UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ACCOUNTABILITY NOW USA,
Plaintiff,
v. Civil Action No. 26-1385 (RDM) KEVIN GRIESS, Superintendent of the National Mall and Memorial Parks, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff, an unincorporated association that maintains a 24/7 demonstration calling for
the impeachment and removal of President Donald Trump on National Park Service (“NPS”)
land, moves for an emergency order temporarily restraining the Superintendent of the National
Mall and Memorial Parks Kevin Griess and the Secretary of the Interior Doug Burgum or their
delegees “from taking enforcement action against them because of their display of a flag with the
legend ‘8647.’” Dkt. 10 at 1. For the reasons that follow, the Court will grant Plaintiff’s motion.
I. BACKGROUND
At least at this early stage of the litigation, many of the relevant facts are uncontroverted.
Plaintiff Accountability NOW USA (“Accountability Now”) is an unincorporated association
that holds a permit from the NPS to conduct “a demonstration near the George Meade Statue on
Constitution Avenue in Washington, D.C.” Dkt. 8-1 at 1 (Carey Decl. ¶¶ 1–2). “Volunteers
maintain the demonstration twenty-four hours a day, seven days a week” at which they “engage
in face-to-face conversations with members of the public[] to call attention to the rise of fascism
in the United States and [to] demand the impeachment of President Trump.” Id. (Carey Decl. ¶ 2). Plaintiff’s “current permit was issued on April 13, 2026, and is valid through August 12,
2026[,]” and Plaintiff “intends to obtain another permit when the current permit expires, at the
same or another location on NPS-managed land in the District of Columbia.” Id. at 2 (Carey
Decl. ¶ 3).
On February 24, 2026, in response to reporting “that the Justice Department was
withholding more than 50 pages of FBI interviews with a woman who had accused Donald
Trump of sexually abusing her when she was a minor[,]” Plaintiff began to display two new
signs at the demonstration. Id. (Carey Decl. ¶ 4). One sign read: “TRUMP RAPED LITTLE
GIRLS.” Id. The other read: “KIDS, IF YOUR PARENTS ARE MAGA, THEY LOVE CHILD
RAPISTS.” Id. According to Plaintiff, “[t]he display of those signs has engendered numerous
conversations between volunteers and passersby regarding President Trump’s behavior, morality,
and fitness to continue in office.” Id.
On April 14, 2026, an NPS agent emailed Anita Carey, an organizer with Accountability
Now who is listed as the “Person in Charge” on Plaintiff’s permit, Dkt. 17 at 1 (Pl.’s Ex. 1 at 1),
relaying the following message from Defendant Superintendent Griess: “Based on the
photographic evidence from earlier today, the [Plaintiff’s] first amendment permit is displaying
unprotected obscenity in signs or media. This is not protected by the first amendment and is
therefore prohibited and a violation of law.” Dkt. 8-1 at 2–3 (Carey Decl. ¶ 5). That same day,
Carey responded to Superintendent Griess directly, “seeking clarification of NPS’s position and
asking, in particular, why NPS believes the signs meet the legal definition of obscenity and what
would happen if the signs remain on display.” Id. at 3 (Carey Decl. ¶ 6). Griess responded as
follows on April 15, 2026:
2 Thank you for your message. We appreciate your cooperation as we work to ensure that all permitted activities remain in compliance with federal requirements.
To clarify, the material displayed under your permit has been evaluated under all appropriate standards and tests and is deemed unprotected obscenity, which the Court has established is not protected by the First Amendment. This determination is supported by federal law which prohibits obscene material on federal property.
Because obscenity is unlawful on federal land, we must ask that the material be removed.
The National Park Service may impose and enforce permit conditions to prevent unlawful conduct, including the display of obscene materials prohibited under federal law. All activities conducted under an NPS permit must remain lawful and in compliance with permit conditions. If a permittee chooses not to comply with a lawful direction to cease prohibited conduct, the National Park Service may take further steps as appropriate to ensure compliance.
Id. (Carey Decl. ¶ 7).
