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Killing Words and the First Amendment

Throughout the two-year history of the Massachusetts case in which a young woman was charged with involuntary manslaughter for encouraging her boyfriend to commit suicide, there was a nationwide discussion of the implications of the case for free speech under the Constitution’s First Amendment.

Defendant Michelle Carter, aged 17 at the time of Conrad Roy’s death, was convicted last month, and her sentencing date has been set for August 3. The case involved her repeated text messages urging Roy to commit suicide, which he did on July 13, 2014 by fashioning a device to allow carbon monoxide to fill the cab of his pickup truck.

Carter was not present at the scene. The Massachusetts trial court found that she was guilty of involuntary manslaughter because she “instructed” Roy to go through with the suicide and did not alert anyone who could have stopped it. The court essentially ruled that her words killed the 18-year-old.

She will certainly appeal on the traditional legal definition of involuntary manslaughter, and whether that definition fits the facts of her case. But it is no less certain that her appeal will involve the First Amendment. What role, if any, did her constitutional right to free speech play in the case?

As it happened, the U.S. Supreme Court handed down two significant and relevant free speech cases—both decided unanimously—just days after Carter’s June 16 conviction.

In Matal v. Tam, an Asian American rock group sought to have its name, The Slants, registered as a trademark. The group explicitly sought to reclaim the word “slants” from its biased and derogatory usage and meaning. The U.S. Patent and Trademark Office refused the group’s trademark application under a provision of trademark law that prohibits trademarks that disparage or hold in contempt “any persons.” The High Court overturned the patent office’s decision, with Justice Alito, writing for the majority, stating that government may not prevent “speech expressing ideas that offend,” and quoting Justice Oliver Wendell Holmes that the First Amendment protects the freedom to express “the thought that we hate.”

The decision in Packingham v. North Carolina, involving a registered sex offender’s ability to prowl the Internet for new victims, unanimously rejected a North Carolina statute. The statute made it a felony for convicted and registered sex offenders to access social media websites that minors are known to use. Under it, a sex offender was convicted for posting an everyday and non-menacing Facebook post having nothing to do with sex or the possibility of a sex crime. Writing for the Court, Justice Kennedy criticized the law as “a prohibition unprecedented in the scope of First Amendment speech it burdens.” Kennedy compared cyberspace to a public park and held that government could not completely bar the exercise of First Amendment rights on the Internet, which, he said, has now become “integral to the fabric of our modern society and culture.”

The notion that words by themselves can constitute a crime like manslaughter seems to be unprecedented. The comparison that immediately comes to mind is the advent of “hate crimes” legislation over the past three decades. So far, the Supreme Court has resisted attempts to make hate crimes free-standing word crimes. In federal criminal law, and in the law of most states, a “hate crime” is either an additional element in a free-standing or underlying crime, or an enhancing consideration at the time of sentencing.

The constitutionality of “hate crimes” laws has been in question at least since R.A.V. v. City of St. Paul (1992), in which the Supreme Court unanimously overturned St. Paul’s criminal ordinance that had served as the basis for the convictions of some teenagers for placing a burning cross on the property of a black family. The Court said the ordinance prohibiting certain conduct based on race, color, creed, religion, and gender violated the First Amendment by prohibiting speech “solely on the basis of the subjects the speech addresses.” But the next year, in Wisconsin v. Mitchell (1993), the Court unanimously upheld a hate sentencing enhancement, not a separate crime, based on a conviction for a racially inspired assault. The Court said that it targeted conduct, not speech.

By way of contrast, in 2003, in Virginia v. Black, the Court, by a vote of 7 to 2, ruled that a Virginia statute prohibiting the burning of a cross with the intent to intimidate was constitutional under the First Amendment because it did not single out any particular purpose or content of speech, and because it focused on “cross burning’s long and pernicious history as a signal of impending violence.” The statute was not based on any particular content, the Court said. However, there was no majority opinion, and the plurality opinion, concurring opinions, and a dissenting opinion all overlapped in their analyses.

Before the trial of Michelle Carter was to begin in Massachusetts, her attorneys sought to have the charge against her dismissed as legally insufficient under the normal definition of the crime of involuntary manslaughter, and as a violation of her constitutional right to free speech. But the Supreme Judicial Court of Massachusetts, after engaging in a lengthy analysis upholding the involuntary manslaughter charge, avoided the free speech issue almost entirely.

In one short footnote, the court cited a Massachusetts case, a Minnesota case, and only two Supreme Court cases. Even then, the reference to Brown v. Entertainment Merchants Association (2011) seemed an inherent contradiction: the Brown decision struck down on free speech grounds a California statute prohibiting the sale or rental of violent video games. The other Supreme Court case that was mentioned, Washington v. Glucksberg (1997), seemed similarly out of place because it was not a First Amendment case, although it dealt with the subject of suicide. In that case, the Court upheld the state of Washington’s then-law prohibiting physician-assisted suicide.

