Judge allows group to fly '86 47' flag in DC, rejecting claim it is a threat to Trump
It's the same phrase former FBI Director James Comey was indicted for posting.
Sharing the message "86 47" might have gotten former FBI Director James Comey indicted, but a federal judge is allowing a progressive group in Washington, D.C., to continue displaying a flag with the slang phrase after concluding that it is "difficult to fathom ... that a reasonable observer would view the flag as a true threat."
Though the lawsuit is unrelated to Comey's criminal case, the ruling is a setback for the Department of Justice as it seeks to prove that the phrase "86 47" could be interpreted as a threat to kill President Donald Trump.
The legal dispute stemmed from an ongoing demonstration in D.C. held by the progressive group Accountability NOW USA in order to, in the group's words, "call attention to the rise of fascism in the United States and demand the impeachment of President Trump." The Secret Service began an investigation into a volunteer after the group began displaying an "86 47" flag, despite telling officers that they did not wish violence on Trump.
"I never heard of it standing for anything other than Trump shouldn't be in office," the volunteer told two Secret Service agents, according to court filings. "I want Trump to live forever and rot in jail where he belongs."
After the group sued to protect their permit to protest, lawyers with the Department of Justice submitted a declaration from Secret Service Deputy Director Matthew Quinn to argue that the phrase is a "potential call for acts of violence directed at the President of the United States," citing the current threat environment.
"Use of the statement '86 47' and other variations will be perceived as a potential threat against the protectee and as one that could incite others to engage in an unwanted outcome against the protectee," Quinn wrote. "Such conduct will be investigated appropriately by the Secret Service to determine its potential to result in an act of violence and take appropriate protective action to mitigate any risk presented."
U.S. District Judge Randolph Moss, an Obama appointee, agreed with the group's interpretation of the phrase and granted a temporary restraining order Monday that bars the National Park Service from revoking the group's permit over the flag.
"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," Moss wrote.
Judge Moss noted that Merriam-Webster defines the phrase "86" -- which originated from 1930s soda-counter slang for an item that sold out -- as "to throw out," "to get rid of," or "to refuse service to." While Merriam-Webster noted that some have defined the phrase as "to kill," it does not include that in its definition "due to its relative recency and sparseness of use."
Judge Moss added that the context of the flag -- displayed outside a courthouse during an impeachment demonstration and lacking any violent imagery -- further supports the assertion that the flag is not a threat.
"In short, the record contains compelling evidence supporting Plaintiff's contention that it displayed the flag merely to urge President Trump's removal from office but contains no evidence supporting Defendants' contention that the flag represented a true threat on the life or physical well-being of the President of the United States," Moss wrote.
Monday's decision came five weeks after Comey was charged in North Carolina with threatening to kill Trump, the 47the president, in a 2025 Instagram post showing a photo of seashells on a beach arranged in the numbers "86 47." Following backlash over the post, Comey removed the photo from Instagram and said he was unaware that the post could be associated with violence.
Critics of Trump say the indictment is another effort by the administration to punish the president's perceived enemies after a judge last year threw out an indictment against Comey on unrelated charges.
At a press conference announcing the charges last month, acting Attorney General Todd Blanche argued that Comey's post crossed the line between First Amendment-protected speech and speech that warrants prosecution.
Comey's trial is scheduled to begin Oct. 21.