On Tuesday April 28, the United States Department of Justice announced that it secured an indictment against former FBI Director James Comey, alleging that Comey had violated two provisions of the United States Code. The first count cited 18 U.S.C. §871, which prohibits threats against the president. The second cited 18 U.S.C. §875(c), which prohibits the interstate transmission of a threat to kidnap or injure another person. And what was the impetus for this indictment? An Instagram post featuring a photo of seashells arranged on a North Carolina beach to spell out “8647.”
I’m not kidding. That’s the “threat.” I was skeptical about this indictment from the moment I heard about it. Aside from the whole vindictive prosecution aspect, I find it hard to believe a court will take it seriously. More about this in a minute, but the First Amendment would certainly bar this claim.
I am even more skeptical about the case based on a recent decision in an unrelated case from the Federal District Court for the District of Columbia. In that case, the court granted a temporary restraining order to an organization called Accountability Now USA, blocking the Secretary of the Interior and the Superintendent of the National Mall and Memorial Parks from taking enforcement action against the organization for displaying a flag bearing the legend “8647.” The Court in the Comey case will likely adopt the reasoning in the Accountability Now case.
Accountability NOW is an unincorporated association that holds a permit from the National Parks Service to conduct a demonstration on Constitution Avenue in Washington, D.C. Volunteers maintain the demonstration 24 hours a day, seven days a week where, according to Accountability NOW, “they engage in face-to-face conversations with members of the public to call attention to the rise of fascism in the United States and [to] demand the impeachment of President Trump.”
On Feb. 24, in response to reporting that the Justice Department was withholding more than 50 pages of FBI interviews with a woman who had accused Donald Trump of sexually abusing her when she was a minor, Accountability NOW began to display two new signs at the demonstration. One sign read: “TRUMP RAPED LITTLE GIRLS.” The other read: “KIDS, IF YOUR PARENTS ARE MAGA, THEY LOVE CHILD RAPISTS.”
On April 14, an NPS agent emailed Accountability Now relaying the following message: “Based on the photographic evidence from earlier today, [Accountability NOW] is displaying unprotected obscenity in signs or media. This is not protected by the First Amendment and is therefore prohibited and a violation of law.” That same day, Accountability NOW responded, “seeking clarification of NPS’s position and asking, in particular, why NPS believes the signs meet the legal definition of obscenity and what would happen if the signs remain on display.” The NPS responded as follows on April 15, 2026:
“To clarify, the material displayed under your permit has been evaluated under all appropriate standards and tests and is deemed unprotected obscenity, which the Court has established is not protected by the First Amendment. This determination is supported by federal law, which prohibits obscene material on federal property … If a permittee chooses not to comply with a lawful direction to cease prohibited conduct, the National Park Service may take further steps as appropriate to ensure compliance.”
Let’s be clear. The signs are in no way “obscene” by any fair reading of the law. It’s no surprise that NPS didn’t cite any legal authority to support its position. None exists. Although Accountability NOW stopped displaying the signs, it filed a lawsuit, asking the court to prevent the defendants from taking enforcement action based on the signs.
But the NPS was just getting started. In addition to the two signs discussed above, Accountability NOW began displaying a red, white, and blue flag, which it purchased from Amazon, that read “8647.” On May 27, four cars of U.S. Park Police officers pulled up to Accountability NOW’s demonstration site at around 5 a.m. and an officer read the volunteer on duty the following from a clipboard: “Right now, we’re looking at the 8647 as a threat against the President. Can I ask you to take it down please? The sign here?” The officer also told the volunteer to “please refrain from putting it back up” and warned that, “[i]f it comes back up, we’ll be by here again, OK, and then it will be a violation of the permit.”
Later that day, Accountability NOW amended its lawsuit, seeking a temporary restraining order to prevent the defendants from taking enforcement action based on the display of the flag. The court granted it.
In the court’s view, “the relevant context makes clear that no reasonable observer could have viewed [the] display of the flag as a threat to the President’s life or physical safety.” As the court noted, “the flag itself contains no symbols of violence; it is red, white, and blue, and is simply adorned with white stars. It contains no knives, skulls, nooses, or other threatening symbols. Even more to the point, the flag was displayed outside the courthouse, as part of an ongoing demonstration seeking President Trump’s impeachment and removal from office . . . Under these circumstances, it is difficult to fathom how the NPS (or the Secret Service) could have concluded that a reasonable observer would view the flag as a true threat. The term ’86’ is used far more often to mean ‘throw out’ than ‘kill,’ and it appeared at a demonstration that was focused, of all things, on the constitutional impeachment and ‘removal’ of the President.”
The court ultimately concluded: “[a]n agency’s mere say so – a conclusory assertion that it ‘regards’ that flag ‘as a potential call for acts of violence,’ without consideration of specific context and without sound reason to conclude that a reasonable person would, in fact, understand that message as a true threat − is not close to enough. Under these circumstances, ‘the public’s interest in protecting First Amendment rights and [the] ability to exercise those rights outweigh any interest in the continued enforcement.’”
This reasoning applies in spades to the Comey case. And no reasonable attorney would argue otherwise. But reasonable attorneys apparently are in short supply in this Justice Department.
Jack Greiner is a Cincinnati attorney. He represents Enquirer Media in First Amendment and media issues. He can be reached at greinerjack46@gmail.com.
This article originally appeared on Cincinnati Enquirer: Trump sues seashells by the seashore | Strictly Legal
Reporting by Jack Greiner, Special to The Enquirer / Cincinnati Enquirer
USA TODAY Network via Reuters Connect
By Jack Greiner, Special to The Enquirer | USA TODAY Network
