First Amendment doesn't cover badgering a suicidal teen into killing himself, court rules

The Supreme Judicial Court today rejected claims by Michelle Carter that urging her suicidal boyfriend, in both text messages and on the phone, to finish himself off are covered by the First Amendment.

The ruling means Carter will have to serve a 15-month jail sentence for her role in the death of Carter Roy in 2014. It's the second ruling by the state's highest court in her case - in the first, the justices ruled she could be tried for his death.

Carter's lawyers argued, among other things, that her conviction in 2017 violated her rights to free speech under the First Amendment and the equivalent section of the Massachusetts state constitution, by punishing her for the contents of her texts over several days urging Roy to follow his thoughts of suicide to the end, and for the phone call in which she convinced him to get back in the pickup truck he'd rigged to fill with carbon monoxide after he had second thoughts.

In its ruling, the state's highest court said that crimes can be committed through speech and that the First Amendment has long been held to have exemptions for speech that causes or is part of a criminal act.

[N]o constitutional violation results from convicting a defendant of involuntary manslaughter for reckless and wanton, pressuring text messages and phone calls, preying upon well-known weaknesses, fears, anxieties and promises, that finally overcame the willpower to live of a mentally ill, vulnerable, young person, thereby coercing him to commit suicide.

The court explained further:

The crime of involuntary manslaughter proscribes reckless or wanton conduct causing the death of another. The statute makes no reference to restricting or regulating speech, let alone speech of a particular content or viewpoint: the crime is "directed at a course of conduct, rather than speech, and the conduct it proscribes is not necessarily associated with speech" (quotation and citation omitted). Commonwealth v. Johnson, 470 Mass 300, 308 (2014). The defendant cannot escape liability just because she happened to use "words to carry out [her] illegal [act]." Id. at 309, quoting United States v. Barnett, 667 F.2d 835, 842 (9th Cir. 1982). See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949) (upholding conviction for speech used as "essential and inseparable part" of crime). ...

As the Supreme Court has explained, "From 1791 to the present . . . the First Amendment has permitted restrictions upon the content of speech in a few limited areas . . . which have never been thought to raise any constitutional problems," including "speech integral to criminal conduct" (quotations and citations omitted). Stevens, 559 U.S. at 468-469. We do not apply the narrow tailoring required by strict scrutiny in these contexts but rather determine whether the speech at issue falls within these "well-defined and narrowly limited classes of speech" (quotation and citation omitted). Brown v. Entertainment Merchants Ass'n, 564 U.S. 786, 804 (2011). Thus, there is nothing in the prosecution or conviction of the defendant in the instant case, or the prior involuntary manslaughter cases in the Commonwealth involving verbal criminal conduct, to suggest that the First Amendment has been violated in any way. The only verbal conduct punished as involuntary manslaughter has been the wanton or reckless pressuring of a vulnerable person to commit suicide, overpowering that person's will to live and resulting in that person's death. We are therefore not punishing words alone, as the defendant claims, but reckless or wanton words causing death. The speech at issue is thus integral to a course of criminal conduct and thus does not raise any constitutional problem.

The court dismissed the claim that by punishing Carter for her messages, it would be limiting other discussions that would be covered under the First Amendment, such as about euthanasia and the end of life:

[E]ven if we were to apply strict scrutiny to the verbal conduct at issue because it might implicate other constitutionally protected speech regarding suicide or the end of life, we would conclude that the restriction on speech here has been narrowly circumscribed to serve a compelling purpose. As we explained in Carter I, 474 Mass. at 636, and reemphasize today, this case does not involve the prosecution of end-of-life discussions between a doctor, family member, or friend and a mature, terminally ill adult confronting the difficult personal choices that must be made when faced with the certain physical and mental suffering brought upon by impending death. Nor does it involve prosecutions of general discussions about euthanasia or suicide targeting the ideas themselves. See Texas v. Johnson, 491 U.S. 397, 414 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable"). Nothing in Carter I, our decision today, or our earlier involuntary manslaughter cases involving verbal conduct suggests that involuntary manslaughter prosecutions could be brought in these very different contexts without raising important First Amendment concerns. See Commonwealth v. Bigelow, 475 Mass. 554, 562 (2016) ("In considering the First Amendment's protective reach, critical to the examination is the context and content of the speech at issue" [quotation omitted]). We emphasize again, however, that the verbal conduct targeted here and in our past involuntary manslaughter cases is different in kind and not degree, and raises no such concerns. Only the wanton or reckless pressuring of a person to commit suicide that overpowers that person's will to live has been proscribed. This restriction is necessary to further the Commonwealth's compelling interest in preserving life. Thus, such a prohibition would survive even strict scrutiny.