True Threats and True Crimes – Those Memes You Post Might Be Crimes

Why It Matters

The case tests the line between protected political satire and criminal true‑threat liability, potentially reshaping First Amendment limits on online speech.

Key Takeaways

• Comey’s meme is indirect, symbolic, not targeted
• Counterman required recklessness, not mere perceived threat
• Elonis emphasized speaker’s intent over audience perception
• “86” slang is ambiguous, weakening threat claim
• Expanding true‑threat doctrine could chill political speech

Pulse Analysis

The Department of Justice announced an indictment against former FBI director James Comey for reposting an image of seashells arranged to read “86 47,” a phrase some interpret as a call to “get rid of the 47th President.” The charge frames the meme as a “true threat” under federal law, alleging that the symbolic code conveys an intent to harm the sitting president. Prosecutors rely on the premise that political memes can cross the line from protected speech into criminal conduct when they are perceived as violent. The case arrives amid heightened scrutiny of online political expression.

The defense anchors its argument in the Supreme Court’s recent true‑threat jurisprudence, particularly Elonis v. United States (2015) and Counterman v. Colorado (2023). Both decisions rejected convictions based solely on how a reasonable person interprets a statement; instead, they require proof that the speaker acted with at least recklessness—conscious disregard of a substantial risk that the communication would be taken as a threat. In Counterman, even a barrage of direct, frightening Facebook messages failed because the jury applied a negligence standard. By contrast, Comey’s meme is indirect, symbolic, and lacks evidence of intent, making the required mens rea difficult to establish.

If a court sustains the indictment, the true‑threat doctrine could expand to cover ambiguous political satire, setting a precedent that speech is judged more by audience perception than speaker intent. Such a shift would raise the risk of chilling effect on online commentary, especially in a polarized environment where slang and memes evolve rapidly. Legal scholars warn that broadening criminal liability for symbolic speech undermines the First Amendment’s protection of political hyperbole, a cornerstone of democratic discourse. The Comey case therefore serves as a bellwether for how far the judiciary will allow the government to police digital rhetoric.