Director of National Intelligence Tulsi Gabbard has long positioned herself as a champion of free speech. But she just went on national television as a Trump administration official and suggested that one of the president’s political opponents should be prosecuted for speech that, reckless and contemptible as it may be, is protected by the First Amendment.
The controversy all started when former FBI Director James Comey posted an image on Instagram that read, “86 47,” with “86” being a slang term and “47” referring to President Donald Trump, the 47th president of the United States. According to Merriam-Webster, “86” originates in the food service industry and is “slang meaning ‘to throw out,’ ‘to get rid of,’ or ‘to refuse service to,’” but it is also sometimes used to mean “to kill.”
Naturally, this cryptic post from such a high-ranking former official set off alarm bells online. And given the multiple assassination attempts against Trump and an alarming degree of public support for political assassinations, it is reckless and reprehensible for any current or former public official to be so careless with his public speech. Comey has since deleted the post and claimed he did not know the phrase was associated with violence. But can Comey be prosecuted and imprisoned for it?
That’s what Gabbard suggested on Fox News, telling host Jesse Watters that Comey should “be held accountable and put behind bars” for what she called “a veiled call to action to murder the sitting president of the United States.”
Of course, everyone, including Trump officials, is free to criticize Comey for his post. But the Trump administration can’t prosecute Comey for what he shared on Instagram, at least not without trampling on free speech and violating the First Amendment.
First, it’s not even clear, let alone provable in a court of law, that Comey did intend to suggest violence. The phrase “86” is sometimes used to refer to a hit or taking someone out, yes, but it’s also routinely used to refer to removing someone. Just ask former Florida Rep. Matt Gaetz, who once tweeted of establishment politicians: “We’ve now 86’d: McCarthy, McDaniel, McConnell. Better days are ahead for the Republican Party.”
So, even if you do think Comey intended it as a veiled call for violence, there’s plenty of plausible deniability there because people do routinely use this expression in other ways. Gaetz isn’t the only one on the right side of the aisle to use it. In 2022, influencer Jack Posobiec, of “Pizzagate” infamy, similarly cryptically tweeted, “86 46.”
86 46
— Jack Poso
(@JackPosobiec) January 30, 2022
Does Gabbard also think Posobiec belongs behind bars?
The hypocrisy here is off the charts. Posobiec himself is now claiming, “The [former] director of the FBI is calling for left-wing assassins to target our president and kill him. Have no idea why he hasn’t been arrested yet.” Yes, seriously — Posobiec is arguing that Comey should be imprisoned for saying something he himself said about former President Joe Biden. Will he be surrendering himself to be Comey’s cellmate?
JAMES COMEY PUTS FIDELITY TO PROFITS BEFORE FIDELITY TO FBI AND COUNTRY
The truth is, calling for someone to be “86’d” is clearly First Amendment-protected speech. For goodness’ sake, you can buy merch on Amazon that says “86 47,” just like you could get “86 46” merch during Biden’s presidency.
We should all be calling on public officials to take the temperature down and dial back their heated rhetoric amid rising support for political violence. But prosecuting people who make reckless statements represents an unconstitutional escalation that makes a mockery of the Trump administration’s promises to protect free speech.
Brad Polumbo is an independent journalist and hosts the Brad vs Everyone podcast.