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How Do We Measure The Influence Of Rhetoric On Action?

It is impossible to deny that speech can cause harm, but direct regulation of harmful physical actions is preferable to indirect regulation of harmful conduct by censoring or criminalizing speech.

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Michelle Carter (Photo by Pat Greenhouse/The Boston Globe via Getty Images)

After exhausting all appeals at the state level, Michelle Carter — who was convicted of involuntary manslaughter for urging her depressed boyfriend Conrad Roy to commit suicide — has petitioned the United States Supreme Court to decide her case. Because there is a split among the states whether words that encourage another to commit suicide alone can be criminalized, I expect or would at least find it helpful if the Supreme Court took this case and settled the dispute. In my opinion, the Supreme Court should also take the case in order to overturn a flawed First Amendment precedent established by Massachusetts courts. In order to understand the flaw, however, we will need to get into the necessary legal background.

Although states can and do criminalize assisted suicide, Massachusetts had no such statute at the time Carter was convicted. Moreover, although assisted suicide was/is a common law crime in Massachusetts, as with many state statutes, the common law was explicitly tailored around doctor-prescribed suicide. Accordingly, Carter’s case is inapplicable to all Massachusetts’s law relating to assisted suicide because unlike doctor-prescribed suicide, Carter neither provided the means nor physically participated in the act. In fact, it was the older Roy alone who would research the method of suicide, obtain the means to do so, and in the end, physically carry out an act he had attempted multiple times before. In other words, it was Carter’s speech alone that formed the basis of her conviction, but not for the crime of assisted suicide as many might think. Rather, Carter’s conviction was based on a common law standard of behavior categorized as wanton and reckless “verbal conduct” constituting involuntary manslaughter.

Creating a category of “verbal conduct” within common law involuntary manslaughter allowed the Massachusetts courts to argue Carter’s speech belongs within the supposedly but not really at all well-defined and narrowly limited “speech integral to criminal conduct” federal exception to free speech protection. And it is the decision by the Massachusetts courts to place Carter’s speech within this unconstitutionally vague state court-created category of wanton and reckless “verbal conduct” that is the flaw I mean to identify in this piece.

That a conviction for involuntary manslaughter could be maintained based on speech alone is a troubling precedent for federal free speech protection without even having to look at how narrowly tailored the state common law is. As Robby Soave explained in a 2017 column for the New York Times after Carter was initially convicted by a trial judge:

[S]peech 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.)

Judge Moniz’s verdict is a stunning act of defiance against this general principle. By finding Ms. Carter guilty of involuntary manslaughter—rather than some lesser misdeed, such as bullying or harassment—the court has dealt a blow to the constitutionally enshrined idea that speech is not, itself, violence.

Ultimately, however, it appears as though the U.S. Supreme Court may decide the case on whether the standard set by Massachusetts for Carter’s conviction is too vague as to what constitutes criminal speech relating to suicide to adequately inform not only the public, but law enforcement. In the petition, Carter’s lawyers take a great deal of time to stress that the Massachusetts courts have “offered no clear, meaningful, and constitutional way to determine” the line between criminal and permissible encouragement of suicide. Moreover, the Massachusetts Supreme Judicial Court acknowledged that not all instances of encouraging suicide are the same. Accordingly, per Carter’s petition:

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The only thing standing between defendants, like Carter, who face prosecution for involuntary manslaughter and individuals who are considered to have helped their long-suffering loved ones die with dignity is the mercy of a prosecutor. Putting such great power in the hands of prosecutors not only risks nonuniform execution of that power across time and geographic location but also threatens to undermin[e] the necessary confidence in the criminal justice system, because the public fears arbitrary prosecution (internal citations omitted).

Perhaps most importantly, recent Supreme Court jurisprudence has shown us that the majority of the Court will strike down vague criminal laws that “provide no reliable way to determine which offenses qualify as crimes” as a violation of constitutional due process. Carter’s petition may therefore be strong as it devotes quite a bit of time to this point.

In my view, Carter’s words should be held insufficient to sustain an involuntary manslaughter conviction under the First Amendment because no involuntary manslaughter standard that could convict based on words alone could ever be theoretically narrowly tailored enough so that it did not criminalize vast amounts of socially healthy speech. Additionally, direct regulation of physical conduct is always preferable to criminalizing indirect speech. This is because direct regulation can be consistently shown to be “more effective” at ameliorating harms. In fact, the Supreme Court has for nearly a century understood that removing morality-based repression of speech furthers the “avoidance of class conflict, the protection of private property, and the perpetuation of free markets.” Direct regulation also has undeniably “fewer collateral consequences for socially useful information.” Finally, direct regulation is simply “more transparent, leading to greater political and moral accountability” than a court-created common law standard susceptible to wildly different levels of accountability can provide. We will have to wait and see if the Supreme Court agrees to take this complex case.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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