“Based on these communications and the recent experiences of other NPS permit holders
whose demonstrations were critical of President Trump,” Accountability Now concluded that it
faced “a realistic and imminent threat that its demonstration permit [would] be summarily
revoked or its signs removed, with minimal or zero notice” and that “[r]evocation [might] result
in the destruction of its valuable property, including its tents, tables, chairs, sound equipment,
and literature.” Id. (Carey Decl. ¶ 8). In particular, Plaintiff concluded “Defendant Greiss’s
message that the signs were ‘unlawful’ and that NPS would ‘take further steps as appropriate to
ensure compliance’” meant that the NPS would either “summarily revoke its permit and
dismantle its demonstration or [would] remove the signs with little or no notice.” Id. at 4 (Carey
Decl. ¶ 10). “[I]n order to forestall” such an “enforcement action,” Plaintiff “temporarily
removed the signs” at issue, filed this lawsuit, and unsuccessfully attempted to negotiate a
resolution of the dispute with the NPS. Id. (Carey Decl. ¶ 11). Plaintiff filed a motion for a
preliminary injunction on May 26, 2026, Dkt. 8, seeking an order barring Defendants from 3 “taking any action” against Plaintiff “in retaliation” for displaying the two signs, “including
revocation of Plaintiff’s demonstration permit or seizure of [the] signs.” Dkt. 8-2 at 1.
In addition to the two signs discussed above, Plaintiff began displaying a red, white, and
blue flag, which Plaintiff purchased from Amazon, that read “8647.” Dkt. 10-2 at 1–2 (2d Carey
Decl. ¶¶ 3–5). Although the record is unclear about precisely when the flag first appeared, the
record shows that it was on display by the morning of May 12, when two Secret Service officers
approached a volunteer at the demonstration and engaged in the following brief conversation:
Officer: How are you?
Volunteer: I’m good. I’m recording this ‘cause they told me to.
Officer: That’s fine.
Volunteer: How’s it going?
Officer: Not a problem. Just so you’re aware, this is all consensual[.]
Volunteer: Yeah[.]
...
Officer: . . . we received a phone call because of the flag, in fact the 86 47 and what it can stand for.
Volunteer: Uh-huh. I never heard of it standing for anything other than Trump shouldn’t be in office.
Officer: OK. Alright. So you have no ill-will towards . . .
Volunteer: I want Trump to live forever and rot in jail where he belongs.
Officer: OK. That’s it. That’s all, all I needed to know[.]
Volunteer: OK[.]
Officer: We just, we got a call so we just wanted to come down here . . .
Volunteer: I’m sorry someone wasted your time[.]
4 Officer. Oh, you’re good. You’re good. It’s part of our job[.]
Volunteer: Yup[.]
Officer: We just want to make sure that your First Amendment rights are protected. They were concerned, so we just want to make sure there’s no ill-will.
Volunteer: OK. Haha. Thank you so much.
Officer: Alright. Yes, ma’am.
Volunteer: OK.
Dkt. 15 at 2–3 (https://photos.app.goo.gl/MyS5T7g7b4JXRYmY6).
Things took a turn for the more confrontational when two different officers approached
the same volunteer about 25 minutes later and read her the Miranda warnings. Id. at 3. The
volunteer was not in custody at the time, and, despite the officer’s representation, her right to
court-appointed counsel had not attached. Although politely delivered, the message was a
worrisome one—that is, she was at risk of criminal prosecution for displaying the flag.
Understandably, the volunteer declined to speak with the officers. Id. The Secret Service
opened an investigation into the volunteer as a “potential threat.” Dkt. 13-1 at 4 (Quinn Decl.
¶ 10). “[The] investigation remains ongoing.” Id.
Nothing happened, however, for another two weeks. But then, “[o]n Tuesday, May
26, . . . the Secret Service shared information with the U.S. Department of the Interior about its
ongoing investigation relating to the individual holding a flag displaying the statement ‘8647’ on
May 12 in the 300 block of Constitution Avenue, N.W.” Dkt. 16 at 1–2 (citation modified). The
following day—and less than 24 hours after Plaintiff moved for a preliminary injunction
regarding the two signs—“four cars of U.S Park Police officers pulled up to Plaintiff’s
5 demonstration site” at around 5 a.m. on May 27, and an officer read “the volunteer on duty” the
following “from a clipboard:”
18 U.S. Code 8741[.] Threats against the President. Right now, we’re looking at the 8647 as a threat against the President. Can I ask you to take it down please? The sign here?
Dkt. 10-2 at 1 (2d Carey Decl. ¶ 2). All agree that no such provision of the U.S. Code exists and
that the officer presumably intended to refer to 18 U.S.C. § 871, Dkt. 10 at 2; May 28, 2026 Hrg.
