In March, the Supreme Court of Minnesota decided a case involving a criminal defendant who had used a false Internet identity (posing as a caring and knowledgeable female nurse who intended to kill herself) to actively encourage each of two depressed and suicidal people to kill themselves. One of the two targets hanged himself, as the defendant had urged him to do. The other jumped off a bridge, contrary to the defendant’s advice that she hang herself immediately (a method that would have allowed the defendant to watch the suicide via webcam).
The Minnesota Supreme Court ruled that two of the three activities that the law under which the defendant was prosecuted prohibited are actually protected by the First Amendment freedom of speech, as incorporated against the states via the Fourteenth Amendment Due Process Clause. The offending parts of the law, in the court’s analysis, prohibited a person from advising or encouraging another in taking the other’s own life. The valid part prohibited a person from assisting another in taking the other’s own life.
Though there was a dissent from the court’s decision, the dissent agreed with the court’s First Amendment invalidation of two parts of the statute and would have gone further to invalidate the entire statute, as applied to the defendant’s case, as a violation of the First Amendment. According to the dissent, even the prohibition against assisting a suicide could not validly be applied to a person whose involvement in a suicide consisted exclusively of speech. In this column, I will consider whether the Minnesota Supreme Court correctly decided the case.
Categories of Unprotected Speech
The Minnesota law at issue in State of Minnesota v. Melchert-Dinkel, states the following: “Whoever intentionally advises, encourages, or assists another in taking the other’s own life may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both.” The state supreme court, in analyzing the validity of the statute, under which William Francis Melchert-Dinkel was convicted, raises the question whether advising or encouraging or assisting suicide falls within one of the traditionally unprotected categories of speech, such as obscenity.
As the Minnesota Supreme Court explains, “the Supreme Court [of the United States] has long permitted some content-based restrictions in a few limited areas, in which speech is ‘of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality.’” [quoting Chaplinsky v. New Hampshire]. As the Minnesota Supreme Court observes (and as the appellant argued), the speech here potentially fits within one of three such categories: (1) fraud, (2) incitement to imminent lawlessness, and (3) speech integral to criminal conduct.
Is Encouraging Suicide Fraud?
One potential category of unprotected speech that might cover the defendant’s conduct is fraud. A person necessarily commits a fraud through speech: a fraudulent actor might tell a customer falsely that if the latter buys and drinks the potion that the fraudulent actor is selling, then the customer’s cancer will go into remission. To commit a fraud is to make a false claim, as the Minnesota court states, “to ‘gain a material advantage,’ including money or ‘other valuable considerations,’ such as offers of employment.”
Lying alone is not enough then. One must lie with the intention of inducing the listener to enrich the liar in some way, as a result.
How did Melchert-Dinkel potentially commit fraud? In online communications with his two targets, two depressed individuals considering suicide, the defendant presented himself as a caring and compassionate female nurse who was also going to commit suicide. In fact, the defendant was a male, was not a nurse, and had no plan to kill himself. His goal in making these false representations was to induce the two strangers to kill themselves by hanging, and to do so in view of a webcam so that he could watch them die.
The false representation aspect of fraud is clear in this case, because the defendant plainly lied to the targets about his identity, his expertise, and his plans. According to the Minnesota high court, however, there was no fraud because the defendant did not gain “a material advantage or valuable consideration from his false speech.” Lies that yield no enrichment for the defendant do not qualify as fraud.
The Minnesota Supreme Court is correct to note that not all falsehoods constitute fraud. For example, if you tell a friend that you cannot go to his birthday party because you have a competing obligation, but you actually have no such competing obligation, you will not be held liable for any sort of fraud. At the same time, in some sense, all lies are intended to get something for the liar—perhaps to create a positive impression on the listener (or to avoid creating a negative impression with the truth, which might be “I have nothing else to do that day but would rather watch paint dry than attend your birthday party”). Yet there must be something more concrete to be gained to constitute a fraud than the simple benefit of knowing that the lie’s recipient believes something untrue. Otherwise, the material gain requirement would have no effect.
In Melchert-Dinkel, is it accurate to say that the defendant sought nothing material from his deceptions? He certainly was not seeking the sort of gain that a normal person might seek, such as money or a promotion at work. What he sought, however, was the reward of having his targets commit suicide and, in particular, the opportunity to have them kill themselves by hanging in front of a web camera so that he could watch. His intended gain, while disgraceful and bizarre, is nonetheless a cognizable gain, as we can see if we consider a different market in viewable conduct.
Consider a person who visits a purveyor of films showing unwitting couples having sex in the purveyor’s hotel. Assume that the person pays the purveyor some amount of money and receives a password in return. The password enables the payor to sign onto a website where he can then watch a film of hotel guests having sex.
