Michelle Carter was recently convicted by a Massachusetts judge of involuntary manslaughter in connection with the death of her boyfriend, Conrad Roy III, by suicide. Carter played a role in the suicide by repeatedly texting her boyfriend urging him to kill himself, expressing frustration with his delaying it, and assuring him that she would take care of his family’s wellbeing in the aftermath of his death, a worry that he voiced in hesitating to take his own life. In this column, I will discuss some of the issues that a conviction like this raises for free speech doctrine, the right to die, and traditional conceptions of causation and responsibility in the criminal law.
The Massachusetts branch of the American Civil Liberties Union (ACLU) has taken the position that Carter’s conviction violates her freedom of speech. At first glance, this might seem like a powerful argument. After all, Carter was expressing her point of view, that her boyfriend should commit suicide and that he should do it sooner rather than later. If she had written an essay or a book arguing either that suicide in general or her boyfriend’s suicide in particular was warranted, that writing would be protected by the First Amendment, and she could not be criminally punished for producing it. Indeed, under the 1992 Supreme Court ruling in Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., the law could not even direct that the money she made from the writing be placed in a fund for victims, because even that would excessively burden her freedom of speech. So how is what she did different? Does a text message receive less free speech protection than a book or an essay?
In principle no, but in context, the immediacy of the text makes a difference. As a speaker or writer, Carter was protected by the First Amendment in expressing her abstract viewpoints on a particular matter (including whether her boyfriend should commit suicide). Such expression, if objectionable, calls for more free expression arguing the other side of the debate, rather than censorship. That is the hallmark of free speech doctrine. But incitement to imminent lawlessness or violence is not protected by the First Amendment, under the Supreme Court’s landmark decision in Brandenburg v. Ohio. This is in part because there is no opportunity to counter the violent message with a contrary idea, precisely because of the immediacy of what the speech urges. Carter’s texts to her boyfriend seem logically to fall within the category of incitement. She was repeatedly pressing him, through her words, to take his life immediately. This sort of speech is not protected by the First Amendment.
To appreciate why the distinction between advocacy of a position and incitement is a real one that makes sense, consider a different scenario from the actual one involving Carter and Roy. Imagine that in addition to Carter and Roy, there is a third person, John Doe, in the picture. Now imagine that instead of urging Roy to kill himself, Carter urges Doe to kill Roy. Assume that Doe voices various reasons for hesitation about killing Roy, suggesting at various points that he wants to put off the act until later and that he is worried about the consequences for Roy’s family of losing their son to murder. In response to Doe’s reluctance, assume that Carter tells him that she will make sure Roy’s family will get through the loss of Roy and that Carter very strongly urges him to go ahead and kill Roy right now. After repeated urgings in which she responds to any hesitation on Doe’s part by insisting that he kill Roy immediately, Doe finally kills Roy.
In the hypothetical scenario, it seems much more straightforward to say that Carter’s urgings to homicide cannot possibly be protected speech under the First Amendment. By pushing Doe to kill Roy, Carter implicates herself in the homicide. Under a standard definition of complicity in the criminal law, an accomplice aids or encourages the direct perpetrator with the intention (or knowledge) of helping bring about the criminal outcome. Words can be used to encourage a third party to carry out a crime, and accomplices are often considered as culpable and are subject to the same penalties as the principal perpetrator. Indeed, in our hypothetical example, one might even call Carter the primary actor, given Doe’s hesitation and reluctance to commit the crime without the pressure he felt from Carter. Saying “shoot him now; it’s the best thing” is not protected by the First Amendment, even though an essay on the benefits of murder would be protected.
Right to Die
Another argument against holding Carter accountable for homicide for urging her boyfriend to kill himself is that suicide ought to be a protected right on the part of every competent individual. The law, on this approach, should not be dictating to people that they live if they deem their suffering to outweigh whatever benefits or pleasure that they derive from their lives. If our law recognized a right to suicide, it might seem potentially misguided to hold a third party criminally responsible for a suicide when the suicidal person was simply exercising a right to take their life.
We can say two things in response to this argument. First, our law does not anywhere recognize suicide per se as a protected liberty right. The U.S. Supreme Court, in Washington v. Glucksberg, specifically rejected a right to physician assistance in dying. In a narrow range of cases involving the terminally ill who have six months or less to live, a handful of states and the District of Columbia do allow for assistance in suicide. This allowance does not, however, extend to helping people like Roy, who are physically healthy and wish to die because they are suffering from unbearable mental illness.