Tr. (Rough at 28), which makes it a felony to “knowingly and willfully” threaten “to take the life
of . . . or to inflict bodily harm upon the President of the United States.” In any event,
Defendants do not dispute that “on May 27, the government ordered that the flag be taken
down[,]” Dkt. 16 at 2; that the volunteer on duty did so, Dkt. 10-2 at 1 (2d Carey Decl ¶ 2); or
that the officer told the volunteer to “please refrain from putting it back up” and warned that,
“[i]f it comes back up[,] we’ll be by here again, OK, and then it will be a violation of the
permit,” id.; see also Dkt. 10 at 1 (https://photos.app.goo.gl/jtM8Tj7sCnkS4Smg9).
Later that day, Plaintiff filed an amended complaint adding the flag incident as part of its
First Amendment challenge to the threatened revocation of Plaintiff’s permit and required
removal of Plaintiff’s two signs. See Dkt. 9 at 6–7 (Am. Compl. ¶¶ 22–26). Plaintiff
simultaneously moved for a temporary restraining order (“TRO”) to “prevent Defendants from
taking enforcement action against [it] because of [its] display of” the flag. Dkt. 10 at 1. The
following day, the Court heard argument on the motion. See Min. Entry (May 28, 2026).
Because Defendants’ counsel was unable to offer any description of the agency’s actual reasons
for concluding that Plaintiff’s specific display of the flag posed a true threat—as opposed to
conveying a political message urging President Trump’s removal from office—the Court
provided the parties with an opportunity to supplement the record, see id., and specifically
requested that Defendants submit evidence or records addressing their decision-making process 6 regarding the direction that Plaintiff remove the flag. May 28, 2026 Hrg. Tr. (Rough at 38, 43,
46). Both parties made additional submissions. Dkts. 15, 16, 18, & 19.
II. ANALYSIS
“A [TRO] is “an extraordinary form of relief,” Banks v. Booth, 459 F. Supp. 3d 143, 149
(D.D.C. 2020), which is evaluated using the same “factors applicable to preliminary injunctive
relief” and which, accordingly, “may only be awarded upon a clear showing that the plaintiff is
entitled to such relief,” id. (second quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir.
2011)). To obtain a TRO, a movant “must show that (1) it is likely to succeed on the merits;
(2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of
equities tips in its favor; and (4) the issuance of a preliminary injunction is in the public interest.”
Alpine Sec. Corp. v. Fin. Indus. Regul. Auth., 121 F.4th 1314, 1324 (D.C. Cir. 2024) (citation
modified).
Although “the movant has the burden to show that all four factors, taken together, weigh in
favor of the injunction,” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (citation
modified), likelihood of success on the merits and irreparable harm “are of particular
importance.” Corp. for Pub. Broad. v. Trump, 786 F. Supp. 3d 142, 149 (D.D.C. 2025).
Plaintiff’s likelihood of success on the merits is a “key issue [and] often the dispositive one” at
the TRO stage, Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dep’t of Hous. & Urb. Dev.,
639 F.3d 1078, 1083 (D.C. Cir. 2011), and “[w]hen a plaintiff has not shown a likelihood of
success on the merits, there is no need to consider the remaining factors” for a TRO, id. at 1088.
Similarly, “[a] movant’s failure to show any irreparable harm is . . . grounds for refusing to issue
a [TRO]” regardless of the other three factors. Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290, 297 (D.C. Cir. 2006).
7 The Court, accordingly, starts with the merits, then turns to irreparable harm, and, finally,
addresses the remaining factors. Because the present motion seeks only a temporary restraining
order, the parties will be free to develop a more complete record at the preliminary injunction
and summary judgment stages of the proceeding.
A. Likelihood of Success on the Merits
This case implicates two fundamental principles essential to a free country. First,
content-based restrictions on political speech in a public forum—particularly restrictions that are
premised on the ad-hoc impressions or views of government officials—are inherently suspect.1
In the words of the Supreme Court, “content-based laws—those that target speech based on its
communicative content—are presumptively unconstitutional and may be justified only if the
government proves that they are narrowly tailored to serve compelling state interests.” Reed v.
Town of Gilbert, 576 U.S. 155, 163 (2015) (citations omitted); Archdiocese of Washington v.