Many people would regard this transaction as reprehensible. However, it is clear that both parties to the transaction would regard it as an exchange of material benefits—one gained cash, and the other gained visual access to a sexual scene. What Melchert-Dinkel hoped to gain from his self-representation as an empathic and knowledgeable female nurse who was similarly planning to commit suicide was (and perhaps even motivated by similarly sexual urges): the opportunity to watch someone kill himself or herself. The Minnesota Supreme Court therefore could have upheld the statute—at least as applied to this defendant—as addressing a fraudulent act in pursuit of some gain, albeit of an unusual sort (one hopes).
Fraud, however, is admittedly not the ideal vehicle with which to defend the particular statute in this case. It is, after all, just happenstance that this defendant pretended to be a suicidal female nurse in his efforts to induce his targets to commit suicide. Much of the time, presumably, someone who advises or encourages or assists people in committing suicide, as the statute forbids their doing, will be speaking honestly and will thereby disqualify himself or herself from prosecution for fraud.
It is nonetheless clear that the statute was aimed at stopping people from engaging in such conduct, however honestly, and that fraud was not contemplated as integral to the conduct targeted by the law. Therefore, though the fraud category works better than the court envisioned in defending the prosecution of Melchert-Dinkel, it is not well-suited in general to defending the prosecution of those who advise, encourage, or assist others in killing themselves.
Is Encouraging Suicide Incitement?
Another option that the Minnesota Supreme Court considers is incitement to imminent lawlessness. According to Brandenburg v. Ohio, a prohibition against inciting or producing imminent lawless action would represent an exception to the First Amendment’s protection of freedom of speech (though the Court held there that the exception did not properly apply to the facts of Brandenburg itself). For example, if a speaker speaks in a manner directed at getting a listener all riled up to commit a specific murder right away, then the speaker can, without running afoul of the First Amendment, be held criminally (or civilly) responsible for such incitement, notwithstanding the fact that he was using words to accomplish the incitement.
This category seems a good fit for this case, because Melchert-Dinkel was saying the things he said in an effort to provoke each of his targets to commit suicide right away. This would appear to be a perfect example of incitement to imminent lawlessness, so why does the Minnesota court balk?
The answer is that, as the court explains, suicide is not a criminal act. Incitement typically refers to someone speaking in a manner so as to provoke the listener to violate the law; hence the phrase “imminent lawlessness” in incitement doctrine. If one is inciting another person to do something legal, however, then the incitement in question cannot qualify as “incitement” to imminent lawlessness. Or can it?
In answering this question, it is helpful to consider why suicide, which used to be a crime, is no longer classified as criminal. Some formerly criminal actions become lawful, because society comes to the realization, through moral progress, that there was never anything truly wrong with the conduct to begin with. Criminal laws prohibiting same-sex relationships fall into this category. Other formerly criminal actions, however, stop being criminal for different reasons. Where does the decriminalization of suicide fall?
In the past, suicide was understood as a crime similar to homicide—you must not kill yourself, because you are illegitimately taking a life. This view has changed, however, in response to a more enlightened understanding of depressive illness. The law currently reflects the view that suicide in most circumstances is a tragedy and not a crime. Rather than decriminalizing suicide because it is harmless, then, the change in the law reflects a more evolved understanding of suicide. Someone is suffering terribly and concludes that she cannot feel better, so she prefers not to live anymore. A person who commits suicide is, in that sense, a victim of a crime for which there is no perpetrator.
If we understand suicide in this way, as a “perpetrator-less” crime, then it no longer makes sense for the law to tolerate the incitement of suicide as protected free speech, when it would not similarly tolerate other incitement of violent conduct. The reason that we exempt incitement to lawless activity from First Amendment protection has nothing to do with the mens rea (guilty state of mind) of the recipient of the incitement; it instead has to do with the grave and immediate harm that is accomplished (without sufficient time for intervention) as a direct consequence of the inciter’s speech. The fact that one is inciting an act that falls within the criminal law is arguably neither necessary nor sufficient for application of the incitement exception to free speech.
Consider, for example, Justice Brandeis’s discussion of what would essentially amount to incitement of a trespass on land, in his concurring opinion in Whitney v. California:
[A] state might, in the exercise of its police power, make any trespass upon the land of another a crime…. It might, also, punish an attempt, a conspiracy, or an incitement to commit the trespass. But it is hardly conceivable that this court would hold constitutional a statute which punished as a felony the mere voluntary assembly with a society formed to teach that pedestrians had the moral right to cross uninclosed, unposted, waste lands and to advocate their doing so, even if there was imminent danger that advocacy would lead to a trespass.
Incitement, in other words, must result in a serious harm, not a mere technical violation of the law.
