True Threats and True Crimes – Those Memes You Post Might Be Crimes
The Department of Justice’s reported indictment of James Comey over a reposted image of seashells arranged to read “8647” forces a doctrinal collision that courts have struggled to reconcile: Where, precisely, does protected political expression end and c
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Identity Risk Intelligence vs Threat Intelligence: What’s the Difference?
The Department of Justice’s reported indictment of James Comey over a reposted image of seashells arranged to read “8647” forces a doctrinal collision that courts have struggled to reconcile: Where, precisely, does protected political expression end and criminal threat begin. The allegation is simple. Comey reposted an image of shells spelling out “86 47,” interpreted by some as shorthand for “get rid of the 47th President.” Assume, for analytical rigor, that the message conveys exactly that sentiment. The question is not whether the speech is crude or offensive. It is whether it is criminal.The answer turns on the Supreme Court’s “true threats” jurisprudence, particularly Elonis v. United States, 575 U.S. 723 (2015), and Counterman v. Colorado, 600 U.S. ___ (2023). Properly understood, those cases make the Comey prosecution constitutionally precarious.The facts of Counterman are critical, and they cut sharply against expansive threat prosecutions. Over a period of years, the defendant sent hundreds of unsolicited Facebook messages to a local musician. These messages were persistent, increasingly intrusive, and undeniably unsettling. They included statements such as:“Was that you in the white Jeep?”“You’re not being good for human relations. Die.”“Staying in cyber life is going to kill you.”“You have my attention.”The recipient testified that she was frightened, altered her behavior, and feared for her safety. Colorado prosecuted Counterman under a stalking statute based on these communications. What matters is not that the statements were benign—they were not. It is that the Supreme Court still vacated the conviction.The Court held that the First Amendment requires proof that the defendant acted with at least recklessness—defined as conscious disregard of a substantial risk that the communication would be perceived as threatening. Counterman, 600 U.S. ___ (slip op. at 10–12). The jury had been instructed on a negligence standard—whether a reasonable person would perceive the statements as threats. That was constitutionally insufficient. Critically, the Court did not hold that Counterman’s messages were, in fact, “true threats.” It held only that the wrong mens rea standard had been applied. The case was remanded.That distinction is not academic. It means that even repeated, targeted, disturbing communications—directed at a specific individual who experienced real fear—do not automatically qualify as criminal threats absent proof of the speaker’s subjective mental state.That holding builds directly on Elonis. In Elonis, the defendant posted violent rap-style lyrics on Facebook, including references to killing his estranged wife and harming law enforcement. The posts were graphic and specific. Yet the Court reversed his conviction because the jury had been instructed that it was enough that a reasonable person would perceive the statements as threats. Chief Justice Roberts made clear that criminal liability cannot rest on how speech is interpreted by others. It must rest on what the speaker intended or knew. Elonis, 575 U.S. at 737–38.Taken together, Elonis and Counterman reject a regime in which ambiguity is resolved against the speaker. They require proof—at least recklessness—that the speaker understood the threatening nature of the communication.Against that backdrop, the Comey case looks markedly different—and markedly weaker—than Counterman. In Counterman, the speech was:direct, not symbolic;repeated over years;targeted at a specific individual;perceived by that individual as threatening;and accompanied by behavioral changes reflecting fear.Even then, the conviction failed. By contrast, the Comey meme is:indirect and symbolic;not directed to any individual recipient;devoid of explicit language;dependent on slang interpretation (“86”);and lacking any evidence of intent to instill fear.If Counterman represents the outer boundary of constitutionally permissible threat prosecutions, the Comey case sits well outside it. To sustain a conviction, the government would need to show that Comey consciously disregarded a substantial risk that his repost would be interpreted as a serious expression of intent to commit violence. That is a difficult showing when the communication itself is ambiguous and culturally contingent.
The Linguistic Problem: “86” as Ambiguous Code
The prosecution’s theory hinges on the meaning of “86.” That term is notoriously unstable. Historically, it likely emerged from restaurant slang, meaning that an item was unavailable or that a patron should be removed. Over time, it evolved into a general expression meaning “get rid of.” Its use has rarely been tied inherently to violence. Indeed, in popular culture—most notably the television series Get Smart—“86” functioned as a harmless numerical designation (Agent 86, Maxwell Smart).That ambiguity matters doctrinally. Under Counterman, recklessness requires awareness of risk. But if the meaning of the term itself is context-dependent, the inference that the speaker consciously disregarded a substantial risk of communicating a violent threat becomes attenuated. Ambiguity cuts against mens rea.The Supreme Court has consistently resisted criminalizing political rhetoric, even when it is crude or suggestive of violence. In Watts v. United States, 394 U.S. 705 (1969), the Court held that a statement about shooting the President—far more explicit than anything here—was protected “political hyperbole.” The principle is not that such speech is admirable. It is that the First Amendment protects it unless it crosses a high threshold: a serious expression of intent to commit unlawful violence.The Comey meme does not clear that threshold. It is not a statement of intent. It is, at most, a symbolic expression of opposition.This case highlights a structural problem with modern speech analysis: context collapse. Online communications are interpreted simultaneously by multiple audiences, each applying different assumptions and cultural frameworks. What is intended as satire, protest, or commentary can be reframed as a threat when removed from its original context.The First Amendment draws a line between true threats and protected speech. That line is intentionally difficult to cross. Counterman confirms that even repeated, targeted, and disturbing communications do not suffice without proof of subjective culpability. Elonis confirms that interpretation alone is not enough. The Comey case asks courts to extend criminal liability further—to speech that is indirect, ambiguous, and untargeted. That extension would not merely apply existing doctrine. It would fundamentally alter it.The Constitution does not protect true threats. But it also does not permit the government to transform ambiguous political expression into criminal conduct based on interpretive inference.Counterman involved hundreds of direct, unwanted messages that caused real fear—and still did not sustain a conviction under a negligence standard. The Comey meme is qualitatively different: Less direct, less specific, less threatening.If that speech can be criminalized, the category of “true threats” expands beyond recognition.And once that happens, the distinction between true threats and true crimes collapses into a single, dangerous principle: That meaning—and liability—are determined not by what is said, but by how it is perceived.
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