The former FBI director’s lawyers argue that a disputed “86 47” seashell image is protected speech. Prosecutors say it crossed a criminal line, setting up a First Amendment fight with an October trial looming.
James Comey is asking a federal judge to dismiss a criminal case against him, arguing the prosecution is unconstitutional because the case centers on an Instagram post showing seashells in the shape of “86 47.” Prosecutors say the post was a threat against President Donald Trump; Comey’s lawyers say the May 2025 image was political expression, not a true threat. If the judge lets the case proceed, trial could begin in October.
The filing turns a strange-looking social media case into a serious First Amendment fight. According to NBC News and court materials described in its report, Comey’s defense says “dictionaries, context, precedent, and common sense” undercut the government’s theory.
The seashell post at issue
The criminal case grew out of an Instagram image showing seashells arranged as “86 47.” To prosecutors, that combination allegedly communicated a threat toward Trump, the 47th president. To Comey’s lawyers, it was at most political commentary using a phrase that can have nonviolent meanings.
The number “86” has long been used in restaurants and bars to mean something is unavailable, removed or out. It also appears in political slang, sometimes as a call to get rid of a candidate or officeholder through opposition. That ambiguity is now central to the defense.
Comey’s lawyers argue that a reasonable viewer, looking at the post in context, would not understand the shells as a serious expression of intent to harm the president. Even if someone read it aggressively, they say it would still fall into the category of political hyperbole protected by the First Amendment.
That distinction matters because offensive, angry or exaggerated political speech is not automatically criminal. The government must clear a higher bar when it charges someone over alleged threats, especially in a case involving criticism of a public official.
Comey calls it unconstitutional
Comey’s dismissal motion argues that forcing him to face trial would itself punish protected expression. NBC News reported that his team wrote that “the Supreme Court has rejected threats prosecutions based on speech far more directly threatening than Mr. Comey’s seashells post here.”
The defense is leaning on a familiar constitutional divide. The First Amendment does not protect true threats, but it does protect harsh political language, satire, advocacy and exaggerated statements that are not meant or reasonably understood as serious threats.
In recent years, the Supreme Court has emphasized that threat cases cannot rest only on how a statement sounds in isolation. Courts often look at context, audience, intent, wording and whether the speaker consciously disregarded a real risk that the statement would be understood as threatening.
Comey’s lawyers are also framing the case as viewpoint-based punishment. Their argument is that the government is treating opposition to Trump as criminal because of who said it and who it targeted, not because the post met the legal definition of a threat.
Prosecutors see a threat
The prosecution’s theory is simpler: “86 47,” displayed publicly by a prominent former FBI director, allegedly carried a threatening message about Trump. Prosecutors are expected to argue that coded or indirect language can still qualify as a threat if its meaning is clear enough in context.
That is the government’s strongest lane. Threats do not have to be explicit, and courts have allowed cases involving veiled language, symbols and context-dependent statements. A person cannot avoid liability simply by avoiding blunt words.
But the weakness for prosecutors is the same point: context cuts both ways. A seashell arrangement on Instagram is not a weapon, a plan or a direct statement of intent. The phrase also has widely known nonviolent meanings, which gives the defense room to argue that the government is stretching criminal law into political interpretation.
NBC News also reported that during separate litigation involving an “8647” flag flown by protesters on National Park Service land, a federal judge in Washington said it was “difficult to fathom how any reasonable observer” would view that flag as a true threat. The government reportedly conceded there could be circumstances where those numbers together would not threaten the president.
The politics around the case
Comey is not an ordinary defendant in the public imagination. As FBI director, he became a central figure in the 2016 election, the Hillary Clinton email investigation and the early Trump-era Russia investigation. Trump fired him in 2017, and the two men have remained politically linked ever since.
That history gives the case a charge beyond the legal filings. Comey has described the prosecution as part of Trump’s desire for revenge, according to NBC News. Prosecutors, for their part, have treated the post as serious enough to bring before a grand jury in the Eastern District of North Carolina, where Comey was indicted in April.
The defense is also pointing to political asymmetry. Comey’s lawyers cited Trump’s own public rhetoric, including past comments that critics said were violent or suggestive. Their point is not merely that politics is rough. It is that criminal enforcement should not depend on whether speech attacks the president or comes from one of his political enemies.
That argument is likely to appear again in a separate motion. NBC News reported that Comey’s team was expected to argue selective and vindictive prosecution, a claim that is difficult to prove but powerful if a court finds evidence that the government singled out a defendant for improper reasons.
What the judge must decide
The immediate question is whether the indictment can survive before trial. A judge does not need to decide whether Comey’s post was wise, tasteful or politically inflammatory. The key question is whether the facts alleged by prosecutors can legally support a criminal threat charge.
If the court agrees with Comey, the case could be dismissed before jurors ever hear it. That would send a signal that ambiguous anti-presidential political expression, even when provocative, cannot be converted into a criminal case without stronger evidence of a true threat.
If the court sides with prosecutors, the case could move toward an October trial. That would put jurors in the position of interpreting symbols, slang and political context, while lawyers argue over whether “86 47” was a threat, a slogan, a joke or protected opposition.
The Justice Department has until Aug. 18 to respond to Comey’s dismissal motions, according to NBC News. That response should show how prosecutors plan to bridge the gap between an ambiguous Instagram image and the constitutional standard for a criminal threat.
Why the ruling will matter
The case is unusual, but the underlying issue is not. Political speech online is often sarcastic, coded, hostile and designed to travel fast. Courts are increasingly being asked to separate real threats from ugly rhetoric in an environment where posts can be amplified, misread or weaponized within minutes.
A narrow ruling could focus only on Comey’s post and the specific indictment. A broader ruling could clarify how much context prosecutors must allege when a statement uses slang or symbolism rather than direct language.
Either way, the stakes are larger than one Instagram photo. If prosecutors can criminalize ambiguous political shorthand too easily, critics say public debate chills. If courts dismiss too readily, the government argues it may be harder to address genuine threats against public officials.
For now, the case sits at that uneasy boundary. The seashells made the prosecution sound odd. The constitutional question makes it consequential.
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