Carter and the Squishy First Amendment

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.

33 thoughts on “Carter and the Squishy First Amendment

  1. Richard Kopf


    Offhand, I think you are correct. Unless there was a state statute that, for example, made criminal the act of materially assisting a person in the commission of suicide it is difficult for me to see how the First Amendment would not be a defense. Absent such a law (as I understand was the situation in Mass.) the case should have been thrown out at the pleading stage.

    With such a statute in place through repeated encouragements of the kind at issue in the instant case to commit suicide might well sink a First Amendment defense at the pleading stage. Then, the difficult question would be how to instruct the jury about the meaning of phrases like “material assistance.”

    All the best.


    PS Aiding and abetting the commission of suicide might be a sufficient predicate crime if it explicitly referred to the commission of suicide. (“It shall be unlawful to aid and abet the commission of suicide.”)

    1. SHG Post author

      It appears that pre-trial motion practice in this case might have fallen a bit shy of excellence, and so this matter wasn’t adequately addressed beforehand. As is so often the case, the quality of lawyering affects outcome.

  2. Keith

    The argument that life can be taken at all, nothwithstanding for a moment — a requirement for those that advocate for compassionate end of life assistance, is that the person must be of sound mind, whose life is being ended. We wouldn’t allow that act for someone that can’t comprehend the decision or that didn’t decide to do so of their own volition.

    Was Carter’s boyfriend or the next person that may be in this situation of sound mind when deciding to end their life? If not, did that encouragement create a situation that might not have otherwise occurred?

    If a person knows another to not be in the right state of mind and knows that their words can and will lead directly to that person ending their life, I fail to see how the words aren’t as deadly as a bullet and aimed with precision.

    And yet, I’m very concerned about how that would affect one’s ability to speak without criminalizing what they say based on outcomes.

    So I agree with Marco, but only a bit more than I agree with you.

    1. SHG Post author

      You make some huge assumptive leaps in here to reach your conclusion. If that’s okay, then it’s okay when others do it as well. Are you sure you want other people to indulge in assuming whatever supports their value-laden end result? You might not always find the outcome to your taste.

    2. LocoYokel

      Gonna dive down the rabbit hole here a bit to take advantage of SHG’s desire for smoked meat and to poke a hole in one of your assumptions. You make this comment;

      ” a requirement for those that advocate for compassionate end of life assistance, is that the person must be of sound mind, whose life is being ended”

      Here is the issue I have with this – Can a person dying of cancer or some other terminal illness who is in constant or near constant pain, and taking multiple medications with various side effects really be said to ‘sound of mind’? I know when I have a migraine I am not myself and I think most people would admit that when they are in severe pain or are in the midst of an extended illness that they are not themselves and may make decisions that they may not make if they were in better health. How much more so if they believe that taking their life would end the misery and free their loved ones from continuing to deal with the situation?

      Note that I am not against voluntary end of life discussions and self determination, quite the contrary. I just want to poke a hole in a basic assumption. I think we need to really ensure that this decision is a person would make if they were not in the current situation. Maybe register some type of pre-determination similar to a DNR order.

  3. Nick Corduan

    I’m taking a bit of a risk here as a non-lawyer, but I’m posting this to learn, not to be affirmed. I have no emotional need to punish someone. I prefer to give folks the benefit of the doubt and I prefer to understand the First Amendment pretty broadly. That said, I was curious about the Massachusetts perspective on suicide as it applies here and did some quick layman’s research into the case law. I would love to know if these cases apply or if I’ve missed some keys to understanding or simply not done deep enough research.

    In these two cases the court affirmed a state interest in preventing suicide:

    Superintendent of Belchertown State Sch. v. Saikewicz, 370 NE 2d 417 – Mass: Supreme Judicial Court 1977
    Brophy v. New England Sinai Hospital, Inc., 497 NE 2d 626 – Mass: Supreme Judicial Court 1986

    In this case, the court affirmed that suicide is not a crime, but it did uphold the charge of manslaughter, considering it reckless disregard to taunt a mentally unbalanced person into a suicidal act:

    Persampieri v. Commonwealth, 175 NE 2d 387 – Mass: Supreme Judicial Court 1961

    1. SHG Post author

      For the ridiculously reasonable price of $25,000, I will be more than happy to read the cases and provide you with a memo as to their significance. You can pay at the paypal button on the right. Thank you for your patronage.

    2. Skink

      Because I don’t want to yet do as I must today, I read your cases. I’m not better for it, but rejoice that any non-lawyer made such an effort as opposed to just positioning because it sounds right.

      The answer is negative to all. The first two deal with the power of a third person, a GAL and a wife, to order the withholding of treatment to terminal patients. The courts found that to be proper, and in the decades since, that rule is universal. The third has the actor telling the “victim” to kill herself, loading the rifle and giving it to her. In legal terms, us lawyer types consider that “shit-load different.”

      This is my good deed for the whole year. SHG did two good deeds earlier this year, so he isn’t due until at least 2020. Now, send him a doughnut. But you should be prepared for him to think you’re calling him a fat-fuck for doing so.

