Which makes for an obvious explainer topic: what, exactly, makes something a true threat?
The precedent
Although the contours of the First Amendment have been debated since the nation’s founding, the modern true threat doctrine dates back to the Supreme Court’s 1969 decision in Watts v. United States. In 1966, during the Vietnam War, Robert Watts attended a rally near the Washington Monument that featured a group discussion on police brutality. Someone in the group “suggested that the young people present should get more education before expressing their views.” Watts responded that, “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”
For his comments about President Lyndon Johnson, Watts was subsequently charged and convicted of violating 18 U.S.C. § 871 – the statute that makes it illegal to threaten to harm the president. Watts challenged his conviction on First Amendment grounds.
The Supreme Court sided with Watts. In an unsigned opinion issued without holding oral arguments, the court first held the statute was constitutional because there is a “valid, even an overwhelming, interest in protecting the safety of [the president] and in allowing him to perform his duties without interference from threats of physical violence.” However, the justices also made clear that “a threat must be distinguished from what is constitutionally protected speech.” Therefore, any prosecution will require proving a so-called “true ‘threat.’”
The court concluded that Watts’ statement did not qualify as such. Instead, Watts’ comment about Johnson was “political hyperbole” and “a kind of very crude offensive method of stating a political opposition to the President.” When considering the context, the “expressly conditional nature of the statement,” and the fact that Watts and the others present apparently laughed after he made it, the court found Watts’ statement to be constitutionally protected.
The next major true threat case was not decided until 2003. In Virginia v. Black, the justices considered the constitutionality of a Virginia law that made it a crime for anyone to burn a cross in a public place with the intent to intimidate others. The court made clear that Virginia may, consistent with the First Amendment, outlaw such expression.
Justice Sandra Day O’Connor, writing for the majority of the court, explained that true threats are “those 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.” O’Connor clarified that a statement may still be a true threat even if the speaker did not “actually intend to carry out the threat.” Rather, so long as the speaker “directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death,” there is no First Amendment protection for the statement.
The issue of what constitutes a true threat was raised again in the 2015 case of Elonis v. United States, in which the court considered whether 18 U.S.C. § 875(c) (the other statute Comey was charged with violating, which makes it illegal to communicate “any threat to injure the person of another” across state lines) requires the government to prove the defendant personally intended to threaten someone else.
Anthony Elonis was charged and convicted of violating Section 875(c) based on various posts he had put on Facebook, which consisted of violent rap lyrics about harming his family, coworkers, and an FBI agent. Elonis sought to have his charges dismissed, arguing that the government had not alleged that he had actually intended to threaten anyone; according to him, his statements consisted of artistic musings and fantasies. The trial court denied this request, finding that it was enough to show that “Elonis ‘intentionally made the communication, not that he intended to make a threat.’” On appeal, the U.S. Court of Appeals for the 3rd Circuit agreed that Section 875(c) required “only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat.”
The Supreme Court reversed. Chief Justice John Roberts, writing for the majority, acknowledged that the text of the statute did not have any particular mental state (or mens rea) requirement. But Roberts explained that when a federal criminal statute is “silent on the required mental state,” the court will “read into the statute” the mental state “necessary to separate wrongful conduct from ‘otherwise innocent conduct.’” Roberts stated that “communicating something is not what makes the conduct ‘wrongful.’” Instead, the wrongful conduct “is the threatening nature of the communication” itself.
From this, Roberts declined to adopt a standard finding the presence of a true threat simply if a reasonable person would have felt threatened by the defendant’s statement. Rather, what Elonis thought when he made the statements – that is, his actual intent – “does matter.” The court clarified that “the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.”
The court decided its most recent true threat case, Counterman v. Colorado, in 2023. Somewhat similarly to Elonis, the question in Counterman was “whether the First Amendment [] requires proof that the defendant had some subjective understanding of the threatening nature of his statements.” The court held that, in such cases, the answer is yes: The government must prove “that the defendant had some understanding of his statements’ threatening character.” At the same time, the court made clear that a mental state of recklessness (that is, a conscious disregard of a substantial risk that others could understand one’s statements as threatening) was sufficient to meet this standard.
In her majority opinion, Justice Elena Kagan recognized that this standard may mean that some threats cannot be prosecuted. But that, she wrote, was the price to be paid for First Amendment protections. Kagan also addressed the dangers that a decision otherwise could have a significant “chilling effect,” leading people to self-censor their speech out of fear that it will fall on the wrong side of the line, or based on a “worry that the legal system will err, and count speech that is permissible as instead not.”
Where do things currently stand – and what about Comey?
A quick recap may be helpful. As Watts made clear, true threats of violence are not protected by the First Amendment. But the threshold of what constitutes a true threat, based on relatively recent Supreme Court case law, is fairly high. Today, a statement will only be considered a true threat when it constitutes a “serious expression” that the speaker means to “commit an act of unlawful violence.” This, in turn, demands that the speaker had “some subjective understanding of the threatening nature of his statements,” or “‘that others could regard his statements as’ threatening violence and ‘deliver[ed] them anyway.’”
Which brings us back to the Comey case. Right now, by way of evidence, we only have the “86 47” Instagram photo and the fact that Comey deleted the photo the same day he posted it, writing on social media that it “never occurred” to him that the numbers may be associated with violence. Given this, the government will have to show both that this was a serious expression of an intent to harm Trump and that Comey was aware that other people who saw the photo of the seashells spelling out “86 47” may have understood it to be a threat of violence against the president but he chose to post it anyway.
Comey will argue, among other things, that “86” is not typically understood as a threat to do violence – and, based on his erasure of the post itself – he certainly did not mean it as such. Perhaps recognizing the difficulties of the government’s case, Acting Attorney General Todd Blanche has responded that the indictment against Comey is based on more than just the shell photo, though he has yet to disclose such additional evidence.
One thing is certain, however: as this case further unfolds, the court’s precedent on true threats will form the backstop for the administration’s ability to prosecute the former FBI director.
