Former FBI Director James Comey is urging a federal judge to dismiss criminal charges stemming from an Instagram post showing seashells arranged as numbers, a case legal experts say is fundamentally flawed on First Amendment grounds. Comey was indicted on April 28, 2026, over a May 2025 post in which he photographed seashells on a beach forming the numbers “86 47,” which prosecutors claim threatened President Donald Trump’s life.
Comey has said the post was innocent. The number “86” is a restaurant industry term meaning to eject or refuse service, while “47” refers to Trump as the 47th president. He deleted the post shortly after publishing it, stating he “didn’t realize some folks associate those numbers with violence.”
Comey’s legal team plans to file multiple motions to dismiss the indictment, citing both selective and vindictive prosecution arguments as well as First Amendment protections. A trial is scheduled for October 21, 2026. The lead prosecutor in the case stepped down on May 29, 2026, as the case drew mounting criticism from legal scholars.
First Amendment Protections for Political Speech
Legal experts across the ideological spectrum say Comey’s seashells post falls squarely within protected speech. David Hudson, a professor at Belmont University College of Law, said the post was in “bad taste” but “protected speech” that “fell far short of being a true threat.” Hudson noted that “one of the most fundamental of all First Amendment principles is the ability of individuals to criticize government officials – even intemperately and harshly,” according to Reuters reporting on April 30, 2026.
The Supreme Court established a critical precedent in Watts v. United States (1969), ruling that the First Amendment does not protect “true threats” but does allow for “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” That case involved an 18-year-old who said at a protest that if drafted, “the first man I want to get in my sights is L.B.J.” The Court threw out his conviction, calling his remarks “political hyperbole.”
More recently, in Counterman v. Colorado (2023), the Supreme Court clarified that to prosecute someone for a true threat, the government must prove the defendant acted with recklessness—not merely that a reasonable person might interpret the statement as threatening. This standard raises a high bar for prosecutors seeking to criminalize political speech.
Clay Calvert, a First Amendment scholar at the American Enterprise Institute, told Reuters that “seashells on a beach would be an odd context to convey a threat of violence,” adding that the case “fits a pattern of retribution by the Trump administration against his perceived political enemies.” Thomas Berry, a constitutional lawyer at the Cato Institute, said Comey “will never be convicted,” but that the prosecution amounts to harassment, noting “the process is the punishment.”
Comey has faced two criminal cases from the Justice Department during Trump’s second administration. A previous case accusing him of lying to Congress about leaking to the media was dismissed by a federal judge in November 2025, who ruled that the interim prosecutor was unlawfully appointed. Acting Attorney General Todd Blanche, Trump’s former personal lawyer, has overseen the Justice Department’s renewed push to target perceived political enemies with criminal prosecution.
Sources
- Reuters — Expert legal analysis on First Amendment protections, prosecution flaws, and Watts v. United States precedent
- CNN — Indictment details, seashells arrangement as “86 47,” and prosecution timeline
- NBC News — Trial delay to October 21, 2026, and Comey’s planned motions to dismiss
- CBS News — Lead prosecutor departure from the case on May 29, 2026
- Justice Department — Official indictment and charges announced April 28, 2026
- MTSU Free Speech Center — Counterman v. Colorado (2023) Supreme Court ruling requiring recklessness standard for true threats