Washington Metro. Area Transit Auth., 897 F.3d 314, 322 (D.C. Cir. 2018) (“To enforce a
content-based exclusion in a public forum, the regulation must satisfy strict scrutiny.” (citation
omitted)). Second, true threats to the life or safety of government officials are intolerable. Full
and open debate is necessary for democracy to work. But there is nothing democratic about
seeking political change or influence through threats of violence. “True threats of violence,” like
1 Plaintiff contends, and Defendants do not dispute, that the NPS-managed property by the General Meade statue on Constitution Avenue constitutes a traditional public forum, see Dkt. 9 at 1—that is, a “place[] which by long tradition or by government fiat ha[s] been devoted to assembly and debate,” such as streets and parks, where “the rights of the state to limit expressive activity are sharply circumscribed.” Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 45 (1983). Indeed, the NPS issued Plaintiff a permit for “[a] 24/7 Vigil to Exercise [its] First Amendment Rights” at the George Meade Statue, Dkt. 17 at 1 (Pl.’s Ex. 1 at 1), and expressly authorized the participants “to exercise their first amendment rights” at the site, id. at 2 (Pl.’s Ex. 1 at 2). The site is in front of the courthouse, open to the public, within sight of the Capitol, and just steps away from the National Mall.
8 criminal incitement, are not protected by the First Amendment, Counterman v. Colorado, 600
U.S. 66, 72 (2023), and “may [be] prohibit[ed] . . . without raising any Constitutional problem,”
Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 471 (2025) (citation modified). Here, neither
party disagrees with either of these principles.
The parties’ disagreement, instead, turns on whether Plaintiff’s display of the “8647” flag
constitutes protected speech, as Plaintiff asserts, or a “true threat” to the life or safety of the
President (or an incitement to violence), as Defendants maintain. At oral argument, both sides
agreed that context is dispositive. Not every use of the slang phrase “86” constitutes a threat of
violence; to the contrary, it is most often used to mean that an item is no longer available or that
someone or something should be removed, ejected, or thrown out. But it can, in some contexts,
mean “to kill.”
Because the NPS cited to (or attempted to cite to) the statute making it a crime to threaten
the President with physical violence, Dkt. 10-2 at 1 (2d Carey Decl. ¶ 2), the Court starts with
true threats. The Court will also consider incitement, however, which counsel for the
government has raised in this litigation.
1. True Threats
“True threats of violence, everyone agrees, lie outside the bounds of the First
Amendment’s protection.” Counterman, 600 U.S. at 72. “‘True threats’ encompass those
statements where the speaker means to communicate a serious expression of an intent to commit
an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black,
538 U.S. 343, 359 (2003). “The ‘true’ in that term distinguishes what is at issue from jests,
‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that
violence will follow.” Counterman, 600 U.S. at 74 (citing Watts v. United States, 394 U.S. 705,
708 (1969) (per curiam)). “The existence of a threat depends not on ‘the mental state of the 9 author,’ but on ‘what the statement conveys’ to the person on the other end.” Id. (quoting Elonis
v. United States, 575 U.S. 723, 733 (2015)); United States v. Syring, 522 F. Supp. 2d 125, 129
(D.D.C. 2007) (“[c]ourts determining whether communications constitute true threats have
generally applied an objective standard . . . [assessing] “whether a reasonable person would
consider the statement a serious expression of an intent to inflict harm[.]” (citing Planned
Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1075 n.7
(9th Cir. 2002)). Alleged threats “must be analyzed ‘in light of their entire factual
context,’ . . . including: the reaction of the recipient of the threat and of other listeners; whether
the threat was conditional; whether the threat was communicated directly to its victim; whether
the maker of the threat had made similar statements to the victim in the past; and whether the
victim had reason to believe the maker of the threat had a propensity to engage in violence.” Id.
at 130 (citation modified) (quoting United States v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996)).
The Supreme Court has clarified, however, that this objective standard does not end the
inquiry, at least in a criminal case; “the First Amendment may still demand a subjective mental-
state requirement shielding some true threats from liability.” Counterman, 600 U.S.at 75. In
other words, at least in the context of “true-threats cases,” id. at 73, unless a speaker intends to
convey a threat or “consciously disregards a substantial and unjustifiable risk that the conduct
will cause harm to another,” id. at 79 (citation modified), the First Amendment precludes
punishing such otherwise unprotected speech, id. at 82. Although Counterman arose in the
context of, and speaks in terms of, criminal prosecutions and criminal punishment, the case has
been read by at least some members of the Court to implicate civil enforcement and regulatory
action as well. See id. at 118–19 (Barrett, J., dissenting) (emphasis in original) (because “this
case is about the scope of the First Amendment, not the interpretation of a criminal
10 statute . . . the Court’s holding affects the civil consequences for true threats just as much as it
restricts criminal liability”).
