How Comey’s Legal Team Is Arguing That a Photo of the Ocean Is Protected Political Speech

On its face, the sentence seems almost ridiculous: a former FBI director is now defending himself in federal court over a picture of seashells. Not a classified document. Not an order for a wiretap. On a beach in North Carolina, seashells are arranged to read “86 47.”” And yet here we are, witnessing what began as an Instagram caption that said, “Cool shell formation on my beach walk.” This could turn out to be one of the decade’s most significant free speech cases.

In May 2025, James Comey shared the image. Hours later, he removed it, claiming he was unaware that some people would interpret the numbers as violent. That might be completely true, or at least plausible enough for a jury to have to consider it carefully. The combination of 47, the number of Trump’s presidency, and 86, slang for “to get rid of” or, more sinisterly, “to kill,” was instantly explosive. On Fox News, Trump stated bluntly that “a child knows what that meant.” The administration seems to have been anticipating this exact moment.

By all accounts, Comey’s legal team is not going unnoticed. Their main point is startlingly straightforward: even if the picture made a political statement, the First Amendment was created to safeguard political expression, including remarks that unnerve influential people. They are citing decades of Supreme Court precedent that states that political speech cannot be criminalized unless it poses a clear, direct, and credible threat—even if it is edgy, ambiguous, or provocative. They argue that a picture of ocean debris does not meet that standard.

The prosecution has a completely different perspective. Acting Attorney General Todd Blanche has maintained that this is about behavior, not politics. It’s important to note that Blanche was Trump’s personal defense attorney prior to joining the DOJ. He has maintained that records, eyewitnesses, and perhaps even Comey’s own devices can demonstrate Comey’s intent.

Blanche stated at a press conference that the case would be handled similarly to any other threat case. That claim was difficult for critics to accept. It’s still unclear if a jury will accept the claim that a beach photo represents a deliberate, knowing threat to the president’s life.

This case is genuinely complex and fascinating to observe because it lies on the precarious boundary between actionable incitement and symbolic political speech. For generations, courts have struggled with this issue. Even inflammatory rhetoric is protected unless it is intended to incite immediate lawless action, according to the 1969 ruling in Brandenburg v. Ohio. In 2023, Counterman v. Colorado established a subjective standard that requires prosecutors to demonstrate that the speaker was genuinely aware that their words might be interpreted as threatening. Comey’s team is strongly adhering to that standard, claiming he was unaware of this and removed the post as soon as he realized it.

As you watch this happen, it’s difficult to ignore how the larger context continues to permeate the space. In 2024, there were two attempts on Trump’s life. Civil liberties attorneys were taken aback by the administration’s quick response to the post, which included Secret Service interviews, digital and physical surveillance of Comey, and a speedy grand jury indictment. Every court document raises the question of whether the prosecution is motivated by a genuine concern for the president’s safety or by something more political.

When the trial takes place, it will probably force a very public discussion about what constitutes acceptable political speech in 2026. It turns out that the ocean has turned into a battlefield for constitutional disputes. That is either extremely strange or extremely serious. Perhaps it’s both.