The First Amendment “true threats” doctrine was explained by the U.S. Supreme Court’s Counterman v. Colorado decision in 2023, of which I wrote in part at the time:
“A ruling last week held the First Amendment restricts laws that make it a crime to issue threats on the internet, saying that prosecutors must prove that a Colorado man who had sent disturbing messages to a singer-songwriter had acted recklessly in her causing emotional harm. “The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” Justice Elena Kagan wrote for the majority in the 7-to-2 decision. Justice Kagan pointed out that “true threats” like libel, incitement, obscenity and fighting words (but not “hate speech”), are indeed unprotected by the First Amendment, but she that the risk of chilling protected speech imposed an added burden on prosecutors. “The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs — all those may lead him to swallow words that are in fact not true threats,” she wrote.— would apply and the statute’s objective (recipient) element and subjective (defendant) element would need to be proved beyond a reasonable doubt.”
The facts in that case were stronger than the facts in the “beach speech” case, and the U.S. Court of Appeals for the Ninth Circuit had overturned a conviction way back in 2011 that involved far provocative language language. The defendant posted on a message board that Presidential candidate Barack Obama “will have a 50 cal in the head soon,” “shoot the nig,” and worse. The Court held,
Verdict: the Justice Department can’t possibly win this case because law and precedent is strongly against it and supports Comey. I also assume that the Justice Department lawyers know that, because, again, any first year law student could figure it out. So what’s going on here?
Easy: President Trump and his Justice Department is using the process as punishment, which is unethical. It knows the indictment is hopeless. It just wants to make Comey waste time and money, just like Trump had to do with all of his unethical indictments from partisan prosecutors and Biden’s DOJ who were trying to knock him out of the 2024 election. That was worse, in the sense that it was a deliberate abuse of the legal system to influence an election. But Trump’s seashell prosecution is far more frivolous and indefensible from a legal and constitutional standpoint. Moreover, unlike Biden’s DOJ’s unethical prosecutions, the news media and legal pundits won’t twist themselves into metaphorical pretzels to argue that this prosecution is anything other than what it is: unethical, and abuse of the justice system and prosecutorial power, and pure, unadulterated revenge by the President against a Deep State villain.
Yecchh.
Ethics Alarms 
Jack, this is 4D chess, now the right can point to the media’s treatment of this issue when the left does the usual projecting. Still unethical to use the law this way, but very human.
Or the DOJ was pressured to prosecute Comey and Comey’s protectors in the DOJ did this to make Trump look foolish and make sure Comey isn’t convicted of anything. If Trump has them drop the charges and refile charges for giving his friend classified documents to leak the press as a revenge policy if Comey were fired, that prosecution would look like a blatantly partisan targeting.
This is what Comey’s indictment smells like. I think you’ve hit on something.
OK, why can’t they just prosecute him for leaking those classified documents to the press?
Of all the things he has done, why prosecute him for THIS?
I agree with your overall conclusion, but I do not agree with your statement that folks don’t know what 86 means. Referring to killing someone as 86-ing them is not an uncommon thing to say. Mafia always said that in the junk mystery novels I read, usually saying that if they wanted to 86 someone, they’d have done it differently to the plucky detective who is accusing them on the red herring chase.
I learn a great deal of new concepts on this site, and often they are the things you claim everyone knows, where as I am usually very familiar with things that “almost no one” knows. I wonder if it is the difference in the white collar and blue collar cultures.
As one example of something you once declared that everyone knew, was that fried chicken and watermelon was a racist meal. I always thought of it as what most people splurged on when they wanted an expensive picnic, because most people really like it, but it’s a little spendy to do normally. Fried chicken and watermelon would describe the meals of most fanciest summer birthday parties in the park that I went to as a child. My husband used to make that a fun summer thing that we would do when we were dinks.
In contrast, the idea of 86-ing someone as killing them is well documented in my circles and in circles intersecting mine. I remember that throughout most of Trump’s first term, my Facebook feed was flooded with people talking about “8645”. Heck, there’s a joke about the death of our 75th president on March 9th. And thinking of that, has me singing that song for the next day and a half… I knew that from at least my bachelor days (19 years ago now) if not younger.
Meta AI (available on WhatsApp).
“86” means to get rid of, cancel, nix, or refuse service to someone/something. Common uses today: Restaurants/bars: “We’re 86 on the ribeye” = sold out. “86 that guy” = kick him out / ban him. General slang: “The plan got 86’d” = canceled. “86 the drama” = cut it out. Military/police code: Sometimes used as radio shorthand for “out of service” or “disregard.”
Where it came from — the main theories: Nobody knows 100%, but here are the strongest origin stories: Restaurant soda fountain codes – 1930s Most likely source.
Soda jerks used numerical shorthand so customers wouldn’t understand. Standard codes: 81 = glass of water 82 = glass of Coca-Cola 86 = item sold out / don’t serve this customer.
Chasen’s Restaurant in LA claimed they invented it, but it was widespread by the 1930s. Prohibition-era bar slang Chumley’s, a NYC speakeasy at 86 Bedford St, would tell unruly customers to “86 it” = go out the 86 Bedford door. Cops knew the bar, so if a raid came, the bartender yelled “86 everybody!” and patrons fled out that exit.
Navy/merchant marine Article 86 of the Uniform Code of Military Justice = AWOL/unauthorized absence. So “86” = get rid of someone who’s not supposed to be there.
