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.