Does the First Amendment Protect Dark Humor About the President’s Demise?

President Donald J. Trump holds a press briefing. Photo credit: Mason Lawrence / Shutterstock.com

The Justice Department has succeeded in persuading a grand jury to indict former FBI director James Comey for posting an image of seashells arranged to read “86 47” on his Instagram account.

The 47 part is a clear reference to Donald Trump, the 47th (and once 45th) president. According to the New Deal era columnist Walter Winchell, “86” was a slang term that originated with soda jerks to mean that a soda fountain was out of something and thus should be “86ed” from the menu. Over time, it has come to mean “get rid of” people as well – as in, “it’s time to 86 that rowdy customer.”

Merriam-Webster’s dictionary notes that the term has been used occasionally to mean “kill,” but “we do not enter this sense, due to its relative recency and sparseness of use.” Even if the word “kill” itself is ambiguous – as in “kill that story” or “kill that light.”

These linguistic nuances did not dissuade the Justice Department from charging Comey with two felony counts: one count of making threats to kill or harm the president and a second count of transmitting that threat publicly.

Two full days before a gunman stormed the White House correspondents’ dinner, Jimmy Kimmel recorded a joke about Melania Trump outliving her husband because she has that “expectant widow glow” – based solely on the fact that she is 24 years younger than her husband. It was not a joke about assassination given that Kimmel is a comedian, not a prophet, with no ability to know what would happen.

And yet Federal Communications Commission Chairman Brendan Carr is threatening the broadcast licenses of ABC affiliates for running Kimmel’s joke.

What is not fair is to twist language into criminal meanings and intent where none was intended. “I didn’t realize some folks associate those numbers with violence,” Comey said later. “It never occurred to me, but I oppose violence of any kind, so I took the post down.”

Actually, we’d say that no one in their right mind would associate Comey’s seashells with violence.

Moreover, even a joke that was actually about assassination – as long as it was not a direct incitement to violence – would likely be protected speech under the U.S. Supreme Court’s Brandenburg v. Ohio standard. That Court opinion protects even inflammatory speech so long as it does not call for imminent lawless action.

We agree with the observation that the coarsening of American discourse is dangerous. But using criminal law and heavy-handed regulation to persecute critics of an administration is a short path to a banana republic. And those who stretch the law should be wary of how their speech may one day be criminalized when the other party is in power.
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Our advice to this administration is to 86 this indictment and deep-six the regulatory threats.

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