Month: June 2026

In the case of United States v. James Brien Comey Jr., the U.S. president’s security is pitted against the bedrock right to free speech enjoyed by Americans.

Two federal charges have been lodged against former FBI Director James Comey and are based on his Instagram post that depicted seashells spelling out “86 47.”

Comey’s post was interpreted by the U.S. Department of Justice as a threat to harm President Donald Trump. The indictment, obtained by the DOJ, alleges Comey violated two federal laws: 18 U.S.C. § 871, which makes it a crime to “knowingly and willfully” threaten, kidnap or “inflict bodily injury upon the President of the United States,” and 18 U.S.C. § 875, which criminalizes “communication containing any threat to kidnap any person or any threat to injure the person of another.”

Comey’s argument against the charges is likely to be twofold: (1) He lacked the requisite intent that the prosecutor needs to prove his case, and (2) even if he had the intent required by the statute, his speech is protected by the First Amendment. U.S. District Judge Louise Flanagan set Oct. 21 as the Comey case trial date.

I’m a scholar of constitutional and criminal law as well as the First Amendment. The charges against Comey exist in a legal gray area that includes the First Amendment and a series of court decisions over five decades that have gone back and forth over what dangers constitute speech that can be punished.

Parsing the charges

In criminal law, there are generally two parts to most crimes – the criminal act and the criminal intent. The criminal act is referred to as the “actus reus.” The criminal intent is known as the “mens rea.”

Some crimes also require a particular result. For instance, murder requires a death of a person. A defendant can neither be charged with nor convicted of murder unless and until the victim dies. If the victim doesn’t die, then at most the defendant can be convicted of only attempted murder.

The criminal charges alleged in Comey’s case don’t require a result, however. The president need not be kidnapped or injured for someone to be charged with violating either of them.

But the prosecutor must still prove the criminal intent and the criminal act for both charges to stick in Comey’s case. In my view, the Justice Department will have a difficult time proving the mens rea against him.

Comey has consistently maintained that he didn’t know “86 47” implied violence against the president.

Meaning and purpose

Comey has stated he came across the shells that spelled out “86 47” while walking on a beach in North Carolina, took a picture and posted it on Instagram.

The term “86” is commonly used to mean “to throw out” or “to get rid of” in American slang. According to Merriam-Webster, the term “comes from 1930s soda-counter slang meaning that an item was sold out.”

Comey later removed the image from Instagram and posted a statement that read, “I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message. I didn’t realize some folks associate those numbers with violence. It never occurred to me but I oppose violence of any kind so I took the post down.”

Even though Comey has insisted that he thought it was a silly picture of shells arranged in a clever way to express a political viewpoint, the Trump administration argues that Comey not only knew the meaning of “86 47” but that he purposefully threatened the president.

What’s plausible?

The first crime charged in the indictment, 18 U.S.C. §871, requires the defendant to have “knowingly and willfully” threatened to kidnap or inflict bodily injury upon the president. This is the statute’s mens rea; the defendant must have known that he was threatening the president of the United States.

Comey’s statements suggest that he didn’t know the threatening nature of his Instagram post. Thus, he cannot be convicted of “knowingly” threatening the president if he didn’t know its meaning.

To convict Comey, the prosecutor must prove that he did, in fact, know the meaning of “86 47” when he posted it.

Comey’s career as a federal prosecutor and his tenure as the FBI director may work against him here. In my view, it’s more than plausible that Comey encountered the threatening version of the term “86” in his career. It’s also more than plausible that the term appears in documents, records and court filings that Comey has drafted and signed over his career, all of which could be used against him at trial.

But even if the Justice Department can prove Comey did, in fact, know the threatening nature of “86 47,” its case against him is not a slam dunk.

And that’s because of the First Amendment.

Testing what’s protected speech

As a constitutional law scholar, I’d expect Comey to argue that his Instagram post was protected speech.

Even though the laws charged in Comey’s case are generally valid and constitutional, criminal defendants can always argue that otherwise valid and constitutional laws are unconstitutional as applied to them and their particular case. Comey is likely to argue this in his defense, but it won’t be as straightforward as one might think.

The First Amendment is not absolute – not all speech and expression is protected by the Constitution.

In Chaplinsky v. New Hampshire from 1942, Justice Frank Murphy wrote that it’s “well understood that the right to free speech is not absolute at all times and under all circumstances.”

