Law Quarterly

Lethal Expression: Free Speech and Encouraging Suicide

By Max Hyams


The American political experiment was designed to promote free expression and “life, liberty and the pursuit of happiness”– going so far as to etch these ideas into its founding documents. While scarcely anyone objects to the core of these principles, disagreement looms at the edges. When these values appear to collide, which prevails? Are acts of free expression–exercises in liberty–that appear to incentivize, encourage or valorize the termination of one’s life and the discontinuation of one’s pursuit of happiness afforded constitutional protection?

The upcoming appeal of Commonwealth v. Michelle Carter (June 16, 2017) might help clear the fog and allow for an unobscured surveyance of First Amendment jurisprudence pertaining to exhortations to suicide. In 2017, a Massachusetts juvenile court found defendant Michelle Carter guilty of involuntary manslaughter for encouraging her erstwhile long distance boyfriend–Conrad Roy–to commit suicide.1

Over the course of several months in 2014, Roy, who had long suffered from depression and social anxiety, sought the consolation of his girlfriend to help him cope with his conditions. However, as the months passed, it appeared–in Carter’s view–that Roy’s affliction was incurable; death was his only remaining means of escaping the implacable mental anguish. Consequently, Carter began to suggest suicide as a viable option, going so far as to text:

I Still don’t think you want to do this, so you’ll have to prove me wrong…hang yourself, jump off a building, stab yourself. I don’t know. There’s lots of ways.2

Evidently, in the hour leading up to moment at which Roy killed himself via carbon monoxide poisoning, the couple had spoken on the phone and Carter had convinced her boyfriend to remain in the car and disregard his second thoughts.3

Carter’s legal team appealed the ruling to the Massachusetts Supreme Judicial Court, arguing–among other issues–that the state’s involuntary manslaughter statute contravenes the First Amendment as applied to Carter’s speech.4

It is not clear how this fact pattern dovetails with First Amendment jurisprudence, or whether Carter’s speech will be enveloped by one of the amendment’s well-known exceptions.

At first glance it seems plausible that Carter’s speech constitutes either incitement–more specifically, “incitement to imminent lawless action”5–or “speech integral to criminal conduct”.6 However, Carter’s action eludes the reach of both exceptions because Massachusetts­, like every other state in the union, no longer has a codified statute criminalizing the act of suicide.7

Might the source of suicide’s illegality be found elsewhere? In Wackwitz v. Roy (1992), the Virginia Supreme Court found that Wackwitz’s widow was not barred from suing the decedent’s psychiatrist for negligence in the aftermath of his suicide. The Court reasoned that since Wackwitz was not of sound mind, he was not guilty of the common law crime of suicide, thus his wife’s suit could proceed.8 While the Virginia Supreme Court implicitly left the state’s common law prohibition on suicide intact, for Carter’s purposes Wackwitz is of no moment; no analogous doctrine can be found within the annals of Massachusetts caselaw.

The arguments raised by defense in their appeal suggest that the Court may focus on whether the statute was sufficiently tailored to achieve the state’s compelling interest in preserving human life. Availing themselves of the fact that the state’s application of the statute implicated the First Amendment in a non-content neutral manner (thus triggering strict scrutiny), defense points to State v. Melchert-Dinkel (2014)– in which the Minnesota Supreme Court struck down a portion of a statute that criminalized “advising” or “encouraging” another to commit suicide, but upheld the section proscribing “assisting” the act.

The Court in Melchert–in which defendant posed as a suicidal nurse and entered into suicide pacts with others in online chatrooms, leading to the suicides of up to five individuals9–found that the ban on encouragement and advocacy of suicide would ensnare “speech that is more tangential to the act of suicide [and]… general discussions of suicide”. On the other hand, the proscription of assistance would only target “speech or conduct that provides another person with what is needed for the person to commit suicide… beyond merely expressing a moral viewpoint or providing general comfort or support”. Beyond suggesting well-known methods like hanging and stabbing, Carter appears not to have provided her boyfriend with specific information better enabling him to carry out his suicide, whereas Melchert- Dinkel provided one of the suicide victims with instructions on effectively tying the rope he used to hang himself.10 On this line of reasoning Carter’s actions appear to fall outside of the Minnesota Supreme Court’s conception of assistance. The prosecution, however, could conceivably argue that Carter’s speech was so incessant, demanding and unavoidable that it rose to the level of detailed assistance–enabling Roy to follow through with an act which, otherwise, he might not have committed.

Alternatively, if the above mentioned Minnesotan precedent does not play a prominent role on appeal, the Supreme Judicial Court could construct a test similar to the “true threat” analysis, but for gauging the purpose of individual exhortations to suicide. These case-by-case evaluations would measure the subjective intent of the speaker by determining whether there was a continuous effort to effectuate the suicide. This test could leave unscathed vicinal protected speech, namely: advocacy of suicide made in political jest, uncharacteristic bouts of anger, and expressions of philosophical misanthropy.

It is entirely possible that the Supreme Judicial Court–following the lead of the highest court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)11–avoids the First Amendment question altogether, electing instead to rule on the constitutionally suspect broad application of the involuntary manslaughter law, whether the state met its burden in proving that Carter inflicted bodily harm, or any number of other issues

What’s clear is that this case could have significant implications for prominent areas of law. In light of the recent bout of high profile suicides–and the attendant national conversation about mental health–the limits of the judiciary’s commitment to civil liberties will be tested. Legal aficionados and outsiders alike are bound to be chomping at the bit for the outcome.

1 Commonwealth v. Michelle Carter, No. 15YO0001NE (Mass. Juv. Ct. June 16, 2017)

2 Bondarenko, Veronika. “How Michelle Carter urging her boyfriend to kill himself over hundreds of texts led to an involuntary-manslaughter verdict”. Business Insider. (June 2017),

3 Glaun, Dan. “Prosecutors argue why Michelle Carter’s texting suicide conviction should not be overturned”. Mass Live. (August, 2018)

4 Brief of Defendant-Appellant Michelle Carter on Appeal from the Bristol County Juvenile Court”.

5 Brandenburg v. Ohio. 395 US 444 (1969)

6 Volokh, Eugene. “The ‘Speech Integral to Criminal Conduct’ Exception”. Cornell Law Review. Vol: 101, Issue 4 (2016).


8 Wackwitz v. Roy, 418 S.E.2d 861 (1992)

9 Pheifer, Pat. “Former Faribault nurse convicted again of assisting suicides”. Star Tribune. (September, 2014)

10 State v. Melchert-Dinkel, 844 N.W.2d 13 (Minn. 2014)

11 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,584 US (2018)

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