Carter’s was a criminal conviction under state law; thus the appeal of her conviction for involuntary manslaughter, and any additional appeal based on the First Amendment, will be decided by Massachusetts’ Supreme Judicial Court. Since that court has already snubbed the First Amendment issue in its prior ruling, there might not be a free speech issue to appeal to the U.S. Supreme Court. That means the conviction of the words of Michelle Carter will stand as a national precedent.

Reader Discussion

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on July 26, 2017 at 08:37:33 am

Question: Although the Free Speech argument my not be appealable to SCOTUS under the conviction appeal, would it be appealable under the initial appeal lodged by Carter's attorney's pre-trial? Or was this not ever, or now not, as a separate post-conviction appeal?

Its a tragic story for the boy and his family, regardless of how one views the conviction of Carter. It's also a tragic implication of who we have become as a people and a culture. Can it now be that that old adage about, "sticks and stones...", in this present day of hyper-sensitivity, hyper-pc-, safe spaced, trigger warned culture, that speech, words actually have become weaponized? In my view, the original and underlying truth must bear-out, that they can not.

Regardless, it must be said, this case is very telling about the state of culture, the vital need there is a nation, to roll-back the heated, nasty rhetoric, and to somehow recover at least some, by whatever secularization of the message may be demanded, appreciation for the Golden Rule.

This case may also be quite a telling indicator of the success secular "anti-bullying" school programs are having on influencing civil behavior.

If it does come to the consensus that speech can in fact become weaponized, perhaps Carter's attorneys may consider an appeal under the Second Amendment...

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Paul Binotto
on July 26, 2017 at 10:52:50 am

In 1962, Supreme Court Justice Hugo Black said, “My view is, without deviation, without exception, without any ifs, buts, or whereases, that freedom of speech means that you shall not do something to people either for the views they have or the views they express or the words they speak or write.” I wholeheartedly agree.

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MikeyParks
on July 26, 2017 at 11:32:30 am

Agreed, the free speech issue was raised along the way, although minimized so much by the Mass. SCt in its interlocutory decision that I referred to. Review by SCOTUS would be discretionary. -- T. Ascik

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Thomas Ascik
on July 26, 2017 at 15:28:21 pm

I have a problem with her encouragement. She wanted him to commit. She pester him to do it. Did nothing to prevent or call for assistance. Now an attorney and many others say that she is not guilty? In the court of public opinion she is guilty as hell. May the lord have mercy on her, even thou many of us think she deserves what's coming to her and I hope is no less than a mandatory 20 years w/out parole.

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Abelardo Aguilu
on July 26, 2017 at 15:43:47 pm

I will concede, she is most certainly guilty of being and acting as, a despicable human being. Was her speech protected by the U.S. Constitution, I tend to think it was, and rightly so, as ugly as she acted and as tragic and senseless as this young man's death was.

You are good to solicit the Lord's Mercy for her, she will need it, and hopefully she will reform her life.

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Paul Binotto
on July 26, 2017 at 16:01:39 pm

OK - a hypothetical:

Let us suppose that this was not some misguided (now that is euphemistic) 16 year old urging the boy on but rather, the boy's pyschotherapist / school counselor, etc. Putting aside the AMA or Amer Psych Assoc actions possible, could a plausible argument be made that the therapist / counselor was indeed guilty of manslaughter and that no First Amendment objection(s) would / could obtain against such a conviction?

Just thinking out loud here but the DYNAMICS would be quite different; and IF such a conviction were to be sustained WHAT then of the claimed First Amendment rights?
Counterpoint:

Are we to assert then that !st Amend rights may be reducible to one's particular occupation. An odd outcome to be sure?

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gabe
on July 26, 2017 at 18:01:59 pm

Are you referencing in your hypothetical, Physician Assisted Suicide, where a health-care worker may encourage a wavering "patient" to not to back down?

I would have to think, it wouldn't be reduced to the occupation, but to the duty owed, (of course, in a perfect world, everyone would agree we all have a duty to be our brother's keeper, but that isn't our world), in the hypothetical you describe.

If a psychiatrist were to badger a perfect stranger who did not even know he/she was a psychiatrist, to kill themselves, and they did (proximately to the badgering), perhaps it could be argued he was exercising protected 1st Amendment right as a citizen to free speech, despite how ugly and unforgivable. However, on the other hand, if the psychiatrist was treating the suicidal person, and thus bearing a duty to that person, it may rise to this heightened level and not be protected speech.