In 1969, the U.S. Supreme Court held in Watts v. United States that while “true threats” are not protected by the First Amendment, political hyperbole remains protected speech. The Supreme Court defines true threats as statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence against a particular individual or group of individuals, but the speaker need not actually intend to carry out the threat.

Watts v. United States involved a threat against the sitting president of the United States, Lyndon B. Johnson. In that case, Robert Watts expressed his strong opposition to the military draft at a public rally, saying, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” He was subsequently charged and convicted under the same statute, 18 U.S.C. § 871, used in Comey’s case.

The Supreme Court reversed the conviction, ultimately agreeing with Watts, who had maintained that his statement was “a kind of very crude offensive method of stating a political opposition to the President.”

As the court explained, quoting an earlier decision on press freedom, “For we must interpret the language Congress chose ‘against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’”

Since Watts, countless defendants have faced similar charges for threatening the president. Many have been convicted.

In the 1970s, Eugene Hart was convicted of threatening the president after his brother reported Hart’s plan to assassinate President Richard Nixon. An appellate court affirmed his conviction, concluding that Hart’s verbal threat coupled with his detailed assassination plan couldn’t have been “uttered in jest or in the nature of a hyperbole.”

In the 1980s, David Hoffman was convicted of threatening President Ronald Reagan when he mailed a letter to the White House stating, “Ronnie, Listen Chump! Resign or You’ll Get Your Brains Blown Out.” And in 1999, Donald Adams was convicted of threatening the president when he approached the White House gates telling Secret Service officers, “I want to kill the president.”

But in those cases and others, the defendants took concrete steps that demonstrated their sincerity and conscious awareness of the threatening nature of their speech. In my estimation, both are absent in Comey’s case.

Wayne Unger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation

In April 2026, Dr. Cerina Wanzer Fairfax was shot and killed by her husband while their divorce was pending.

She had done what she was supposed to do. She had initiated the legal process to leave Justin Fairfax, the former lieutenant governor of Virginia. It didn’t save her.

What happened to Wanzer Fairfax has a name: femicide.

Femicide is the intentional killing of women on the basis of gender. Women are most often killed by their partner, former partners or another person who believes they have a claim on their life. It happens in living rooms and driveways and parking lots. It happens during marriage, divorces, separations and in the weeks after a woman finally walks out the door.

As a scholar focused on the intersection of firearm violence and intimate partner homicide, I examine the policy and structural conditions that determine who is at risk and where prevention efforts are falling short.

Intimate partner homicide doesn’t affect all women equally. Black women have the nation’s highest rates of homicide by an intimate partner, according to data from the Centers for Disease Control and Prevention.

Intimate partner violence by the numbers

A 2024 study in The Lancet tracking homicide deaths from 1999 to 2020 found that Black women ages 25 to 44 are killed at nearly four times the rate of their white peers.

Spring 2026 saw three such cases make national headlines.

Just prior to Wanzer Fairfax’s death, Vice Mayor Nancy Metayer Bowen of Coral Springs, Florida, was shot to death – allegedy by her husband. Also in April, in Louisiana, Shaneiqua Pugh was shot by her husband, as was Christina Snow, the mother of three of the killer’s children. Pugh and Snow are both expected to survive. Eight children, however, were killed.

Three cases. Three states. One month. All, sadly, preventable.

Intimate partner homicide claims more than 1,800 lives in the United States every year. Nearly half of victims are killed by a current or former intimate male partner – not a stranger. These aren’t random acts of violence.

Separation is one of the most dangerous times in an abusive relationship. This is why we cannot see the death of Wanzer Fairfax and others like hers as one-off tragedies. They represent a decades-long pattern of intimate partner femicide in Black relationships – a pattern driven by firearm access coupled with inadequate policy enforcement.

Guns are what make intimate partner violence so deadly. About half of the roughly 1,800 annual intimate-partner femicide cases involved a gun. And in every region of the country, firearm homicide disproportionately kills Black women.

‘The partner loophole’

If the gun is what escalates the risk, it is also where policy has its best chance to intervene.

State law can explicitly restrict perpetrators of domestic violence from purchasing or possessing firearms through two types of civil protection orders: final domestic violence restraining orders and temporary restraining orders. Research demonstrates that states with strong gun restrictions along these lines have meaningfully lower rates of intimate partner homicide.

Generally speaking, though, these laws are not working as designed.

