Michelle Carter, the 17-year-old Massachusetts women who urged her 18-year-old boyfriend to “do” the suicide he was contemplating, was convicted of involuntary manslaughter. Her case is now on appeal, and Robby Soave at Reason reiterates the First Amendment argument against her conviction for speech.
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.
There’s no Massachusetts law criminalizing the conduct of inciting a person to commit suicide. Indeed, there is no crime of committing suicide in Massachusetts.* As Carter wasn’t present and engaged in no conduct relating to her boyfriend’s suicide, was her conduct criminal?
For decades, efforts have been underway to criminalize every obnoxious or problematic social interaction between K-12 kids in American schools.
Few would defend Carter’s conduct as anything other than reprehensible, but lawyerly detachment is wasted in the tears of her moral despicability. Feel the horror on your own time; this is about the law. And yet, even a zealous First Amendment defender has occasional feelings.
The “break” notwithstanding, the question is why, what exception to the First Amendment would make this speech unprotected, since saying it is meaningless (even if you like what was said) without basis. Unsurprisingly, many people shared this sensibility, wanting this to be unprotected speech because they felt this too horrible to not be criminal, but horrifying and exhausting isn’t a rule of law.
Marco’s response was Brandenburg v. Ohio, which held that incitement to imminent lawless conduct was not protected. But there are some problems with hanging your hat on incitement. The first, and most obvious, is that suicide isn’t a crime. That’s not odd at all if you think about it. So is incitement to commit an act that may be horrible, but not illegal, unprotected speech?
More curious is the effort to twist and contort the vagaries of incitement to create new crimes by people otherwise inclined to fight overcriminalization. On the one hand, we have too many crimes, and particularly too many crimes that people don’t feel should be crimes. On the other, a sad story and suddenly they’re bending over backwards to manufacture a crime where none exists, and at the expense of the First Amendment by bending an exception out of shape to make it fit?
And then there are the unintended consequences of the same “rule” they try to create to fit the Carter case, which would then be applicable to others. For quite some time, the idea of assisted suicide for the terminally-ill, pain-ridden elderly has been promoted as a positive right. Must people suffer until nature takes its course, or should they be entitled to die with dignity? That, with fewer adjectives, is suicide. Except it’s suicide without the sad story piece, but with the piece that makes us cry tears for the poor person forced to endure misery in life rather than choose his own bodily autonomy.
So when an elderly person asks his children what he should do, whether they support euthanasia, and they urge their beloved parent to take his life, are they, like Michelle Carter, committing involuntary manslaughter? Is their talk with their parent to express their feelings on suicide unprotected as well. Are these the people you want to put in prison, as you do with Carter?
The power of appeals to emotion and such vagaries as morality are strong, and even lawyers have found it too easy to let go of their detached perspective to devolve to the sad, teary-eyed masses to conform legal arguments to match their feelings. Where before other lawyers would smack them in the head, they now all hold hands and share a good cry together. And hence, we’re left with lawyers doing whatever they can to rationalize their way around the law to achieve the outcome that feels right. And instead of castigation for being all squishy about law and reason, they get likes and tummy rubs for their feelz.
If you wonder how and why we’ve succumbed to overcriminalization, to unprincipled carceral distinctions based not on the means but on the ends that appeal most to our emotions, this is how. It takes little effort to travel down the squishy path, and there is no shortage of people urging us to take that route, even though it’s constitutional suicide.
*As Sheldon Gilbert raised, there may have been an English common law crime of committing suicide for the purpose of forfeiting the deceased’s estate to the crown, which in Virginia may potentially still be criminal as the state hasn’t arrogated common law crimes under its statutory scheme. There remains a huge inferential leap between the two that does not support the conclusion that suicide is a crime in Virginia, but regardless, it’s of no relevance to Massachusetts law.