I am not so sure what happened in this case rises to "crying fire in a crowded theatre" in terms of foreseeability of consequences to render it unprotected speech.

The girl clearly had a humanitarian duty to seek help for this young man, and she clearly acted in an ugly manner, and let me make it clear, I have no sympathy for the position she now finds herself in, she deserves it, but does this rise to Involuntary manslaughter? I'm not convinced, regardless of her age, although youth "may" only mitigate culpability, that the circumstances fit the crime, or that her speech isn't protected.

As Abelardo Aguilu rightly says above, "In the court of public opinion she is guilty as hell", and this may be the only court she can justifiably be convicted under our Constitution. And, of course, her own conscience (if she has one) and that final one to which we all must answer.

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Paul Binotto
on July 26, 2017 at 23:29:03 pm

The Supreme Court has already stated that incitement to violence does not gain First Amendment protection. Yes the person she, Michelle Carter did incite Conrad Roy to commit violence not against another, but to himself.

There is no duty to be a good Samaritan and help those in need, but there are consequences under the law for egging one on to harm. Yelling at someone on a ledge high above to jump is not a legal use of free speech.

Michelle Carter is the proximate cause of a young man's death, and I would argue the so called fact, that it was involuntary.

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Michael Kupperberg
on July 27, 2017 at 09:11:47 am

This essay and string of commentary offers insights well beyond Free Speech protections. It really speaks to what the role of government should be in a free-society and what the role of the individual and family.

Above I propose a statement, perhaps better posed as a question: "This case may also be quite a telling indicator of the success secular “anti-bullying” school programs are having on influencing civil behavior. " - By it, I am not advocating eliminating these programs, or even revising them, although personally I could support either of these options.

I am making the broader policy statement, that morality cannot be legislated or a product of public school policy. Certainly, the government and schools have a role to play in promoting and reinforcing moral behavior in young people, but morality training MUST begin and be the primary function of family.

Oh, sure, you can pass laws that require people to act in a certain manner, to stop someone from stepping off a cliff, to call the Police when a crime in progress is being witnessed. Or, prohibit a particular type of speech. But, this does not make a moral people. It may make an obedience people; it may make a resentful people, but not a moral people who will do the "right thing" for its own sake.

Most people, regardless of their religious affiliation, or even if they have none at all, have at least heard of Jesus's admonishment, ""Then render to Caesar the things that are Caesar's; and to God the things that are God's." (Matthew 22:21, NASB).

It seems to me, this is nowhere more relevant, than in our current day, and under the current Administrative State mindset in operation in so much thought today, where it is seen as a good for government to displace family. Of which, the case of Sweet Little Charlie Gard is a most glaring and horrendous illustration.

And, I think the Framers of the U.S. Constitution intended for this to also be their admonishment for what makes good government of a moral people. Although I personally would argue for acknowledged and more open role for God in society and culture, and that an intact religious family can best produce moral children; but I do concede, even a moral atheist's family can produce moral children.

The making of a moral people requires giving to Caesar what is Caesar's to be sure, but more so, it more so requires the giving to the Family what belongs rightly to the Family.

And, this especially means giving (back to) the Family the primary responsibility for instilling moral behavior in their children, and for government to support, promote and protect a family's right to do so, and to never undermine or deny families of their core function.

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Paul Binotto
on July 27, 2017 at 10:29:43 am

First amendment rights in this case? The many comments on both sides will hang a jury pool? Sure she has the rights,, but try to collude those rights in this case will go just so far, very important to notice is that " Your first amendment Rights END where MINE Start ". In other words what she did to encourage him by talking and telling him to do it over and over " could " be accepted as her right, but talking about who is going to defend the rights of the person affected. Her rights go so far, after that she for sure crossed that line of no return, that is causing a murder. Not reporting it?

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Abelardo Aguilu
on July 27, 2017 at 11:07:55 am

Good points. I could only assert, that first and foremost, it is an individual's duty, and then government's, to protect his/her own right to free speech (and it can be argued, this also means, by not abusing it).

Accepting that this young man was obviously mentally and emotionally disturbed to be on the brink of taking his own life and to follow through on it, this state of mind likely making it difficult or impossible for him to think and act rationally, and perhaps owing to him a greater duty of protections. And, too, that the young woman was/is also deranged mentally, emotionally, and certainly morally, to have acted in such a despicable heartless manner, but more likely more capable to act rationally, would perhaps include the holding of her to this level of culpability for not intervening on his behalf, and/or for encouraging fatal behavior.

