Former FBI Director James Comey asked a federal judge on Monday to dismiss charges against him stemming from an Instagram post of seashells, arguing the image is protected political speech under the First Amendment and not a criminal threat to President Donald Trump.
Comey was indicted in April 2026 on two counts alleging he threatened to kill Trump by posting a May 2025 photograph of seashells arranged on a beach in the numbers “86 47.” The Justice Department argued that a reasonable person would interpret the image as a threat, but Comey’s legal team contends the post is political hyperbole.
In court filings, Comey’s attorneys wrote that the government “singles out Mr. Comey to prosecute one of the President’s most prominent critics for publishing another person’s statement of political opposition.” They argue the “86 47” slogan has long meant to “get rid of” or “eject” and has been featured on thousands of items sold online and regularly displayed at protests across the country, according to the Boston Herald.
The legal standard prosecutors must meet is exceptionally high. Under First Amendment doctrine, the government must prove a statement is a “true threat”—a serious expression of intent to commit unlawful violence—to remove it from constitutional protection. The Supreme Court has narrowed this definition repeatedly, most recently in 2023 in Counterman v. Colorado, to ensure political speech, jokes, and hyperbole remain protected, according to Freedom Forum analysis.
Comey’s attorneys further argued that “even if ’86 47′ could implausibly be read to suggest violence, a reasonable observer would still understand Mr. Comey’s post as mere political hyperbole, not a true threat.” They noted that Comey deleted the post shortly after making it, writing at the time: “I didn’t realize some folks associate those numbers with violence” and “I oppose violence of any kind so I took the post down.”
The prosecution marks the second indictment against Comey in less than a year. A federal judge in Virginia dismissed an earlier case in November 2025, ruling that the prosecutor who brought charges against Comey and New York Attorney General Letitia James was illegally appointed. That case alleged Comey lied to Congress and obstructed justice.
The seashells case has drawn scrutiny from legal experts and First Amendment advocates who argue the charges are fundamentally flawed. Acting Attorney General Todd Blanche has maintained that prosecutors will present evidence at trial proving Comey intended to threaten the president, though the indictment itself does not provide such evidence. Instead, it relies on what a “reasonable recipient” would understand the message to mean, according to court documents obtained by news outlets.
Trump has publicly stated that the “86 47” notation clearly meant assassination. In a Fox News interview last year, Trump said: “A child knows what that meant. If you’re the FBI director and you don’t know what that meant, that meant assassination. And it says it loud and clear,” according to the Boston Herald.
Comey is scheduled to stand trial in October 2026 if the judge does not grant the motion to dismiss. The case will test whether political criticism of a sitting president, expressed through an ambiguous image, crosses the line into criminal conduct—a question that will ultimately hinge on how narrowly or broadly courts interpret the First Amendment’s protection of political speech.
Sources
- Boston Herald — Comey’s motion to dismiss, his legal arguments citing First Amendment protections, the slogan’s widespread use in commerce and protests, and Trump’s statements about the meaning of “86 47”
- CNBC — Comey’s motion to dismiss filed on July 27, 2026, citing lack of “true threat”
- Freedom Forum — First Amendment doctrine on true threats, Supreme Court’s narrowing of the definition in Counterman v. Colorado (2023), and the high bar prosecutors must meet to prove a statement is unprotected speech
- Associated Press (via Boston Herald) — Details of Comey’s indictment, his deletion of the post, and the two-count charges alleging threats to the president and interstate transmission of threats