Thus, even if Carter had simply provided the means for Roy to kill himself, she could have been held criminally responsible for his death, because neither his suicide itself nor her role in it is considered protected by law. But she did much more than simply help Roy do what he wanted and intended to do on his own. She pressured him to do something about which he had reservations. One might believe that she should therefore have been held criminally responsible for his death even if the law recognized a right to assistance in dying in cases like his. She did not merely help, in other words; she bent his will to her agenda.
In any event, because suicide of a person like Roy is frowned upon by the law (though he is not considered a criminal himself), helping or encouraging him to commit suicide does not fall within any legally protected right-to-die category.
The causation argument connects with how suicide is often seen by the law and by commentators. Suicide is something that one person does to himself or herself, independently choosing to carry out an act of self-destruction. If another person encourages the suicide or otherwise tries to persuade an individual that he should kill himself, those speech acts are arguably superseded by the decision of the individual to carry out his own suicide. Once we know that Roy killed himself, we do not need to look to Carter for a causal account of what he did. We can locate full responsibility in Roy.
The definition of involuntary manslaughter in Massachusetts also may seem ill-suited to what Carter did in writing texts to her boyfriend encouraging him to kill himself. Under the Massachusetts common law, the crime of involuntary manslaughter (of which Carter was convicted) is “an unintentional, unlawful killing caused by wanton or reckless conduct.”
In this context, “wanton or reckless conduct” is “intentional conduct that creates a high degree of likelihood that substantial harm will result to another person.”
What comes to mind in reading these words is a person who drives while intoxicated or who shoots a gun out a window with his eyes closed and kills someone. The person is doing something reckless that is very likely to have direct and harmful consequences, and the risks that he takes come to pass. Someone dies because the person in question drives into them drunk or because he shoots at them with his eyes closed. There is no superseding causal act, as there is in the case of a suicide.
The notion of a superseding causal event (i.e., the suicide) is the strongest argument against holding Carter responsible for her boyfriend’s death. She was not exercising her freedom of speech, and she was not helping him enjoy his protected liberty right to die. But he could have simply rejected her imploring rather than choosing to do what she urged. Isn’t he the causal agent in his suicide, and doesn’t convicting Carter of manslaughter improperly attach responsibility for his actions to her?
Perhaps, but there is a better argument going the other way. A person who is feeling like committing suicide is suffering terrible emotional anguish and, if he is texting with a girlfriend, is likely looking for comfort or someone to help him feel less distress. Instead of trying to soothe her boyfriend, however, Carter took it upon herself to pressure him repeatedly to take his own life. She rejected any hesitation on his part and tried to allay his legitimate concerns about his family’s reaction to his death by pushing harder and by promising (without foundation) that she would somehow take care of his family.
Putting aside the “unintentional” part (because Carter plainly intended for her boyfriend to die, which only makes her actions worse), Carter spoke in a manner that showed a reckless disregard for the grave risk of harmful consequences that her words posed, namely, the death of her boyfriend. Worse than that, she positively pursued the harmful consequences of her words by repeatedly telling Roy to commit suicide and by trying to make him feel bad that he was not already dead.
However one feels about a right to die (and for the record, I believe it ought to be protected), the behavior of Roy’s girlfriend was reprehensible. She did not offer him solace or comfort at a time when he needed it most. She instead hectored him for hesitating to kill himself and pushed as hard as she could for him to finally do what he did, take his own life.
At one point, Roy exited the truck (which was filled with carbon monoxide), and Carter told him to get back inside. This was the judge’s reaction to that conduct: “This court finds that instructing Mr. Roy to get back in the truck constituted wanton and reckless conduct by Ms. Carter, creating a situation where there is a high degree of likelihood that substantial harm would result to Mr. Roy.” Had Carter done otherwise, had she—as the judge so poignantly put it—simply told him to leave the truck where he was suffocating from carbon monoxide poisoning, he probably would not have died that day.
Because she put Roy in harm’s way, Carter had a duty to try to help him escape that harm, and she failed in that duty. He is gone because of what she said to him and because of what she did not say to him, and she understood perfectly what the impact of her statements might be, because it was exactly what she had urged. She did more than take a grave risk with her boyfriend’s life; she strongly urged him to end it when he was obviously vulnerable to her urgings.
If, as the prosecutor suggested, Carter did what she did so that she could have the attention that people give to grieving girlfriends, then that motive is outrageous and ought to be taken into account at her sentencing hearing. But whatever her motives, Carter’s conviction for having killed her boyfriend after what she did (and failed to do) is just.