But, it would seem (to me at least) imprudent to shift blame to this level under the circumstances of this case as I understand them (which I admit is not extensive beyond this essay), and thereby, not only jeopardizes 1st Amendment protections, but neither does it seem to properly and fully assigning personal responsibility for the consequences of one's own actions. It seems we as a society are chronically discounting, or have begun to completely abandon the notion of personal responsibility for personal actions. In my view, not a good thing even in the most heart wrenching of circumstances.

If this is a case about failing to provide duty where a legal (the moral duty is obvious, but not withstanding) duty has been created, then I am more apt to support the prosecution and the conviction. Conversely, if this case was prosecuted as, or is subsequently exploited to garner support for the weakening of the 1st Amendment protections of free-speech, I would be extremely hesitant to support, on these terms, the prosecution or conviction.

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Paul Binotto
on July 27, 2017 at 11:49:59 am

Being a despicable human being is not a crime.

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jbsay
on July 27, 2017 at 11:58:22 am
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Paul Binotto
on July 27, 2017 at 12:07:52 pm

Can someone commit homicide against themselves? Why then not go for the greater charge of willful homicide? Or not charge her with assisted suicide?

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Paul Binotto
on July 27, 2017 at 14:23:54 pm

Respecting opinions all ready been given on the website, one thing comes to mind in relation to the excuse of free speech. Some will try to excuse her on those grounds, but really I can see that our own decaying society is helping her and would try to give her a pass on this one, coming out w/tall tales and excuses, but in the end is that the government in part w/the help of some groups are pushing for no criminal charges because they want the nation to become a banana republic, and nobody goes to jail. A new mental disorder instituted by the left in this country. This is just another opinion that came to mind.

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Abelardo Aguilu
on July 27, 2017 at 15:27:43 pm

Respectfully, I would forcefully argue the opposite; the desire to prosecute this young woman for her speech is likely more predicated on the desire to exploit (understandable) public outrage in order to weaken free-speech protections, thereby weakening our Republican Democracy so it may become more of a pure majoritarian democracy; a decidedly Progressive endeavor, not a Conservative one. If I argue for a strong 1st Amendment, it is not because I have an ounce of sympathy for this woman or because I want to keep her out of prison, it is because I fear a weakening of the 1st Amendment makes the Republic susceptible to the kind of abuse by those who would indeed wish to drastically weaken or even undermine the Constitution and the rule of law, much as is the norm of a so-called Banana Republic.

However, that "[a] new mental disorder instituted by the left in this country", has occurred, I would agree to that.

Furthermore, it should be noted, between roughly 1995 and 2016 Massachusetts Representatives attempted a least on eight separate occasions to place on ballot, or legislate form of legalized physician assisted suicide (PAS) through their Legislature, thus far without success. And one poll indicated 58% of its citizen's support of PAS. And, although the measure may be dormant for now, it certainly has not gone away. And I can predict with near certainty that the same people who called for this particular prosecution, and now are making political hay of it, are likewise, supportive of PAS.

The only real difference between how this woman acted and legalized physician assisted suicide is the level of hatred she employed in exploiting the young man's will to take his own life, and that of her not being a licensed physician sworn to "do no harm". The outcome certainly isn't any different - a dead person.

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Paul Binotto
on July 29, 2017 at 05:01:37 am

No its not. But telling somebody to commit murder is. People are in prison for hiring a hitman who was really an FBI agent. Their words alone was enough to convict, and no 1st amendment crisis arose from any of these cases. What she did was no different. She told him to murder somebody.

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stuart
on July 29, 2017 at 08:47:53 am

"Their words alone was enough to convict" - Respectfully, I would have to dispute this; In almost (every) sting operation, an arrest is not made until the suspect actually makes an effort to follow through on the crime, (i.e. when they attempt to exchange money). There is a reason for this: because words are not enough to convict.

Your analogy of soliciting a hitman to commit murder to badgering someone to commit suicide begs the question, can someone commit homicide against themselves? In my view, one cannot.

This case is a horrible example of self-centered, despicable disregard for another, but "feelings" cannot be substituted for rule of law. If a homicide did not occur as a result of her ugly behavior, a charge of homicide is not appropriate. If the legislature in response to this tragedy sees fit to expand the definition of homicide to include badgering someone to commit suicide, they have this as an option. And, I could even support it.

But someone can't be convicted of a crime, if the circumstances and facts of the action committed does not meet the definition and elements of the crime they are charged with, as I believe occurred in this case. In my view, feelings of (justifiable) outrage (and political appeasement), were substituted here for the rule of law. This amounts to little more than vigilantly justice.

Whatever she gets, she deserves, but this improper charging of crime, as a public policy in a free-society of laws cannot be permitted to stand; the consequences are too great and too detrimental to personal freedom and our system of governance.

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Paul Binotto
on July 29, 2017 at 08:51:18 am

Correction: "vigilante" justice.

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Paul Binotto

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