Here, although the Secret Service officer read the volunteer her Miranda rights, Dkt. 15
at 3, and the Park Police officer subsequently invoked the federal statute criminalizing threats
against the President in directing Plaintiff to remove the flag, Dkt. 10-2 at 1 (2d Carey Decl. ¶ 2),
Plaintiff does not seek to enjoin an ongoing criminal prosecution or proceeding. Instead,
Plaintiff challenges the NPS’s direction to remove the flag and the NPS’s threatened revocation
of Plaintiff’s demonstration permit, should the flag reappear. Dkt. 10-3 at 1. Plaintiff, in other
words, challenges an administrative action taken by the NPS requiring that Plaintiff remove the
flag as a condition of maintaining its NPS-issued demonstration permit, although the basis for
the administrative action (as conveyed to Plaintiff by the NPS) was that a federal statute—18
U.S.C. § 871—makes it a crime to “knowingly and willfully . . . make [a] threat against the
President.” Framed in this manner, it seems likely that the NPS’s action can be sustain only if
the speech at issue satisfies both the objective and subjective criteria for a true threat. But see
Leroy v. Livingston Manor Cent. Sch. Dist., 158 F.4th 414, 423 (2d Cir. 2025) (applying only an
objective standard of true threats to student speech that resulted in suspension and ban from
school activities). But because the parties have not briefed the issue, and because the NPS, in
any event, offers no plausible basis to conclude that a reasonable person, aware of the relevant
circumstances, would regard the flag to represent “a serious expression of an intent to commit an
act of unlawful violence to” the President, Black, 538 U.S. at 559, the Court need not consider
whether and how the subjective standard applies to civil proceedings.
The Court starts with the premise that the word “86” is a slang term with no single
meaning. According to Merriam-Webster, “Eighty-six is slang meaning ‘to throw out,’ ‘to get
11 rid of,’ or ‘to refuse service to.’” What does “eighty-six” mean?, Merriam-Webster,
https://perma.cc/3KZD-9LXL. The phrase “comes from 1930s soda-counter slang meaning that
an item was sold out[,]” and may have been used because it rhymes with “nix.” Id. It was first
used as a noun to refer “to an item . . . that had been sold out,” but by the 1950s, the term was
used as a verb, at first meaning “‘to refuse to serve a customer,’ . . . later meaning “‘to get rid of;
to throw out,’” and still later coming to mean “‘shut out’ or ‘rejected.’” Id. Merriam-Webster
further notes that a recent extension of these meanings has included “‘to kill,’” although the
dictionary declines to endorse that meaning “due to its relative recency and sparseness of use.”
Id. According to Merriam-Webster, “[t]he most common meaning of eighty-six encountered
today is the one that is closer to its service industry roots.” Id.
Plaintiff represents that its display of the flag was “not in any way a threat against the
President” but, rather, was part of months-long demonstrations demanding “the impeachment
and removal of President Trump.” Dkt. 10-2 at 2 (2d Carey Decl. ¶ 6). Although Defendants
offer no evidence or explanation regarding how (and why) the NPS understood Plaintiff’s actual
use of the term, the Deputy Director of the Secret Service attests that he generally “regard[s] the
statement ‘86-47’ as a potential call for acts of violence directed at the President of the United
States” and that he “understand[s] ‘86’ to represent a euphemism for acts of physical violence.”
Dkt. 13-1 at 3 (Quinn Decl. ¶ 8). As explained below, the parties’ characterizations of the
speech are less far apart than they might at first seem: Plaintiff represents that it did not intend to
convey a threat of violence and that no reasonable observer would conclude otherwise, while
Defendants posit that “86” can at times mean “to kill,” although they concede that that is not the
only meaning of the term. 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
12 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.
