Below is my column on Fox.com on the second indictment of former FBI director James Comey. Despite being one of Comey’s longest critics, the indictment raises troubling free speech issues. In the end, it must be the Constitution, not Comey, that drives the analysis and this indictment is unlikely to withstand constitutional scrutiny. If it did, it would allow the government to criminalize a huge swath of political speech in the United States.
Here is the column:
In the last year, coverage of former FBI Director James Comey appears to be reverting to the level of a high school yearbook. Last March, we were discussing how Comey channeled Beyoncé in a classified meeting and then may have revealed a code name in an encore performance for family. Now we are back to discussing Comey’s beach shell art on social media.
The latter controversy is now at the heart of a second criminal indictment of Comey. In November, a court dismissed the first indictment for false statements after a challenge to the status of the acting U.S. attorney.
However, this indictment is being brought in North Carolina, the location of the beach where the offending shells were found. Comey will now likely create a new category of protected shell speech.
The problem with this indictment will be the merits. The indictment concerns an image that was later removed by Comey showing “86 47” in shells on a beach. Comey has a rather odd history of drawing inspiration from shells. This message, however, had a lethal twist since many interpreted the message as essentially calling for the killing or “86-ing” of Trump.
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