86-47 flag

Anti-Trump group can keep flying ‘86-47’ flag near National Mall, judge rules

U.S. District Judge Randolph Moss says the banner can’t plausibly be read to threaten violence against President Donald Trump.

By Josh Gerstein and Kyle Cheney

A federal judge has ordered the National Park Service not to interfere with a liberal organization’s display of an “86-47” flag at its ongoing demonstration near the National Mall, rejecting the contention that the phrase was meant as a coded call for violence against President Donald Trump.

U.S. District Judge Randolph Moss issued a two-week restraining order Monday at the request of Accountability Now USA, which has been protesting Trump for months at a site in front of the federal courthouse on Constitution Avenue.

Moss concluded that the group intended to advocate for Trump’s removal from office via impeachment, and that “86” is not an unambiguous call to political violence — and certainly not the kind of “imminent” violence that would be necessary to justify restrictions on speech.

“The Court does not doubt that political violence is on the rise and that it poses a grave threat not just to the targets of the threats but to the country as a whole. But the enormity of that problem does not change the meaning of Plaintiff’s speech, which by any reasonable measure merely advocated for the President’s impeachment and removal from office — that is, ‘to throw [him] out,’” Moss wrote.

The Obama-appointed judge appended a Merriam-Webster definition of the term “eighty-six,” which defines it as a 1930s soda-counter slang meaning “to throw out “ or ”to get rid of.”

The ruling doesn’t mention the recent criminal case brought against former FBI director James Comey, accusing him of threatening Trump’s life last year with an Instagram post of a seashell arrangement on a North Carolina beach that depicted the “8647” phrase. But Moss’ determination underscores questions about the genesis of the charges against Comey, who took down the post and apologized and has repeatedly denied that the expression was meant to provoke violence against Trump.

An attorney for Comey, Patrick Fitzgerald, declined to comment on the decision.

Moss’ ruling doesn’t rule out the possibility that use of “86-47” could be viewed as a threat in some context, and he notes that Merriam-Webster’s discussion of “eighty-six” does mention it is sometimes used to refer to killing someone, although the editors declined to adopt that meaning “due to its relative recency and sparseness of use.”

According to court filings, Secret Service agents visited the protest on May 12 and briefly spoke with some people who were participating, who said they wanted Trump out of office but wished him no physical harm.

Justice Department attorneys said the flag became more ominous in the wake of the May 24 incident near the White House, where an armed man was shot dead by law enforcement.

Accountability Now USA first ran into trouble with the Park Service in April over signs critical of Trump’s handling of the Jeffrey Epstein files, including one sign that said, “Trump raped little girls.”

Trump has acknowledged that he knew Epstein but has said he broke off ties with him before he came under scrutiny by law enforcement. The federal government’s files on Epstein contain a smattering of allegations against Trump, but authorities have said they were deemed not credible. Trump has denied wrongdoing in relation to Epstein’s crimes.

A Park Service official emailed the protest group in April, alleging that its signs contained “obscenity” not protected by the First Amendment and that the organization could face “further steps” if the signs were not removed.

The group took the signs down temporarily before suing, Moss said. His opinion issued Monday does not analyze whether the signs meet the legal definition of obscenity.