Ships also used “86” to mean dump waste overboard. Empire State Building Depth of the East River is 86 feet at the site. If someone jumped, they’d be “86’d” = dead/gone.
Delmonico’s NYC – 1800s Their menu supposedly had 86 items. When item #86 sold out, waiters said “86 it.” No menu survives to prove this.
What linguists think: The Oxford English Dictionary dates first printed use to 1933 in restaurant context. The soda fountain/bar origin has the most documentation. By WWII it spread via military, then into general slang in the 1950s. Bottom line: Started as restaurant code for “we’re out” or “kick them out” in the 1930s, then went mainstream. Today it just means cancel/remove/refuse.
…and who wants to lay some money on the possibility that the AI algorithms were modified after the Comey indictment landed to make “86” emphasize “cancellation/kicking out” rather than “elimination/kill”?
Just saying. The conspiracy rabbit holes can be everywhere in the Matrix.
Morpheus was right.
I would say 90% certainty. I have always known that to ’86 someone’ was to kill them, but I never heard it in the way they are now claiming. I find it interesting that I cannot find the meaning of 86 in the Western Union telegraph code. This was published and used by all telegraph operators. Despite widespread usage and publication for decades, there is no record of it anywhere.
My guess is that it is a Western Union telegraph code.
https://kc5our.com/wordpress/wp-content/uploads/2017/11/Western-Union-92-codes.pdf
I can’t find what 86 means in the code (the meaning of that number is missing), but all 92 numbers had a meaning.
An unforced error? Seems hard to believe.
You’re all wrong; 86 was CONTROL Agent Maxwell Smart, whose partner was the (IMO) trés fetching Agent 99 (Barbra Feldman).
PWS
And for the first time I realize that Smart’s # was a joke. Boy, am I slow….like 60 years slow. Having that be his number was like the flyer in “Hot Shots!” whose handle was “Dead Meat.”
If it’s any comfort, I was ~10 minutes slower than you…
PWS
“The constitutional guarantees of free speech and free press do not permit [a law] to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
I’m gonna try and make this as plausible a case as I can just based on the Brandenburg test without looking at any other statutes or case law or focusing too hard on the language, so this analysis is really just looking at an overall potential framework that may be argued in court. We will see though.
If people in the internets use this number as a code for assassination, there is NO way Comey didn’t know that. It strains plausibility that a former director of the FBI would not know such a thing. It may be impossible to prove he knew such a thing, but the argument would be that his previous experience as FBI director and posting the seashells on a public forum where he knew everyone would read it suggests he was sending a specific message.
So, FBI director with great knowledge of codes posts a code that he knows will be interpreted by many as a threat.
2. “Likely to incite or produce such action.”
The FBI director would presumably be a source of moral authority for “the resistance.” He is a martyr of sorts in that world. Him using a code aimed at the crazies could incite others to violence. What would the unhinged liberal teacher who tried to kill Trump think if he saw Comey’s post?
So, a lot of the case could come to Comey’s position as FBI director and the moral authority that would carry for many members of the general population. It’s doubtful whether this case will survive the motion to dismiss though.
What is more plausible is just that Comey was being cheeky and somewhat cowardly but likely did not mean any violence at all and just meant something like voting or impeachment or maybe the 25th amendment.
The case does seem weak unless there’s some kind of secret facts we don’t know yet.
The only way I can see this proceed is if there was an unpublicized attack that occurred soon after that was linked to the FBI. Intelligence agencies have been known to use newspaper ads and other public postings as signals for people to initiate action.
While the current Comey charges appear “trumped up” (literally and figuratively), Comey broke the law by re-writing the FBI report to ‘soften’ the FBI agents’ recommendations that H. Clinton should be brought before a Grand Jury over many offenses, like having a private server in her home to conduct government business (why, I’m just a little ol’ gal who was a partner in a large law firm, first lady of Arkansas, first lady of the USA, congressional senator from NY – ! – and Sec’y of State of the USA but y’all, I didn’t think what I did was wrong). Comey also lied under oath about many things like the Steele Dossier – does anyone remember? The current charge against him is a “Nothing Burger” but like the case of OJ Simpson, maybe this will bring some comeuppance to Comey (who is a real low life) but I won’t hold my breath.
I’m reading a lot of approval of DOJ’s crazy indictment on the grounds that it will make Comey’s life miserable, and that’s a sufficient reason to do it. I’m sympathetic with the sentiment, but abuses of power are at worst dangerous, and at best slippery slopes. It tends to become a habit. But yes, Comey is scum, and deserves to be treated like the scum he is. But legally and ethically.
I would love to see miscreants like Comey, Brennan and Clapper see legal consequences for what they inflicted on the USA. But you have to do it the right way, by proving beyond reasonable doubt that the defendant is guilty of a crime.
Going after Comey for a seashell formation 8647 does not prove anything at all. Imagine that you are seated as a member of the jury, and the defense attorney shows you the following Wikipedia article about what the meaning of 86 is in America slang, are you not going to conclude that Comey might have meant something different with 8647 than killing for an assassination, and not for a removal from office?
https://en.wikipedia.org/wiki/86_(term)
Here is what Wikipedia says about the origin of the term 86:
There are many theories about its origin. An article in St Louis Magazine enumerates 18, and suggests that there are “about 86 theories”. Possible origins include:
My take is that is is unethical for the prosecution to bring a case that has zero chance of resulting in a conviction. The case against Comey is such a case as it screams “reasonable doubt”. This case looks like going after the man instead of after the crime, in the hope that there is anything that sticks.