The First Amendment protects even crude, offensive speech about presidents
In a coastal photograph of shells arranged to spell '86 47,' the law now confronts one of its oldest tensions: the boundary between speech that offends and speech that threatens. Former FBI Director James Comey faces criminal indictment over the image, yet constitutional precedent stretching back to the Vietnam era has long held that crude political expression — however distasteful — does not meet the threshold of a true threat. Law professor Jonathan Turley, no ally of Comey's, finds himself arguing that the First Amendment was built precisely for moments like this one, when the speech in question is least popular and the temptation to punish it is greatest.
- A beach photograph of shells spelling '86 47' has escalated into a federal criminal indictment against a former FBI director, raising alarms about where political expression ends and criminal threat begins.
- The Justice Department's second attempt to prosecute Comey — the first having collapsed on procedural grounds — signals a prosecutorial persistence that critics read as politically motivated.
- Supreme Court precedent from Watts v. United States sets a deliberately high bar: even an 18-year-old threatening a president in wartime was protected, and shells on a beach move further still from that line.
- Comey's own explanation — that he didn't author the arrangement and didn't grasp its violent connotations — remains uncontradicted by any publicly disclosed evidence of intent.
- The case is expected to fail constitutional scrutiny, yet its existence may paradoxically validate Comey's narrative of selective prosecution, blunting legitimate critiques of his own conduct at the FBI.
Jonathan Turley has spent years criticizing James Comey. Now he finds himself defending him.
The dispute centers on a photograph Comey posted to social media: shells arranged on a North Carolina beach to read '86 47.' To many, the numbers carried an unmistakable implication — '86' as slang for elimination, '47' as the sitting president. Comey deleted the post. The Justice Department brought criminal charges. It is his second indictment; the first was dismissed after a challenge to the acting U.S. attorney who filed it.
Turley's argument is straightforward and rooted in decades of constitutional law. The First Amendment protects offensive, even hateful political speech. In 1969, the Supreme Court ruled that an anti-war protester who said he wanted President Johnson in his rifle sights was not making a true threat — only a crude statement of political opposition. Shells on a beach, Turley observes, fall even further from the criminal threshold.
The legal standard requires proof that a statement conveys serious intent to commit unlawful violence. Comey said the arrangement hadn't struck him as violent at all, and no public evidence contradicts that account. Turley, with characteristic dry wit, notes he cannot envision what such evidence would look like — perhaps orders to a sleeper surfer hit squad awaiting shell-based signals.
The deeper irony is this: an indictment likely to collapse in court may nonetheless achieve what Comey himself has alleged — proof of a justice system turned toward political ends. In defending the man he has long opposed, Turley arrives at a conclusion the founders would have recognized. The shell speech should not be celebrated, he writes. But it must be protected.
Jonathan Turley, a law professor who has spent over a decade criticizing James Comey's conduct at the FBI, finds himself in an unlikely position: defending the former director's constitutional right to post a photograph of shells arranged on a beach.
The image in question showed the numbers "86 47" spelled out in shells along a North Carolina coastline. Comey posted it to his more than one million followers on social media, then deleted it. To many observers, the arrangement read as a coded message—"86" being restaurant slang for removing something, in this case a reference to removing the 47th president. The Justice Department brought criminal charges under federal statutes prohibiting threats against the president.
This is Comey's second indictment. A first was dismissed in November after a legal challenge to the status of the acting U.S. attorney who brought it. The new charges originate in North Carolina, where the beach and the shells were located. Turley argues the indictment fails on its face to meet the constitutional standard for what the law can actually punish.
The barrier is high, and deliberately so. The Supreme Court has long held that the First Amendment protects even crude, offensive, and hateful speech—including expressions of ill will toward a sitting president. In 1969, the Court in Watts v. United States considered the case of an 18-year-old anti-war protester who declared that if drafted, the first person he wanted in his rifle sights was President Lyndon Johnson. The Court ruled the statement protected, distinguishing between what constitutes a genuine threat and what amounts to "a very crude offensive method of stating political opposition." Spelling the same sentiment in shells, Turley observes, moves even further from criminal conduct.
The legal test is whether a statement conveys a serious expression of intent to commit unlawful violence against a particular person or group. The threat can be implied, but courts have emphasized that true threats must be distinguished from jokes, hyperbole, or statements that, in context, do not suggest a real possibility of violence. When Comey was asked about the post, he said it had not occurred to him that anyone would interpret it as violent. In a subsequent statement, he explained that he had assumed the shells were a political message left by someone else and did not realize the numbers carried violent associations for some people.
Turley, despite his long record of opposing Comey's actions as FBI director, argues that absent some undisclosed evidence proving Comey knowingly and willfully intended the post as a threat, the indictment is constitutionally infirm. He cannot imagine what such evidence would look like—perhaps, he suggests with dry humor, proof of a sleeper surfer hit squad awaiting shell signals. The First Amendment, he writes, is designed precisely to protect unpopular and offensive speech, because popular speech needs no protection. The nation was founded in rage; the Boston Tea Party was rage. In creating the world's strongest free speech protections, the country accepted a cost. Perhaps Comey is that cost.
Ironically, the indictment is unlikely to survive judicial scrutiny, yet it may accomplish exactly what Comey has claimed: evidence of selective prosecution and political weaponization of the justice system. In defending his right to post shells, Turley notes, the case may undermine legitimate criticisms of the lawfare conducted under Comey's own tenure at the FBI. The shell speech should not be celebrated, he concludes, but it should be protected.
Citas Notables
The First Amendment is designed to protect unpopular speech. Popular speech rarely needs protection.— Jonathan Turley
Comey said he assumed the shells were a political message and did not realize some folks associate those numbers with violence— Comey, in a subsequent Instagram post
La Conversación del Hearth Otra perspectiva de la historia
Why does Turley think this indictment is unconstitutional when the numbers could reasonably be read as a threat?
Because the Supreme Court has drawn a line between crude political expression—even hateful expression—and what counts as a genuine threat. The test requires proof of serious intent to commit violence. A deleted post about shells doesn't cross that line.
But couldn't someone argue that posting to a million followers amplifies the danger, makes it more than just personal speech?
Possibly, but the Court has never said that reach or audience size converts protected speech into unprotected speech. The content itself has to meet the true threat standard. Offensive political messaging, no matter how widely shared, is still protected.
Turley says he's been Comey's harshest critic. Why would he defend him now?
Because the principle matters more than the person. Turley is saying that if you care about the First Amendment, you have to defend it even for people you despise. That's the whole point of having strong free speech protections.
What's the real danger Turley sees in this indictment succeeding?
That it sets a precedent where political expression—even crude, offensive political expression—becomes prosecutable as a threat. That chills speech for everyone, not just Comey. And it validates the narrative that the government is using the justice system selectively.
Does Turley think Comey actually made the shells himself?
He doesn't really address that. He takes Comey at his word that he found them and posted the image. The question of who arranged them doesn't change the First Amendment analysis.