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EXCERPT:
By now, it’s probably hard to find anyone in the United States with a political pulse who hasn’t heard about last week’s indictment of former FBI director James Comey. It asserts that Comey threatened “to take the life of, and to inflict bodily harm upon” Donald Trump by posting “a photograph on the internet social media site Instagram which depicted seashells arranged in a pattern making out ‘86 47.’”
Trump, the nation’s 47th president, contends that “86” is a “mob term for kill him.” More benignly, restaurant workers use it to refer to running out of an item or getting rid of a dish from a menu. There’s even a restaurant in Palm Desert, California, called Kitchen 86. As professor Mary Anne Franks remarked, the “86 47” shell arrangement is “a very ambiguous statement at best.”
True threats of violence aren’t constitutionally protected. The US Supreme Court defines them as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” The Court has explained that “[t]he ‘true’ in [true threats] distinguishes what is at issue from jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow.”