The question whether “8647” constitutes a true threat cannot be resolved in the abstract,
without consideration of context, and, here, the relevant context makes clear that no reasonable
observer could have viewed Plaintiff’s display of the flag as a threat to the President’s life or
physical safety. To start, the flag itself contains no symbols of violence; it is red, white, and
blue, and is simply adorned with white stars. It contains no knives, skulls, nooses, or other
threatening symbols. Even more to the point, the flag was displayed outside the courthouse, as
part of an ongoing demonstration seeking President Trump’s impeachment and removal from
office. Dkt. 10-2 at 2 (2d Carey Decl. ¶ 6). In a video submitted by Plaintiff, the flag can be
seen hanging from one side of Plaintiff’s tent, surrounded by not one, but four signs that read
“IMPEACH. CONVICT. REMOVE.” Dkt. 19. Yet another sign merely reads: “IMPEACH.”
Id. In short, the surrounding signage urged Congress “to throw out” the President.
Nor is there any evidence that Plaintiff or the volunteers who staffed the demonstration
engaged in any threatening speech or conduct. To the contrary, when approach by the Secret
Service on May 12, the volunteer was cooperative and friendly. Even more importantly, when
the officer informed the volunteer that the Secret Service had “received a phone call because of
the flag . . . and what it can stand for,” the volunteer seemed genuinely stunned and responded: “I
never heard of it standing for anything other than Trump shouldn’t be in office.” Dkt. 15 at 2.
When the officer continued, “[s]o you have no ill-will towards” the President, the volunteer said,
“I want Trump to live forever,” adding that she also wanted him to “rot in jail.” Id. Given this
response, the officer left without taking any further action and, instead, reassured the volunteer
13 that he wanted “to make sure that [her] First Amendment rights are protected” and that “there’s
no ill-will.” Id.
Under these circumstances, it is 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. The term
“86” is used far more often to mean “throw out” than “kill,” and it appeared at a demonstration
that was focused, of all things, on the constitutional impeachment and “removal” of the
President. Dkt. 10-2 at 2 (2d Carey Decl. ¶ 6); see also Dkt. 19. And, for safe measure, the
volunteer informed the Secret Service that the flag merely sought President Trump’s removal
from office. Dkt. 15 at 2.
At oral argument, Defendants’ counsel conceded that (1) the inquiry of whether particular
speech is a true threat is context-dependent; (2) there are circumstances in which the term “8647”
does not represent a true threat to the President, May 28, 2026 Hrg. Tr. (Rough at 15–16); and
(3) the Defendants are “not going to prosecute or go after everybody with an 8647 flag,” id.
(Rough at 19). But when asked, how, then, did Defendants conclude that Plaintiff’s specific
invocation of “8647” constituted a true threat, id. (Rough at 16–18, 20, 21–22, 29), Defendants’
counsel retreated, repeatedly asserting that the use of the term in the context of unprecedented
and recent assassination attempts against the President constitutes a true threat, id. (Rough at 16–
17, 22, 27, 29, 40). When asked whether the agency engaged in any case-specific fact-finding or
undertook any analysis of whether Plaintiff’s usage of 8647 in the context of its ongoing
demonstration violated 18 U.S.C. § 871, Defendants’ counsel demurred, noting that he either did
not know or that there was nothing in the record before the Court. Id. (Rough at 29–30, 34, 36,
38).
14 Given the centrality of this type of context-specific inquiry, and the absence of any
evidence that the NPS ever considered the context in which the flag was displayed, the Court
invited Defendants to supplement the record with any evidence or material explaining the NPS’s
thinking. Id. (Rough at 38, 43). Defendants failed to offer any analysis or consideration of
specific context surrounding Plaintiff’s display of the flag. Instead, Defendants simply repeated
Deputy Director of the Secret Service Matthew Quinn’s averment that he regards “the statement
‘86-47’ as a potential call for acts of violence directed at the President,” Dkt. 16 at 1 (citation
modified) (quoting Dkt. 13-1 at 3 (Quinn Decl. ¶ 8)), and noted that “a shooting occurred in the
vicinity of the White House” on May 24, 2026, and that this “potential assassination attempt”
was a “significant intervening event from when [the Secret Service] first encountered the
individual holding [the] flag,” id. (citation modified); that “the Secret Service shared information
with the U.S. Department of the Interior about its ongoing investigation relating to the individual
holding [the] flag,” id. at 1–2 (citation modified); that the Secret Service has investigated or is
currently investigating “over 1,300 instances of individuals using ‘86-47’” as a threat, id. at 2;
that “[m]ost ‘86-47’ investigations by the Secret Service involve online threats” and that the use
of the “flag near the White House is a novel event[,]” id.; and, finally, that “[t]he Secret Service
does not construe ‘86-47’ to mean impeachment[,]” id.
