Fmr. FBI Special Agent: On Its Face, Comey’s ‘86 47’ Message Is Absolutely Not a Threat

EXCERPT:

O’LEARY: “I would not. Now, it’s possible that there’s other information that the FBI is looking at that, you know, backs up their decision to investigate and Secret Service to pull him in for an interview. But on its face, absolutely not. So there’s two federal statutes that kind of govern this. One is threats against the president, Title 18, 871. And the other one is title 18, 875, which is internet threats. It has to be very specific. And there’s plenty of court rulings that govern this. And the most notable is something called the Brandenburg Test, which goes back to 1969 Supreme Court ruling, which said that the threat has to be very specific. It can’t be general. It can’t be, somebody should get a gun and, you know, kill this person at some time. It has to say that, you know, I am going to get, you know, a candlestick and I’m going to attack this person tomorrow. So it has to be imminent. And then I have to actually have the means. It can’t be aspirational. So, it’s called the Brandenburg Test. And it goes back to actually the test of free speech versus actually threatening speech. And it was actually a KKK leader that sued the U.S. government. And it really came down to hate speech does not constitute a violation of — or a removal of their First Amendment protected speech.”