MENU

Reason.com

Free Minds & Free Markets

Lawyers Say Michelle Carter Had a First Amendment Right to Tell Her Boyfriend to Kill Himself. They're Right.

"Carter's words encouraging Roy's suicide, however distasteful to this Court, were protected speech."

CarterGlenn C. Silva/Pool/ZUMA Press/NewscomMichelle Carter was convicted last year of involuntary manslaughter because she told her boyfriend to kill himself. She has now appealed this decision on grounds that her conduct was permissible under the First Amendment.

"Carter's words encouraging Roy's suicide, however distasteful to this Court, were protected speech," wrote her lawyers in a recently filed brief. "A criminal law that penalizes a person who encourages another person to commit suicide cannot survive strict scrutiny."

Carter wasn't present for the suicide of her boyfriend, Roy Conrad. But she communicated with him on the phone shortly before he attached a water pump to his car and poisoned himself with carbon monoxide. Carter had previously urged Conrad to go through with it, though her lawyers argue it was never definitively established that she egged him on at the very end, when he was actually taking the steps to kill himself.

She later told a friend that Conrad's suicide was her fault, though it's possible she just said that for attention. She is clearly a very disturbed person, as was Conrad.

But is she a killer? As I wrote in an op-ed for The New York Times a year ago, her conviction runs afoul of the First Amendment:

Ms. Carter's conduct was morally reprehensible. But—at least until today's ruling—it was clearly legal. While some states criminalize the act of convincing people to commit suicide, Massachusetts has no such law. Moreover, speech that is reckless, hateful and ill-willed nevertheless enjoys First Amendment protection. While the Supreme Court has carved out narrowly tailored exceptions for literal threats of violence and incitement to lawless action, telling someone they should kill themselves is not the same as holding a gun to their head and pulling the trigger. Nor is it akin to threatening to kill the president, which is specifically prohibited by law—and in any case, only considered a felony if done "knowingly and willfully." (Merely expressing hope that the president dies isn't enough.)...

For decades, efforts have been underway to criminalize every obnoxious or problematic social interaction between K-12 kids in American schools. Hardly a week passes without a national news story about teenagers who were arrested on child pornography charges—and face unfathomably long prison sentences—because they had inappropriate pictures of classmates (or even themselves) on their phones. In Iowa, in June 2016, authorities tried to brand a 14-year-old girl as a sex offender for Snapchatting while wearing a sports bra and boy shorts. The following month, Minnesota police officers busted a 17-year-old for swapping consensual sexts with his 16-year-old girlfriend. Such matters should be handled by parents and teachers, not the cops. The same is true for the various issues that plagued Ms. Carter and Mr. Roy.

Carter is despicable. But defending free speech means protecting even vile expression from prosecution.

Photo Credit: Glenn C. Silva/Pool/ZUMA Press/Newscom

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Don't look at me.||

    Innocent. Words are not weapons.

  • Chipper Morning Baculum||

    Of course words can be weapons. Hiring someone to commit murder, for example. But there was no crime committed in this case.

  • John||

    Or words used to commit fraud.

  • loveconstitution1789||

    Fraud involves personal financial gain using false information.

    Lying is protected by the 1st Amendment, unless you agree via contract to tell the truth under oath.

    Lying along with personal financial gain has that criminal action element.

    Another reason that its bogus that police can lie to you but you cannot lie to police. If you signed a contract to not lie that is one thing.

  • 0x1000||

    Someone's forgetting their social contract...

  • Quixote||

    No, fraud does not merely involve "personal financial gain using false information." See the documentation of our nation's leading criminal "satire" case at:

    https://raphaelgolbtrial.wordpress.com/

    It's truly foolish to pretend that well-established laws are not really laws, and that this "First Amendment" nonsense we keep hearing about allows anyone to engage in inappropriate "speech" regardless, for example, of the embarrassment caused to distinguished faculty members at NYU. Fortunately, the great American nation is not a "democracy," but a well-ordered system of oligarchical liberty, where certain basic rules of civility are enforced by legal and academic authorities whenever the need arises.