Strikingly, only two or three of these assertions have any plausible nexus to the specific
context of Plaintiff’s display of the flag, and none of those assertions amounts to anything. The
first relevant assertion merely notes that the Secret Service is conducting an ongoing
investigation of the volunteer who spoke with the officers on May 12. Dkt. 16 at 1–2. But the
government says nothing about whether that investigation has revealed any evidence to support a
true threat claim, and an investigation is just an investigation. The second and third assertions
15 merely note that Plaintiff was displaying the flag in the same city in which the White House is
located—albeit almost two miles away—and that a shooting occurred on the street near the
White House on May 24. Id. It sweeps far too broadly, however, to suggest that anyone
displaying an “8647” flag in Washington, D.C. after the May 24 shooting has made a true threat
to the President’s life or safety. 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.” What does “eighty-six” mean?, Merriam-Webster,
https://perma.cc/3KZD-9LXL.
Finally, the Court notes that Defendants have yet to ascribe any conclusions to the NPS,
which is the agency that directed Plaintiff to remove (that is, to 86) the flag and that admonished
the association that the flag’s reappearance would constitute a violation of Plaintiff’s
demonstration permit. Dkt. 10-2 at 1 (2d Carey Decl. ¶ 2). It is possible that the NPS decided to
defer to the views of the Secret Service, Dkt. 16 at 1–2, that it conducted its own inquiry, or that
it was simply told to see to it that the flag was removed. The record, however, offers no
explanation for why the agency acted, other than its mis-citation to 18 U.S.C. § 871, Dkt. 10-2 at
1 (2d Carey Decl. ¶ 2). Absent some explanation of the NPS’s actual reasoning—including an
assessment of the context surrounding Plaintiff’s display of the flag—the Court can only guess as
to why the agency decided to censor Plaintiff’s speech.
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
16 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.
2. Incitement
In a single paragraph in their brief in response to Plaintiff’s TRO motion, Defendants
contend that displaying the “8647” flag constitutes incitement and, as a result, is unprotected by
the First Amendment. Dkt. 13 at 2. Notably, the NPS’s direction that Plaintiff remove the flag
was premised on 18 U.S.C. § 871 alone, and not on a theory of criminal incitement, and
Defendants offer no reason to believe that the NPS premised its decision on a theory of
incitement. As Defendants’ counsel conceded at oral argument, May 28, 2026 Hrg. Tr. (Rough
at 28–29), there is reason to doubt that the agency can defend its action based on a theory that
appeared first in litigation. Cf. Grace v. Barr, 965 F.3d 883, 903 (D.C. Cir. 2020) (“assessing the
reasonableness of an agency’s action, we look only to what the agency said at the time of the
action—not to its lawyers’ post-hoc rationalizations.” (citation modified)).
But, even if the Court were to reach this alternative theory, it would fare no better (and, if
anything, worse) than Defendants’ true-threat theory. Although words of “incitement” are
unprotected by the First Amendment, this category of speech is narrowly defined to include
words that are “directed [at] producing imminent lawless action and [that are] likely to incite or
produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam) (emphasis
added). Like true threats, “incitement inheres in particular words used in particular contexts[.]”
Counterman, 600 U.S. at 76. But incitement “demand[s] more” than even true threats: it requires
the speaker to have “specific intent, presumably equivalent to purpose or knowledge.” Id. at 81.
For many of the reasons already discussed, the evidence shows that Plaintiff displayed
the 8647 flag to urge that Congress impeach and remove President Trump from office. Dkt. 15
at 2; Dkt. 10-2 at 2 (2d Carey Decl. ¶ 6). The record contains no evidence that a reasonable 17 observer would have viewed the flag as an incitement to imminent violence or that Plaintiff
intended to incite political violence. Dkt. 15 at 2. Although Deputy Director Quinn attests that
he believes that the term 8647 “as it is understood today, can incite violence by others,” Dkt. 13-
1 at 3 (Quinn Decl. ¶ 8) (emphasis added), Brandenburg does not refer to words that “can incite”
imminent lawlessness—it refers to words that are “likely to incite,” 395 U.S. at 447—and
Defendants do not even suggest that Plaintiff’s flag comes close to satisfying that demanding
standard. Indeed, the Secret Service knew about Plaintiff’s flag, see generally Dkt. 15, yet
permitted Plaintiff to continue to display it for more than two weeks, Dkt. 10-2 at 1–2 (2d Carey
Decl. ¶¶ 2, 4), which the agency undoubtedly would never have allowed if it believed that the
flag was “likely” to incite an imminent attack on the President or any imminent violence at all.