Conversely, a veritable cliché for the sort of speech that falls outside of the First Amendment’s protection is a person falsely shouting “fire” in a crowded theater. As Justice Oliver Wendell Holmes said for the Court in Schenk v. United States (an otherwise questionable opinion upholding the prosecution of people distributing written materials encouraging others to resist government efforts to enlist them in the military): “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Though the “clear and present danger” standard the Court announced there has given way to the “incitement to imminent lawlessness” standard of Brandenburg, I have yet to hear an argument from anyone that falsely shouting “fire” in a crowded theater now qualifies for First Amendment protection.
Why is this “shouting fire” example relevant? It is relevant because people running for their lives from a crowded theater after hearing “Fire” are not necessarily engaged in unlawful conduct in the sense of criminally actionable behavior. What makes inciting people to imminently stampede (by falsely yelling “fire” in a crowded theater) unprotected speech is the enormous injury and possible death that would result from such speech, just as inciting an imminent murder is unprotected speech because it would imminently trigger conduct resulting in a death. The fact that running from a theater might not be a crime, while murder is a crime is fundamentally beside the point: the outcomes are both grave harms, and the imminence of incitement speech means that pro-social intervention is highly unlikely.
It is indeed arguable that inciting a person who cannot be held criminally responsible for his actions is more—rather than less—dangerous than inciting a fully responsible person to act in a manner for which he can be held criminally liable, as in the case of incitement to imminent murder. This is because a responsible person can, by definition, more readily exercise a level of cognition and control that enables him or her to refrain from committing a criminal act, notwithstanding another’s incitement. By contrast, a person who is not fairly subject to being held responsible for what he is about to do—either because of circumstances (a panic) or because of the tremendous suffering that motivates a suicide—is likely to be far less able to resist the incitement that he confronts.
Is Encouraging Suicide Speech Integral to a Criminal Act?
The Minnesota Supreme Court rejects, as well, the notion that advising or encouraging a suicide represents an integral part of conduct in violation of a valid criminal statute. For the same reason that it rejects the application of the doctrine of “incitement,” it views this exception as inapposite, because there is no criminal act in a suicide, and encouraging someone to commit suicide therefore cannot be “integral” to a nonexistent criminal act. This exception indeed does seem inapposite, given its express reference to criminality, although one could make a case that suicide actually becomes a crime when someone other than the one who is killing himself plays a causal role—a perpetrator-less crime becomes a crime with a perpetrator. Yet incitement still seems the better choice, for the reasons I discussed above.
After ruling out the application of the various categories of unprotected speech, the Minnesota Supreme Court applies strict scrutiny (an extremely demanding constitutional standard) to the law in question and concludes that part of it passes this scrutiny, while part of it does not. The part that fails the test, which requires that a restraint on fundamental rights be narrowly-tailored to advancing a compelling governmental interest, is the prohibition on intentionally advising or encouraging another to commit suicide. The part that survives the test is the prohibition on assisting another in committing suicide.
The Minnesota Supreme Court concludes that the trial court’s judgment of conviction against Melchert-Dinkel was ambiguous as to whether the court had actually found the defendant guilty of all three forms of aiding a suicide, or whether it had found him guilty of only one or both of the two forms that constitute protected speech (advising or encouraging). The high court therefore sends the case back down for the trial judge to clarify his ruling and then act accordingly on the basis of the high court’s First Amendment holding.
As I mentioned earlier, the dissent objected to the remand on the ground that even “assisting” a suicide through words alone is constitutionally-protected under the First Amendment.
As I explained above, I believe that both the majority and the dissent are mistaken in their Free Speech analyses, because advising or encouraging a suicide in a direct and targeted manner, which the law in question contemplates, does not fall within the protection of the First Amendment, as it represents incitement to imminent lawlessness.
Ironically perhaps, what makes the actions of the defendant in this case especially repugnant, in my view, is less his “assistance” (that is, his explaining exactly how a person might go about hanging himself) than his attempt to motivate his targets to carry out the act (through advice and encouragement). Stated differently, the one thing on which majority and dissent seem to agree—the constitutionally-protected status of advising and encouraging suicide—is precisely what strikes me as wrong about the decision.
I am far less certain that verbally assisting someone in committing suicide should be constitutionally subject to prohibition. To the extent that such assistance involves providing how-to information, then the person who is truly ambivalent about his choice will have an easier time saying no. (Indeed, one of the defendant’s targets chose to kill herself in a manner quite distinct from that which the defendant proposed). The person about whom I worry is someone who is ambivalent about his choice to kill himself and will not act unless someone encourages him to do so (for example, by saying “Let’s do this together”). In the very different context of physician-assisted suicide, for instance, my view would be that a doctor should be allowed to provide assistance to a patient but should never be allowed to try to persuade an ambivalent patient that he really should go ahead and end his own life.