  • Sevo||

    "See the documentation of our nation's leading criminal "satire" case at:

    You've been peddling this crap for years and seemingly, YOU are the only one concerned about it, so it seems it is not a "leading" case.
    Here's a hint: Tell me why I should click on that blind link, 'cause otherwise, it is not going to happen.

  • Quixote||

    Sevo is of course more than welcome to ignore the documentation of America's leading criminal "satire" case. I hope he will also join me in preventing as many readers as possible from clicking on the link to this outrageous "opinion" piece by one of those left-wing academic "free speech" advocates:

    https://forward.com/opinion/385050/

  • loveconstitution1789||

    You are talking about hiring someone to kill another human. Until that person kills the other human, you should be covered by the 1st Amendment. After someone is killed, you're just as liable as the killer.

  • jcw||

    that's not how this works, actually.

    You should go read up on conspiracy.

  • loveconstitution1789||

    As I said in my post below: "Part of this problem is when the USA pushed conspiracy as a crime worse than actual crimes. Talking about crime should be covered under the 1st Amendment. Talking with others about crimes should be protected."

    Conspiracy is unconstitutional under the protections of the 1st Amendment.

  • jcw||

    My comment is below. I won't be copying.

  • loveconstitution1789||

    No prob. We were discussing the same topic in two different areas.

    *I blame Reason anyway

  • operagost||

    No, communicating with a hired gun is not a weapon. The gun is. We have specific laws regarding conspiracy so that those who hire killers don't get off.

  • Diane Reynolds (Paul.)||

    What about pens? Pens are mightier than swords, or so I've been told.

  • Chipper Morning Baculum||

    The penis can be a sword.

  • Don't look at me.||

    Don't cross swords!

  • sharmota4zeb||

    Yeah, if you don't believe me, just ask Zeb.

  • Tony||

    I'll take The Rapists for $200, Alex.

  • Chipper Morning Baculum||

    Doesn't paying someone to rape you imply consent, therefore not making it rape?

  • sharmota4zeb||

    Doh, that explains my ketubah.

  • Tony||

    Ah the semantic conundrums of BDSM.

  • Elias Fakaname||

    You ARE a rapist Tony, you fucking chickenhawk. And in the spirit of this article, go drink your Drano.

  • Eman||

    It took me a minute to figure out what s-word you meant, but what happened next blew my mind!

  • loveconstitution1789||

    Never mess with someone who uses ink by the barrel.

    Never mess with someone who can equip an army.

  • damikesc||

    Yes. She may have been mean...but mean ain't illegal.

    Unless she shot him, his death is, ultimately, not her fault.

  • VOTE MILES||

    I'm really torn over this.

    I firmly believe that people have the right to say the most vile and odious things. But this case seems to cross a line from mere expression or even advocacy to an act of violence mediated by language.

    Do we want to say that people are free to tell children that Drano is fun to drink? Or to falsely assure a blind person that the road is safe to cross?

    My instinct is to err on the side of freedom. But I wish nothing but a lifetime of suffering on this woman.

  • Cathy L||

    Despicable, for supporting her boyfriend? Give me a fucking break. The life cult is a little over the top with this shit.

  • Ariki||

    Not what I expected.

  • operagost||

    Turtlerolled.

  • Chipper Morning Baculum||

    Think about it. If you are religious, and believe in an afterlife, suicide has to be an unforgivable sin. Otherwise, all religious people would simply commit suicide or be exposed as deep hypocrites.

  • loveconstitution1789||

    Some religions dont devalue suicide.

    Christianity does not like suicide.

  • damikesc||

    Christianity views it as throwing away God's gift to you personally which is a rather deep affront to Him.

  • loveconstitution1789||

    I always crack up about that since God also gave some people brains that work well. When you weigh life quality vs suffering, why not die? That is using your brain to weigh issues.

    They use the term "sheep" a lot, which is supposedly what God wants people to be. No thanks.

    I have no problem "answering for my sins" and start by saying that: I was supposed to not use the brain that God gave me but follow religious leaders like a sheep?

  • Chasman1965||

    All sheep don't follow blindly. A flock of sheep isn't an orderly group of obedient creatures. That's just what us non-farm people think.

  • ||

    Religion as interpreted through the impeccable logic of Chipper Morning Baculum's lens.

    You're no Renè Descartes, that's for sure.

  • Chipper Morning Baculum||

    Thank God for that.

  • Mark22||

    Otherwise, all religious people would simply commit suicide or be exposed as deep hypocrites.

    That may be true for some forms of Christianity, not for "all religious people".

  • ||

    Robby can't resist moralizing. It's nowhere near as annoying as Shikha's hyperbole...but it's still annoying.

  • Jerryskids||

    Robby can't resist moralizing. To be sure, It's nowhere near as annoying as Shikha's hyperbole...but it's still annoying.

    Get it right!

  • DajjaI||

    Good and I hope she wins. Yes she is a bully and her behavior was despicable. But anti-bullying laws will only end up getting weaponized against the people they were intended to protect. Because it's too easy to trick vulnerable people into retaliating, and then using that as 'proof' that they were the aggressor. Anyway both these kids are victims of the mental illness industry, which is the real villain here.

  • Bill||

    Was she a bully? Or did she just tell him on a few occasions to go ahead
    and do it after listening to him tell her for years that he wanted to?

  • Juice||

  • Tony||

    Oh good. I was waiting for this ruling before I began Hannibal Lectering this stupid bitch I know.

  • Citizen X||

    If that goes as well as all of your interactions here, her life will actually get better.

  • damikesc||

    You're going to bring her into a room for some rando to toss man goo on her?

    ...well played.

  • Tony||

    It could be a number of things, really.

  • Elias Fakaname||

    Tony, why not just kill,yourself? Then you don't have to wake up to a country where Trump is president.

  • Paulpemb||

    He's already dead anyways, what with the tax cut, repealing net neutrality and all the other mass genocides Trump has committed since taking office. Might as well make it official.

  • Diane Reynolds (Paul.)||

    Moreover, speech that is reckless, hateful and ill-willed nevertheless enjoys First Amendment protection.

    There's an entire major political party that begs to differ.

  • ||

    There's an entire at least one major political party that begs to differ.

    FIFY

  • Unicorn Abattoir||

    Except for them, of course.

  • loveconstitution1789||

    Innocent. No crime committed.

    I am hoping that RBG croaks from old age. No Mind-Crime should ever be acceptable under the US Constitution.

    Part of this problem is when the USA pushed conspiracy as a crime worse than actual crimes. Talking about crime should be covered under the 1st Amendment. Talking with others about crimes should be protected.

    Committing a crime is where the Constitution no longer protects you.

    Its also allow people to back out of committing crimes that were discussed and not be criminally liable. If the idea is to get people to not commit crimes, then give them as many chances to never commit a crime.

    That and less crimes on the books would be good.

  • OpenBordersLiberal-tarian||

    RBG has been a fantastic justice, and one of the many reasons I voted for Hillary Clinton is I wanted to see more SC nominations similar to her. Did you know a healthy 27 year old tried doing RBG's daily workout routine, and he barely got through it? She'll still be there when the next Democratic President takes office in 2021. Or sooner.

  • Chipper Morning Baculum||

    Ok, that was funny. I give you props when you do well.

  • jcw||

    I agree that talking with others about crimes should be protected. However, I think that certain actions should certainly successfully be used to charge someone with a crime. For example, if X hires a hitman to kill Y, and X actuates her intent with money paid to the hitman, I personally think that's crossed the threshold from 1A to conspiracy (an actual crime).

  • loveconstitution1789||

    Once the action of murder is committed, the cause and effect is there. That murder would not have happened had you not hired someone to do it.

    The next question would be which is worse, the killer or the hitman employer?

  • jcw||

    That's not my question. My point was that I think conspiracy actually makes sense as a crime with certain requirements satisfied.

  • loveconstitution1789||

    The big fault of conspiracy that conflicts with the 1st Amendment is never committing a crime after all the planning and discussion about committing a crime.

    With conspiracy laws, you can be prosecuted even if you never follow through on the crime. Conspiracy crimes tend to be so general that a party to the conspiracy following through on any act in furtherance of the conspiracy is a violation.

    Example of bank robbery. Two guys plan and decide what they need to commit the crime of bank robbery, which is theft. One of the guys buys tools to get into the safe, that is a violation of conspiracy statutes in many jurisdictions. Even if they never actually rob the bank.

    Prosecuting people is supposed to be hard and police dont like that, so they got politicians to invent mind crimes.

  • jcw||

    Okay.

  • loveconstitution1789||

    Under that bank robbery example, if the two guys do actually rob the bank, then feel free to introduce the fact that they planned the robbery and bought tools to effect the robbery. Let a judge decide to give a harsher sentence for the planner of the crime.

    There are people in prison for discussing committing criminal activity with one or more other persons.

  • Get To Da Chippah||

    If A hires B to kill C and B either doesn't go through with it or outright fails in the attempt, lack of competence or will on the part of B should save A from any criminal penalties despite the murderous intent A clearly displayed? That's like saying attempted murder shouldn't be a crime, since by definition no murder happened.

  • Hugh Akston||

    Committing a crime is where the Constitution no longer protects you.

    Right, except for the whole thing about due process, trial by jury, being informed of the charges, the right to legal defense, the protection against self-incrimination, the protections against excessive bail and cruel and unusual punishment.

  • loveconstitution1789||

    I did not mean to imply that defendants do not get protection during the criminal prosecution phase.

    The Constitution protects you from even being charged with a crime.

    Then if you are charged, the Constitution protects you during the prosecution phase.

    The Constitution even provides some protection after you have been convicted and are in custody of the state.

    Ideally, the Constitution prevents you from even having to endure a criminal prosecution.

  • Cathy L||

    So what you're saying is, you were completely full of shit above.

  • loveconstitution1789||

    You're always full of shit, so there's that.

    In fact, your comment smells like shit.

  • Elias Fakaname||

    Cathy, you're pretty awful. Now apologize to LC for your impertinence.

  • OpenBordersLiberal-tarian||

    But defending free speech means protecting even vile expression from prosecution.

    Well, it depends how vile. I wasn't familiar with the details of this case, but the First Amendment should not be absolute. See, for instance, Reason contributor Noah Berlatsky's Is the First Amendment too broad? The case for regulating hate speech in America.

    You can certainly make the case that Michelle Carter is not guilty of a crime. OTOH, if she had said something like "You should kill yourself because you're a POC / Muslim / transgender / any other marginalized group," and the person went through with it, she should at least be prosecuted for hate speech.

  • Don't look at me.||

    No such thing as hate speech.

  • Don't look at me.||

    Oops, didn't realize it was our best troll.

  • Longtobefree||

    Tony will get you for that

  • perlchpr||

    I have seen absolutely no evidence that Tony is clever enough to put on the OBL performance.

  • Tony||

    Trump's cock nugget is probably so tasty. I want to pee on him someday. *Masturbates to Trump*

    There, I did a rightwinger.

  • Jack Klompus Magic Ink||

    And that's pretty much as clever as you'll ever be, you fucking retard.

  • 0x1000||

    OTOH, if she had said something like "You should kill yourself because you're a POC / Muslim / transgender / any other marginalized group,"

    OMG, did you just assume his race? You don't know what he identifies as.

  • Longtobefree||

    Or she could be guilty of conspiracy to commit a felony. Federal crime.

  • Unicorn Abattoir||

    Shouldn't have been tried in the first place. Roy Conrad acted on his own, regardless of what she said.

  • Don't look at me.||

    It's a she said , he's dead case.

  • DenverJ||

    Plus one

  • Echospinner||

    Risk factors for suicide from the CDC

    Risk Factors

    Family history of suicide
    Family history of child maltreatment
    Previous suicide attempt(s)
    History of mental disorders, particularly clinical depression
    History of alcohol and substance abuse
    Feelings of hopelessness
    Impulsive or aggressive tendencies
    Cultural and religious beliefs (e.g., belief that suicide is noble resolution of a personal dilemma)
    Local epidemics of suicide
    Isolation, a feeling of being cut off from other people
    Barriers to accessing mental health treatment
    Loss (relational, social, work, or financial)
    Physical illness
    Easy access to lethal methods
    Unwillingness to seek help because of the stigma attached to mental health and substance abuse disorders or to suicidal thoughts


    Protective Factors

    Effective clinical care for mental, physical, and substance abuse disorders
    Easy access to a variety of clinical interventions and support for help seeking
    Family and community support (connectedness)
    Support from ongoing medical and mental health care relationships
    Skills in problem solving, conflict resolution, and nonviolent ways of handling disputes
    Cultural and religious beliefs that discourage suicide and support instincts for self-preservation

  • Unicorn Abattoir||

    *dives out of the way before Dajjal runs over me to comment.

  • Longtobefree||

    Local epidemics of suicide (?!)

    Whiskey
    Tango
    Foxtrot

    Oh, wait. The CDC. Federal program. Never mind.

  • Michael S. Langston||

    Oddly enough within special cirumstances, one suicide has sparked copy cats. And it's usually locale specific when it happens.

  • Incomprehensible Bitching||

    Remember Jonestown!

  • TrickyVic (old school)||

    Yelling fire in a crowded theater is not protected speech because people that hear it may take an action that cause harm (trampling).

    If that is the guide, I don't see how her speech is protected.

    Disclaimer: I think saying fire in a theater is free speech. I disagree with the courts

  • Longtobefree||

    Just for the record, it is FALSELY yelling fire in a crowded theatre - - - - - - - -
    If it is true, yell away.

  • TrickyVic (old school)||

    Sure.

    But false speech is usually protected.

  • gaoxiaen||

    But wait until you have one foot out the door.

  • DenverJ||

    Actually, it is legal to yell "fire" even if there isn't one.

    The idea of falsely shouting "fire" in a crowded theater arose from the Supreme Court's 1919 decision in the case Schenck v. United States. The Court ruled unanimously that the First Amendment, though it protects freedom of expression, does not protect dangerous speech. In the decision, Oliver Wendell Holmes wrote that no free speech safeguard would cover someone "falsely shouting fire in a theater and causing a panic."

    The case in question did not involve fires, theaters or general panic. It instead concerned a man's conviction for protesting the First World War's military draft. The man, Charles Schenck, had printed 15,000 fliers that encouraged readers to resist conscription. The Espionage Act of 1917 and the Sedition Act of 1918 criminalized such an offense, said prosecutors.
    This "clear and present danger" standard stood for half a century. Further rulings even expanded it, criminalizing additional speech. But the Supreme Court then heard a case involving a new example of questionable speech, one that modern sensibilities might find more controversial than war protests
  • DenverJ||

    Charles Brandenburg, a Ku Klux Klan leader, had spoken to group members at a televised Ohio rally. He'd used inflammatory language and racial slurs. He'd called for "revengeance," which Ohio prosecutors interpreted as a call to violence. This meant, said the prosecutors, that Charles Brandenburg had broken the law.

    A statute, which the state had enacted the same year as the Schenck decision, criminalized the advocacy of crime or violence. The victims of any possible crime this speech incited would face even clearer danger than patrons fleeing a crowded theater.

    Yet Brandenburg claimed the First Amendment protected his speech. His appeal reached the Supreme Court, and the Court agreed with him, in contrast with the earlier Schenck decision. Advocacy, even when it encourages law-breaking, helps the marketplace of ideas, ruled the Court. Had Brandenburg instructed followers to commit a specific crime, he'd have committed a number of offenses himself. But the First Amendment protects speech that merely advocates general, indefinite illegal action.

    With that ruling, the Court overturned the Schenck decision that had introduced "shouting fire in a crowded theater." No longer was "clear and present danger" a sufficient standard for criminalizing speech. To break the law, speech now had to incite "imminent lawless action."
  • loveconstitution1789||

    Last time we discussed this topic, someone came up with a great idea. Make causing a panic by yelling fire, where there isn't one, a violation of the terms of the contract to enter a concert or theater.

    I prefer the Constitution protections to be very black and white, so end 1st Amendment exceptions like "yelling fire in a theater" once and for all.

  • TrickyVic (old school)||

    I agree

  • Unicorn Abattoir||

    Yes, USSC boned the Schenk case (which had nothing to do with yelling fire in a crowded theater anyway).

    However, yelling fire in a crowded theater could panic people in the face of a threat that doesn't exist. Michelle Carter told Roy Conrad to do something, which he then did by his own free will. There was no illusion of threat. He had a choice.

  • Mark22||

    Yelling fire in a crowded theater is not protected speech because people that hear it may take an action that cause harm (trampling).

    It's unclear whether even that is true.

  • TrickyVic (old school)||

    I would hope it's not.

  • Unicorn Abattoir||

    Yes, USSC boned the Schenk case (which had nothing to do with yelling fire in a crowded theater anyway).

    However, yelling fire in a crowded theater could panic people in the face of a threat that doesn't exist. Michelle Carter told Roy Conrad to do something, which he then did by his own free will. There was no illusion of threat. He had a choice.

  • Unicorn Abattoir||

    The squirrels agree with me and have decided to revisit the Kelo decision next.

  • Echospinner||

    On a more positive related note. Suicide or unintentional overdose due to addiction is a major problem as we know.

    I noticed signs up recently about a new program adopted by our police department and others in the area.

    They are calling it safe passages.

    You simply show up to the police department and tell them you have an addiction and need help.

    You will not be searched or charged with any crime.

    They will sit down with you and get you to one of treatment centers they have partnered with.

    I think it is a great idea.

  • Unicorn Abattoir||

    You will not be searched or charged with any crime.

    That's real nice of them, since having an addiction isn't a crime and doesn't constitute probable cause.

    Of course, now they know who you are and can hassle you every time they see you.

  • Echospinner||

    If it were up to me it would all be decriminalized and we would have something like they did in Portugal.

  • Elias Fakaname||

    Decriminalize drugs.

    Criminalize progressivism.

    Execute Tony.

  • sharmota4zeb||

    I once mentored a lad who asked me early in the relationship if he could call me should he ever feel suicidal. I told him, "Sure, but as a libertarian, my response will be, 'More power to you.'" After that, his will to live got stronger. I still remember the day he told me the story of his first shank.

  • Jerryskids||

    But defending free speech means protecting even vile expression from prosecution.

    Unobjectionable speech doesn't need protecting, nobody's objecting to it. It's only objectionable speech that needs protecting, it's sort of the way the language works.

  • Qsl||

    Dunno.

    One the one hand, you have verbal abuse being a mitigating factor when someone kills their spouse. You also have the concept of "fighting words" as an inducement towards some type of action (although I'm not really familiar with the case law in those instances).

    So you have enough legal precedents to at least make a claim, so the question becomes what is so special about this instance to break with all the other infringements on the first amendment?

    *I have no feelings one way or the other, but do question when the law is being unevenly applied.

  • Brynjo||

    I look forward to hearing how court rules on this appeal.

    There are numerous exceptions to 1st Amendment's protection of private speech from governmental infringement.

    I think US courts (including Supreme Court) have ruled that inciting immennent lawlessness, or violence, are not protected by 1st Amendment.

    While suicide by carbon monoxide poisoning is not bloody and is self inflicted, to extent it quickly and certainly causes death, that seems to qualify as imminent violence.

    To that extent first amendment would not seem to provide a defense. Are the words themselves, absent first amendment protection, a crime? Perhaps conspiracy, murder, manslaughter, reckless endangerment.

    Though I self assess myself as a first amendment extremist, this case is not a mountain I'd choose to die on...

  • Fooseven||

    I had an ex girlfriend call me up asking for a ride to hospital because she "took something" and I couldn't tell if it was bullshit or not, but decided not to go over there. She is still alive today, from what I know.

  • Sevo||

    "I had an ex girlfriend call me up asking for a ride to hospital because she "took something" and I couldn't tell if it was bullshit or not, but decided not to go over there."

    Very wise move. Had you done so, you were then 'involved' in whatever she had done, and you had no 'involvement' other than her call.
    Tell her to call 911.

  • Fooseven||

    Yeah that's what I kept telling her, call your mom call an ambulance etc. Felt like I was being manipulated more than an actual emergency.

  • John C. Randolph||

    I think that justice would be well served if she were simply shunned for the rest of her life.

    -jcr

  • General_Tso||

    If the person that ends up offing themselves was known by the person encouraging them to it to have 'mental illness' (and by today's standards who doesn't?) would that make a difference?

  • DesparateReasoning||

    I think the lawyer has a point. First, to all the people who keep talking about nailing her for conspiracy etc, if a 1st Amendment challenge survives, then it doesn't matter what Carter was convicted for, it will be thrown out as the successful 1st Amendment challenge will supersede that.


    The only way Carter could lose is if the court applies the Brandenburg Test and finds her speech to be not protected, ie:


    The speech is "directed to inciting or producing imminent lawless action," AND
    The speech is "likely to incite or produce such action."


    The problem for the prosecution, is that the act of committing suicide is no longer a criminal act in any state. Almost all states make it a crime to assist, but that seems to me to be an untenable claim, especially in an attempt to pass the Brandenburg balancing test.

  • OGREtheTroll||

    See you're all looking at it through his actions and not hers. If she had done the actions she convinced the boy to take she would have been guilty of murder. If she had convinced a third person to do to the boy what he did to himself then she'd be guilty of incitement to commit murder. But since she convinced the boy to do it to himself she is innocent? Surely the perverse incentives that arise from such an application are readily apparent; just right off the top is for a beneficiary of a life insurance policy convincing the insured to commit suicide (yes these payout usually after a certain amount of time).

    Dress it up all you like under First Amendment grounds, but incitement and conspiracy have never been protected speech nor should they be. The only reason this has a potential to be protected speech is because of the self-harm aspect; take that away and the First Amendment arguments fall apart. But convincing someone to do an act that would be a crime for you to do but not for them to do is not a shield from criminal or civil liability.

  • gdanning||

    Exactly. If my girlfriend talks about killing her parents, and I discuss with her ways to do it, and encourage her to do so when she tries to back out, and the jury finds that my speech caused her to go through with it (which is what the judge found here), I can argue that the evidence wasn't strong enough to show causation, but I can't very well argue that I have a free speech right to aid and abet a murder. Why, then, should I have a free speech right to help her kill herself? That makes no sense. It is possible that what she did does not technically violate Mass law, but the free speech argument doesn't fly.

  • KH||

    As a thought experiement, how would the First Amendment apply if she'd used a different (and more common) vulnerability?

    Maybe instead of goading/shaming/castigating him, she simply waited until he was standing next to a high ledge or busy roadway and then snuck up behind him and yelled "BOO!" Let's assume for the sake of argument that she knew him to be easily startled.

    That would be similar in a few ways:

    - Nothing but words are involved on her part.
    - He has to make a mistake that he knows is a mistake.
    - She can estimate the chance that he'll die, and she knows that it's fairly high.
    - She carefully planned it to achieve that specific end.

  • Unicorn Abattoir||

    RTFA

    While some states criminalize the act of convincing people to commit suicide, Massachusetts has no such law.

  • KH||

    Eat your own soup. She was convicted of involuntary manslaughter, not assisting suicide.

    From here: https://bit.ly/2zCDzMx

    "New England Law Professor David Siegel said the court will weigh whether the texts sent by Carter qualify as reckless actions leading to predictable loss of life -- a legal requirement for a involuntary manslaughter conviction."

    They also added this interesting tidbit: "A source close to the prosecution told MassLive that the District Attorney's Office could not have charged Carter with reckless endangerment. The reckless endangerment statute in Massachusetts only applies to minors, and Roy was 18 at the time of his death."

    I can't vouch for any of that, nor have I found an authoritative source for the definition of involuntary manslaughter under MA law. Findlaw says this:

    "1) An unlawful killing that was unintentionally caused as the result of the defendants' wanton or reckless conduct;

    or

    2) An unlawful killing that resulted during the commission of a dangerous battery by a defendant."

    (https://bit.ly/2JmheCk)

    [I hate the 1500 character limit on this forum...]

  • KH||

    ...but the section they cite doesn't include that text. Instead it says this:

    "Whoever commits manslaughter shall, except as hereinafter provided, be punished by imprisonment in the state prison for not more than twenty years or by a fine of not more than one thousand dollars and imprisonment in jail or a house of correction for not more than two and one half years. Whoever commits manslaughter while violating the provisions of sections 102 to 102C, inclusive, of chapter 266 shall be imprisoned in the state prison for life or for any term of years."

    (https://bit.ly/2uuATe1)

    Regarding the Brandenburg Test (mentioned by others earlier), here's the text from the ruling:

    "Neither the indictment nor the trial judge's instructions refined the statute's definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.

    "Held: Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

    (https://bit.ly/2aJMaBq)

  • KH||

    That's substantively different from the way @DesparateReasoning summarized it earlier. The court held that "mere advocacy" is protected unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action," but Ms. Carter's involvement extended beyond mere advocacy to planning and execution.

    If Findlaw is correct, then you could argue that it wasn't an "unlawful killing" (since suicide isn't a crime in MA), but that's a consequence of MA law and not of Brandenburg. Also, a lot of states (most? all?) allow involuntary detention to prevent self-harm, so the fact that suicide is non-criminal may not make it 'lawful.' (I don't have a strong opinion.)

  • KeithO||

    You narrow view of the 1st amendment from inside a vacuum is pathetic. It has been established through the Supreme Court that not all speech is protected. 1st, it is not protected if a reasonable person can infer that harm will come. That is depraved indifference at the very least. She also understood that he was suicidal, therefore calling for him to go through with it, is tantamount to yelling fire in a crowded theater, which provokes mass ciaos. She told him to do it, kill himself, which is inciting violence. She told him to do it, 'it' being illegal, which is called conspiracy.

  • BillEverman||

    Can you cite the Massachusetts statute or federal law that makes suicide illegal?

    For that matter, can you cite any statute or case law that makes "yelling fire in a crowded theater" illegal?

  • Anomalous||

    I think this is apropos here.

  • Window Cleaning Spokane||

    Yes. she is a bully and her behavior was despicable. But anti-bullying laws will only end up getting weaponized against the people they were intended to protect.

  • B Wilds||

    The biography of distinguished federal court of appeals judge Henry Friendly reports that he committed suicide in his 80s because, suffering from a variety of ills that were not disabling and did not prevent him from doing his judicial work, he was afraid that he would become disabled and when that happened he would be unable to end his life though desperately eager to do so.

    If able to pre-arrange a painless physician-effected death to occur when he reached a specified stage of disability, he would not have killed himself when he did. I use this example because this man was not considered a "flake or unhinged" but what most of us would consider normal. Many reasons exist as to why someone might want to die. More about this subject in the article below.

    http://brucewilds.blogspot.com.....death.html

  • macsnafu||

    I can think of a few people to whom I'd like to say go jump in the lake. I can only hope that they would take my advice.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online