The Court, accordingly, concludes that Plaintiff is likely to succeed on the merits of its
challenge to the NPS’s direction that it remove the flag or face revocation of the existing permit.
B. Irreparable Injury
Perhaps for good reason, Defendants do not even address this factor. The law is well-
settled that “[t]he loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Pursuing Am.’s Greatness v. Fed. Election
Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016) (citation modified). The NPS directed Plaintiff to
remove its flag—that is, to refrain from engaging in protected expression—and informed
Plaintiff that if the flag reappears, the agency would view such conduct as a violation of
Plaintiff’s demonstration permit. Dkt. 10-2 at 1 (2d Carey Decl. ¶ 2). The government has
appeared at Plaintiff’s demonstration on multiple occasions, id.; Dkt. 15, and has made clear on
at least one of those occasions that, in the government’s view, displaying the flag constitutes a
criminal offense, Dkt. 10-2 at 1 (2d Carey Decl. ¶ 2). Without preliminary relief, Plaintiff cannot
18 display the flag without fear of retribution, and will likely suffer an ongoing and irreparable
deprivation of its First Amendment rights.2
C. Balance of Equities and Public Interest
The balance-of-equities and public-interest factors merge if “the [g]overnment is the
opposing party[.]” Karem v. Trump, 960 F.3d 656, 668 (D.C. Cir. 2020) (quoting Nken v.
Holder, 556 U.S. 418, 435 (2009)). That is, “the [Defendants’] harm and the public interest are
one and the same, because the government’s interest is the public interest.” Pursuing Am.’s
Greatness, 831 F.3d at 511 (emphasis in original). Here, these factors also favor Plaintiff.
As the D.C. Circuit has frequently observed, there is “generally no public interest in the
perpetuation of unlawful agency action,” League of Women Voters of United States v. Newby,
838 F.3d 1, 12 (D.C. Cir. 2016) (collecting cases), and that principle applies with particular force
when the government engages in content-based censorship of political speech. To be sure, 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, for the reasons explained above,
that is not this case. 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. On the current record, Defendants have offered no basis to doubt
that Plaintiff is engaged in fully protected First Amendment activity, and it is a bridge too far to
suggest that the “important issue of safety for the President of the United States,” Dkt. 13 at 4,
2 It is no answer, moreover, to posit that Plaintiff could always re-display the flag and then challenge the NPS’s revocation of its permit. A plaintiff should not be required to endure a violation of its First Amendment rights—that is, revocation of an otherwise valid permit to demonstrate—to obtain judicial review of another violation of its First Amendment rights—that is, a restriction on what the plaintiff may say at that demonstration.
19 provides a permissible basis 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.
Notably, by granting Plaintiff’s motion for a TRO, the Court is not precluding the
government from responding to other speech that constitutes a true threat or an incitement to
lawlessness. Those are demanding doctrines, however, and for good reason—they protect core
First Amendment values that are essential to liberty and democracy. An agency’s mere say so—
a conclusory assertion that it “regards” that flag “as a potential call for acts of violence,” Dkt. 16
at 1 (citation modified), without consideration of specific context and without sound reason to
conclude that a reasonable person would, in fact, understand that message as a true threat—is not
close to enough. Under these circumstances, “the public’s interest in protecting First
Amendment rights and [Plaintiff’s] ability to exercise those rights outweigh any interest in the
continued enforcement.” Pursuing Am.’s Greatness, 831 F.3d at 512.
* * *
Because all four factors weigh decisively in Plaintiff’s favor, the Court will grant
Plaintiff’s motion for a temporary restraining order.
CONCLUSION
For the foregoing reasons, Plaintiff’s application for a temporary restraining order, Dkt.
10, is hereby GRANTED. It is further ORDERED that:
Defendants, their agents and employees, and all persons acting in concert with them, are
hereby RESTRAINED, for 14 days from the date of this Order, from revoking Plaintiff’s
demonstration permit as a result of Plaintiff’s display of its “8647” flag, or otherwise ordering
the removal of or seizing Plaintiff’s “8647” flag.
20 It is further ORDERED that this order shall be effective upon the posting of a bond in
the amount of $1.00 with the Clerk of the Court.
A separate order will follow.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: June 1, 2026