Judge hands Comey and others roadmap to attack '8647' cases on the merits, sides with protesters who wished Trump would 'live forever and rot in jail'

A federal judge on Monday sided with protesters who were questioned by U.S. Secret Service officers for flying a flag with "8647" on it in Washington, D.C., finding the message in this instance constituted neither "an incitement to violence" nor a "true threat" against the life of President Donald Trump.

Noting that "86" can — but typically does not — mean "to kill," by Merriam-Webster's own description, U.S. District Judge Randolph Moss wrote that context is key.

And in this case, what an unnamed volunteer associated with the Accountability Now USA plaintiffs told two officers on May 12 about the intent behind the "8647" flag factored into a decision calling this demonstration "fully protected First Amendment activity."

Moss, a Barack Obama appointee, recounted how one officer said "we received a phone call because of the flag, in fact the 86 47 and what it can stand for."

"Uh-huh. I never heard of it standing for anything other than Trump shouldn't be in office," the volunteer answered. "I want Trump to live forever and rot in jail where he belongs."

"OK. That's it. That's all, all I needed to know," the officer said, before saying they "just want to make sure that your First Amendment rights are protected."

It wasn't all the government needed to know, however, because two weeks later, in the aftermath of the alleged assassination attempt against Trump at the White House Correspondents' Association dinner, the protesters did not stop displaying "8647" flags on National Park Service property near the National Mall and outside the courthouse.

This time, their permit to demonstrate was under threat.

"Defendants do not dispute that 'on May 27, the government ordered that the flag be taken down[,]'; that the volunteer on duty did so; or that the officer told the volunteer to 'please refrain from putting it back up' and warned that, '[i]f it comes back up[,] we'll be by here again, OK, and then it will be a violation of the permit,'" the judge wrote.

Calling it "difficult to fathom how the NPS (or the Secret Service) could have concluded that a reasonable observer would view the flag as a true threat," Moss rejected the government's attempt to cite assassination attempts to justify the censorship of political speech.

"Plaintiff represents that it did not intend to convey a threat of violence and that no reasonable observer would conclude otherwise, while Defendants posit that '86' can at times mean 'to kill,' although they concede that that is not the only meaning of the term," the judge explained. "Although the Court recognizes the importance and difficulty of the mission of the Secret Service, the First Amendment does not permit the government to censor political speech, which no reasonable observer would view, in context, as actually conveying a threat of violence, merely because the speaker uses a phrase that, in addition to other more common meanings, has been used to refer to an act of violence."

From there, Moss gave a thumbs-down to the government's attempt to argue that "can incite" and "likely to incite imminent lawless action" mean essentially the same thing under the Supreme Court precedent Brandenburg v. Ohio.

"Defendants do not even suggest that Plaintiff's flag comes close to satisfying that demanding standard. Indeed, the Secret Service knew about Plaintiff's flag, permitted Plaintiff to continue to display it for more than two weeks, which the agency undoubtedly would never have allowed if it believed that the flag was 'likely' to incite an imminent attack on the President or any imminent violence at all," the judge said, temporarily restraining the government from revoking a permit or ordering the removal of "8647" flags.

"Those are demanding doctrines, however, and for good reason—they protect core First Amendment values that are essential to liberty and democracy," he added.

Moss' ruling is significant because other courts could look to it as persuasive authority, and other civil plaintiffs — or criminal defendants — could use it to "86" their own cases.

For instance, James Comey's North Carolina-based "8647" seashell formation prosecution set deadlines for pretrial motions to be filed "no later than" July 28, with trial to come — for now — on Oct. 21.

Leaving aside vindictive and selective prosecution motions Comey's team will almost certainly file again, the Trump foe appears prepared to attack the case on the merits by arguing the deleted "8647" seashells post was not a "true threat."

The Comey case came up during a hearing, when Moss "recalled a news report" about Acting Attorney General Todd Blanche stating on "Meet the Press" that the DOJ wasn't going to bring indictments for any and all uses of "8647," but that the criminal case against the former FBI director was "different."

Moss' order also arrives as a man represented by the ACLU sues an investigator from the office of Indiana's Republican Attorney General Todd Rokita. Director of Investigations Kurt Spivey showed up at Lee Lawmaster's house last month to question him about his "internet activity" — namely, a series of posts of the number "86" by itself in comments on multiple public officials' Facebook pages.

According to the lawsuit, Spivey brought up the Comey indictment and asked Lawmaster if he was aware of it.

Lawmaster then replied that he thinks "86" simply means "get rid of."

Nonetheless, and unlike the Secret Service that initially questioned the Accountability Now USA plaintiffs, Spivey allegedly stated that Lawmaster "crossed the line" and warned him to "kind of tone down the political rhetoric a little bit."