      1. Nick Corduan

        Thanks, that actually helps me understand better how the overall application of precedent works, with importance being placed not on discrete details linked to general truths, but with more complete attention to the comparability of the contexts, etc… I was honing in very specific statements within the cases and I see why you’re saying.

        You may not be better for reading them, but I do appreciate that you took the time to do so. I’ll be better lay-reader of legal news and opinion for this lesson. Truly.

        1. SHG Post author

          A little knowledge is dangerous. It’s unlikely that you’re any better equipped to understand law, but your Dunning Kruger is lit.

            1. Nick Corduan

              It’s a gamble based on my inferences from various comments threads, but since all I’m doing is adding perspective to my own reading and not taking it as legal advice or something for me to pontificate on, it’s a gamble I’m willing to take. I may learn other things later that inspire to me revise my knowledge further and I will keep in mind, too, that I may know nothing that I think I know in terms of understanding the law.

              If I ever need legal advice, I’ll get a lawyer. If I ever want to teach people, it will be in a field I’m formally trained and experienced in. Since this is just me, trying to be a better-informed reader and citizen, I’ll gamble a little.

  4. B. McLeod

    Part of the new-laws-to-enforce-gentrification movement. No longer are we to tolerate crowds standing around, heckling a potential jumper on a ledge. Every one of them must be run in for their crass attitudes and disrespect of human life. Just have the Court imply it as a speech “exception,” based on more “evolving social standards”. We will need a similar exception to the right of association, so we can jail everyone who goes to a prize fight or auto race or acrobatic performance in the hopes of seeing someone die. That’s just too horrible to tolerate. Fortunately, we live in this gilded age of intellectuals, where “evolving social standards” are practically the same as the constitution, if not of even greater dignity.

    1. David

      “heckling a potential jumper on a ledge”

      This reminds me of Chris Rock’s bit about a suicidal black kid on a ledge. The police down below: ” Don’t jump! We gonna shoot you down!”

  5. Nemo

    One aspect that doesn’t seem to have been mentioned WRT encouraging suicide is how laws are subject to mission creep. When “hate crime” legislation was initially proposed, the slippery-slopers were mocked, because there was no possibility of anything really bad happening as a consequence. Anyone who suggested that such legislation might lead to laws protecting cops from things a protected-class might say while they are being arrested would have been derided.

    While I grok where Mr. Randazza’s coming from, I rather doubt he wishes to face charges for telling someone who has irritated the hell out of him to “go die in a fire”, or perhaps simply “drop dead”.

    I may not know much about specific laws, but even I can produce a list of examples of such creeping. Lawyers should be able to produce even longer lists, but then, “should” may indicate wishful thinking on my part.



  6. PseudonymousKid

    Dear Papa,

    What MA really needs is a new law named after the “victim.” “Conrad’s Law” will do just fine. They can’t let the next Carter potentially go free, can they? One ruined life isn’t enough. With Conrad’s Law in place we sneaky lawyers with our crafty “loopholes” like the 1st Amendment will be put in our places.


  7. PseudonymousKid

    Gah. You’re the worst. Carter is obviously guilty just like everyone else. You only want to use the magic of the law to let her off the hook. That means you’re sneaky to most. Now get out of the way so we can put Carter in the stocks already, or do you really want my rotting vegetables to go to more waste?

  8. ExpatNJ

    In this modern age, with its non-traditional Judaeo-Christian beliefs and ‘religions’, “Go to Hell” may no longer apply. These ideas suggest Michelle Carter IS wholly innocent, with how “Astral Projection”, Reincarnation – along with other ‘alternative quantum realities’ – are postmortem possibilities.

    IOW, the boyfriend did not ‘die’ – and could not have committed suicide – in the traditional sense; he merely was falsely pressured to prematurely move to another plane of existence. Shouldn’t this case, therefore, be moved from a Criminal court to a Civil proceeding?

    The task for her attorney, albeit not a simple nor easy one, becomes to prove that. One would hope wherever he is, he could be subpoenaed …

    1. Skink

      Go back to whatever world you’re visiting from. This Hotel will not tolerate you. You will be worse for the interaction. We’re mostly lawyers; you’re not. You will feel humiliated, and you will cry. Contrary to popular perception, we don’t want to make people, even dopes, cry. I hope you save yourself, though I don’t know how that will happen.

      It appears my respite of compassion has ended.

  9. Bryan Burroughs

    While I would agree that the “imminent lawless action” is absurd here, I think a statute could be written which would survive strict scrutiny that allows exemptions for discussions about end-of-life planning, and solicited discussions about suicide for terminally-ill individuals, especially if done in the context of physician-assisted suicide.

    Such a statute doesn’t exist here, though, so the conviction should be overturned.

  10. ElSuerte

    I wonder if elder and dependent adult abuse laws would cover some of these types of cases.

  11. kemn

    As much as I want to disagree and join the “Hang her from the rafters!” crowd, you’re right. It does (or should) fall under Free Speech protections. (unless you want to consider it under “incitement to riot”).

    However, his heirs/family should have one heck of a civil case here…(I know, wrong blog)

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