Federal judge lets left-wing group keep flying “86 47” flag near National Mall over government objections

A federal judge appointed by Barack Obama temporarily blocked the National Park Service from pulling the permit of a left-wing protest group flying an “86 47” flag within sight of the National Mall, ruling the message amounts to protected political speech, not a threat against President Donald Trump.

U.S. District Judge Randolph Moss granted a two-week temporary restraining order Monday, siding with Accountability Now USA, which has been running a round-the-clock demonstration in Washington, D.C., calling for Trump’s impeachment. The group alleged the Park Service violated its First Amendment rights by threatening to revoke the permit over the flag’s message.

The decision lands at a moment when the same three-digit phrase sits at the center of a federal criminal case against former FBI Director James Comey, and when the president has been the target of repeated real-world violence, including a gunshot wound suffered during a July 2024 rally in Butler, Pennsylvania. That a judge would treat the phrase as harmless soda-counter slang while the Justice Department treats it as a chargeable offense in another courtroom tells you something about how fractured the legal landscape has become.

What the judge said, and what he dismissed

Moss, who previously served in Bill Clinton’s Justice Department before Obama placed him on the federal bench, wrote that the flag’s meaning was clear enough. Fox News Digital reported that Moss found “the evidence shows that Plaintiff displayed the 8647 flag to urge that Congress impeach and remove President Trump from office.”

He acknowledged the term “86” carries some ambiguity but traced it to restaurant-industry jargon from the 1930s meaning to throw out, refuse service, or get rid of something. The flag itself, he noted, bore no violent symbols and used patriotic colors.

The Washington Times reported that Moss wrote “no reasonable observer could have viewed [Accountability Now USA’s] display of the flag as a threat to the president’s life or physical safety.” He went further, saying it was “difficult to fathom how the NPS (or the Secret Service) could have concluded that a reasonable observer would view the flag as a true threat.”

That is a striking rebuke, not of the protesters, but of the federal agencies charged with protecting the president.

Moss did allow, in his opinion, that “a true threat to the life or safety of the President would undoubtedly outweigh the interest of the public or the speaker in continuing to urge that unlawful conduct.” But he concluded this case did not meet that threshold.

The government’s position, and the Comey problem

The Department of the Interior pushed back hard. A DOI spokesperson called the ruling the work of “an Obama-appointed judge” and asked, “In what world have we lost all decency, to demand that any threat against the President be taken very seriously?” The spokesperson added: “While the Department shall and does comply with the Court’s orders, this type of behavior should not be tolerated.”

The Justice Department, for its part, argued in the case that the government has a strong interest in investigating possible threats against the president. The Washington Examiner reported that the Secret Service has investigated more than 1,300 uses of the phrase “86-47”, a number that suggests federal law enforcement takes the expression far more seriously than Judge Moss does.

Secret Service agents interviewed protesters at the demonstration site. One volunteer told agents, “I want Trump to live forever and rot in jail where he belongs,” when asked whether the flag was intended as a threat. That quote, whatever else it reveals about the speaker’s political views, does undercut the notion that the group was calling for violence.

But the contradiction between this ruling and the Comey prosecution is hard to ignore. The DOJ charged the former FBI director with two federal counts over an Instagram post showing seashells arranged to spell “86 47.” Comey faces up to 10 years in prison if convicted. He denied any violent intent and said he understood the phrase to mean “leave” or “ditch.”

So one arm of the federal government treats “86 47” as a criminal threat serious enough to warrant a decade behind bars, while an Obama-appointed judge in the same city calls it protected political speech no reasonable person could mistake for a threat. Both positions cannot be right. And the gap between them is wide enough to drive an entire constitutional debate through.

A pattern in the courts

The ruling fits a broader pattern of federal judges blocking executive-branch enforcement actions on constitutional grounds, decisions that sometimes track neatly with the political leanings of the president who appointed them. Moss’s background in Democratic administrations does not automatically disqualify his legal reasoning, but it does provide context that readers deserve to weigh for themselves.

Newsmax reported that Moss wrote a lengthy passage acknowledging the reality of rising political violence:

“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.'”

The passage is carefully worded. It nods to the threat environment while insisting the speech at issue falls on the protected side of the line. Reasonable conservatives can disagree with where Moss drew that line, especially given the actual bullets that have been fired at this president.

Trump was grazed by a gunman’s bullet during a rally in Butler, Pennsylvania, on July 13, 2024, and pumped his fist as Secret Service agents rushed him offstage. The article notes two assassination attempts on his life in 2024 alone, and further violence was reported in connection with the White House Correspondents’ Association Dinner just this past April. A university president described that incident as evidence of a broader crisis of morality in American institutions.

Another D.C. judge, another controversy

The flag ruling is not the only recent judicial decision in Washington that has drawn sharp criticism from Trump allies. U.S. Magistrate Judge Zia Faruqui recently apologized from the bench to Cole Allen, the suspect accused of plotting an assassination attempt tied to the White House Correspondents’ Dinner, over Allen’s treatment in custody.

Faruqui told Allen: “At a minimum, I should be apologizing to him. We are obligated to make sure he’s taken care of. Mr. Allen, I’m sorry that things have not been the way they are supposed to.”

That apology drew fierce backlash. When judges extend courtesy and solicitude to individuals accused of plotting violence against the president while simultaneously shielding protesters who fly ambiguous slogans near the seat of government, a reasonable person might wonder whose safety the system prioritizes.

Breitbart reported that Moss wrote the government had offered “no basis to doubt that Plaintiff is engaged in fully protected First Amendment activity” and accused the government of seeking “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.”

Strong language from the bench. But it sidesteps the practical question that the Secret Service, the Park Service, and ordinary citizens are left to answer: when a president has been shot, and when the same phrase is being prosecuted in a separate federal case, how much ambiguity should the government tolerate on the National Mall?

Fourteen days and counting

The temporary restraining order runs for 14 days. Litigation will continue. Fox News Digital reached out to Moss’s chambers for comment, and no response was noted.

Accountability Now USA, the group behind the protest, describes its demonstration as a weeks-long, 24/7 presence in Washington calling for Trump’s impeachment. The organization’s permit dispute with the Park Service now becomes a live First Amendment test case, one that could shape how the government handles political speech that sits in the gray zone between protest and provocation.

The stakes extend well beyond one flag on one stretch of grass. If “86 47” is protected speech when it flies on a pole near the Capitol, the DOJ will have a harder time explaining why the same phrase is a federal crime when James Comey arranges it in seashells on Instagram. And if it is a prosecutable threat in Comey’s case, then Moss’s ruling looks less like a vindication of the First Amendment and more like selective judicial sympathy.

The broader context matters, too. Federal courts have increasingly become the arena where policy disputes are settled, and high-profile cases involving violence and accountability continue to test whether the justice system applies its standards evenly. Meanwhile, taxpayers fund the agencies caught in the middle of these legal battles, agencies told simultaneously to protect the president and to stand down when a judge says the threat isn’t real enough.

The First Amendment protects a great deal of speech that most Americans find distasteful, provocative, or reckless. That principle is worth defending. But when the same three digits are free speech in one courtroom and a felony in another, the law isn’t speaking with one voice, and the people left unprotected are the ones who never asked for the ambiguity in the first place.