In most states, for example, only certain kinds of relationships qualify for protective orders to be issued against an abusive partner. The most common qualifying relationship is romantic partner or former partner. This characterization poses a problem called “the partner loophole.”

Federal gun-possession restrictions had a similar limitation for decades. If the relationship was a dating partnership, the prohibition against abusive partners obtaining a firearm did not apply. This came to be known as the “boyfriend loophole.”

In 2022, the bipartisan Safer Communities Act extended the gun prohibition to abusive dating partners. While the law now covers more kinds of relationships, it does not yet offer equal protection to Black women in those kinds of relationships.

Research using the National Violent Death Reporting System found that state-level enforcement of the policy was associated with reductions in intimate partner homicide among unmarried white victims, but not among victims of color.

Firearm-relinquishment laws are another weak spot I’ve identified in protecting Black women from intimate partner violence.

When a court issues a domestic violence protective order, federal law prohibits the restrained person from possessing a gun. But this prohibition does not automatically remove guns already in the person’s possession: A gun-relinquishment law must be invoked to compel them to surrender their weapons.

Some states, including California and Washington, have strong relinquishment provisions. They require judges to mandate surrender, set compliance deadlines and authorize law enforcement to recover unrelinquished weapons. These laws are associated with reductions in intimate partner homicide.

But other states give judges discretion. A 2025 review of civil protection order cases in South Carolina found that courts issued a firearm-protection order in only 32% of eligible cases in 2019. In North Carolina, a 2024 study examining state enforcement laws found that despite 93% of cases meeting the conditions for gun relinquishment, the policy was enforced in only 37% of cases.

As a result, researchers have found, firearms are discussed in fewer than 1 in 4 protective-order hearings nationwide, and courts order abusers to surrender their guns in 66% of applicable cases.

The result of unequal state policy enforcement is a prohibition that exists on paper and a gun that stays in the home.

The racial equity gap

The evidence is clear: When gun prohibition and relinquishment laws are fully enforced in abusive relationships, they can save lives.

Yet most states have gaps that limit how effective these policies are in practice. And that failure falls hardest on Black women.

Research shows that state firearm restriction laws with relinquishment provisions were associated with a 16% reduction in firearm intimate partner homicide for white victims. For Black victims, the reduction was not statistically significant.

This is especially concerning given that Black women experience the highest incidence of injury and death from intimate partner violence in the country.

The problem isn’t the laws themselves. It’s that the mechanisms of the law depend on a delivery system – courts, law enforcement, protective orders – that doesn’t work well for Black women.

After reporting domestic abuse, Black women are more likely to be incarcerated for defending themselves against their abuser, and they lose custody of their children more often once CPS becomes involved. A study examining preferences of intimate-partner violence survivors found that Black women report fear and distrust of police as a barrier to engaging with the legal system.

Because of these experiences, Black women understandably engage the criminal justice system less frequently. And laws protect only the people who can use them.

The media usually get Black femicide wrong

Another problem surrounding intimate partner homicide inflicts its harms after death.

When a woman is killed by her partner, media coverage often follows a familiar script: a name, a location, a grieving community. What it almost never includes is the word that I believe most accurately describes what happened: femicide.

Feminists in many countries, particularly in Latin America, have fought to enact femicide laws in response to pervasive violence against women. But the U.S. has no such laws and lags behind here.

Research has documented consistently that news coverage of intimate partner homicide depicts it as episodic rather than systemic, treating each killing as an isolated event rather than part of a preventable pattern.

When the victim is a Black woman, the issues compound.

Coverage of Black women’s deaths is less frequent, less sustained and less likely to generate the kind of public outrage that drives policy change. The focus in these stories, when they do run, tends to fall on the relationship or the victim’s personal history rather than on the systems that failed her.

This matters because media framing helps to determine what the public believes is fixable.

When journalists cover intimate partner homicide as a private tragedy, it becomes politically inert. When they contextualize it as the result of an unenforced gun law or a legal loophole, it becomes a policy failure – and policy failures have a policy remedy.

I believe the U.S. needs comprehensive standards for firearm restrictions in domestic violence cases, more robust enforcement and targeted efforts ensuring these protections reach all communities equitably.

For Black women, delay or failure may be the difference between life and death.

This story was produced in collaboration with Rewire News Group, an independent, nonprofit newsroom dedicated to covering reproductive health.

Sativa Banks does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation