Constitutional Law

The Life And Death Power Of Speech

Are words that encourage others to commit suicide protected speech? The state of Massachusetts says no.

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Michelle Carter

Last week, the Supreme Court of the state of Massachusetts upheld a jury’s verdict convicting Michelle Carter of involuntary manslaughter for encouraging, through a series of text messages, her boyfriend Conrad Roy to commit suicide. This case has become controversial not only because of the First Amendment legal issues involved, but also due to the disturbing nature of the speech in this case.

As a legal matter, states can criminalize assisted suicide, but at the time, Massachusetts had no such law. Moreover, criminalizing assisted suicide has traditionally been targeted at preventing doctors from prescribing lethal doses of medication to help patients die. This makes Michelle Carter’s case rather unique in that prior to her conviction, no defendant had “ever been convicted for encouraging suicide where the defendant neither physically participated nor provided the means.” It was Carter’s words alone that formed the basis for her conviction.

The Massachusetts Supreme Court, however, found no free speech violation in Carter’s conviction. In the court’s view, Carter’s encouragement was a prey upon the “well-known weaknesses, fears, anxieties and promises” of Conrad Roy that finally overcame his will to live. In other words, the Massachusetts Supreme Court felt Carter’s words amounted to an acceptable standard of criminal coercion of an individual the court describes as being “mentally ill, vulnerable,” and “young.”

I believe the Massachusetts Supreme Court decision to be wrong. But before I address why, I should first try to point out that in making the case that Carter’s speech should be protected, I am not trying to diminish the moral repugnance of Carter herself. And most importantly, I understand that my opinion probably sounds disingenuous to some because I am not directly impacted by Carter’s words. Similar to my principled opposition to the death penalty, I recognize that my principles may not hold up if I or someone I love becomes a victim of a heinous crime. Nevertheless, I want to believe that I will keep to my principles, and the self-evident principle of free speech is that even the most morally repugnant forms deserve protection.

The defense of Carter, however, does not rest on principle alone, when taken together, the facts of the case also present a strong presumption that Carter’s conviction should be overturned. For example, it was Roy, not Carter who researched the method of suicide and obtained the materials necessary to do so. What should also be a troubling fact of this case is that the description used by the Massachusetts Supreme Court of the victim Roy could just as easily be applied to the defendant Carter. In fact, Carter was younger than Roy, and due to her own disturbing behavior, appears to possess many of the same mental illnesses and vulnerabilities.

Of course, unlike Roy, Carter’s behavior was objectively repulsive. Moreover, courts have long dismissed the same mental instabilities and vulnerabilities in criminal defendants before, especially defendants who do not look like Carter. However, repulsive speech — even the most repulsive, hateful, and reckless speech — has consistently been granted free speech protection.

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Additionally, the claimed interest that Massachusetts is trying to uphold, right or wrong, in convicting Carter is better served by direct regulation such as criminalizing assisted suicide. Direct regulation should be preferred because it can be more transparently tailored “to physical or transactional effects.” Whereas, when states try to prohibit or criminalize speech, this creates more unintended problems because of the unique properties of speech.

For example, as Robby Soave at Reason and the ACLU illustrate, the precedent that Massachusetts has set could easily be applied in the future to criminalize “families and doctors discussing end-of-life options for the terminally ill.” The simple fact is, the harms that come from speech, like the benefits, are very difficult to decipher and the state has a poor track record of identifying or predicting the serious outcomes of speech.

This difficulty is why the Supreme Court has accepted only “well-defined and narrowly limited” exceptions to free speech protection such as obscenity, defamation, fraud, incitement, true threats, and speech integral to already criminal conduct. In its opinion, the Massachusetts Supreme Court identified Carter’s speech as in the categorical exception of being integral to criminal conduct, but again, at the time, Massachusetts had no law prohibiting assisted suicide. Therefore, in order for Carter’s speech to be held integral criminal conduct, the court determined Carter’s speech itself was illegal. This appears to me as circular reasoning by the court in order to reach a desired outcome and it illustrates the serious deficiencies of applying this exception with any predicable scope or clarity.

Carter’s speech in this case is undoubtedly contemptible, but I have serious doubts that her speech makes her criminally responsible for Roy’s conduct. Carter’s lawyers have less than a month to petition the United States Supreme Court, and I hope the Court takes this very complex and important case.

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Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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