A federal judge on Monday ruled that protesters criticizing President Donald Trump in an ongoing demonstration near the National Mall in Washington, D.C., cannot be forced to take down a flag reading "86 47," concluding there is no indication it should be taken as a threat to the 47th president's life.
U.S. District Court Judge Randolph D. Moss wrote in his 21-page opinion that the flag and its message constitute protected speech on behalf of Accountability Now USA, a group that has been legally protesting near the Capitol on a 24-hour basis for the past six months. He also granted the group a two-week emergency order restraining Secretary of the Interior Doug Burgum and Kevin Griess, the superintendent of the National Mall and Memorial Parks, from taking enforcement action against them because of their display of the flag.
The ruling comes as a victory for Democratic lawmakers who argued that Trump weaponized his Department of Justice when it indicted former FBI Director James Comey in April for posting a photo last year of seashells arranged to form the numbers "86 47."
Moss noted in his opinion that Accountability Now USA, represented by the D.C. chapter of the American Civil Liberties Union, has been protesting after obtaining a legal permit from the National Park Service that is months away from its expiration in August.
"Today, the court recognized that the real threat is a federal government that seeks to punish criticism and trample on our freedoms," wrote Laura Follansbee, a staff attorney at ACLU-DC, in a statement Monday. "Today's order is a win for everyone's First Amendment rights." She added, "No one should face government retaliation for expressing their political views."
Moss acknowledged Monday that the group has endured repeated efforts by local law enforcement in recent months to compel them to remove the flag, and then rejected the underlying claim from Trump and his administration that the phrase "86" is a death threat. "The government seeks to squelch core political speech without any articulable — much less evidentiary — basis for concluding that the speech actually threatens the life or safety of the President," the federal judge wrote in his memorandum opinion.
Moss cited Merriam-Webster in stating that "86" is a slang term meaning "to throw out," "to get rid of," or "to refuse service to," originating from 1930s soda-counter culture. He noted that "to kill" is a recent extension that the dictionary does not endorse due to sparseness of use. He also noted that, when Secret Service and U.S. Park Police officers ordered the protesters in a recorded exchange last month to lower the flag, the group did not engage in any threatening speech or conduct and was cooperative and friendly instead.
Comey remains under federal indictment in the Eastern District of North Carolina over his social media post, facing two charges of threatening harm to the president and transmitting that threat across state lines by uploading the since-deleted post online. Moss concluded in his opinion that "it is a bridge too far" to claim the safety of the president should allow even briefly to suppress political speech based on nothing more than the unsubstantiated possibility that it might unreasonably be misunderstood as a call to violence.
