David Ryan Authors Daily Journal Article Examining First Amendment Issues Raised by James Comey Indictment 

Munger, Tolles & Olson Of Counsel David Ryan authored an article for the Daily Journal, titled “The Flawed Comey Indictment and the High Bar for Prosecutors.”

In the article, David examines the First Amendment issues raised by the indictment of former FBI Director James B. Comey stemming from a social media post depicting seashells arranged as “86 47.” While public debate has focused on whether the post advocated violence against President Trump, David explains that the central legal question is narrower: whether the post constituted a “true threat” under federal law.

Drawing on Supreme Court and appellate precedent, including Counterman v. Colorado and United States v. Bagdasarian, David analyzes the statutes charged — 18 U.S.C. § 871 and 18 U.S.C. § 875(c) — which require prosecutors to prove that a defendant seriously expressed a personal intent to commit violence, rather than merely encouraging others to act. The article also examines why prosecutors did not pursue criminal solicitation charges, which carry distinct statutory and evidentiary requirements.

David concludes that although prosecutors have suggested the investigation uncovered broader evidence beyond the Instagram post itself, the indictment ultimately turns on whether the single charged communication crossed the constitutional line between protected political rhetoric and an unlawful threat.

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