First Amendment Experts Dubious Of Carter Conviction

First Amendment specialists reacted with skepticism to the conviction of 20-year-old Michelle Carter, who stood trial for manslaughter in Massachusetts after she encouraged her ex-boyfriend to take his own life.

Manslaughter charges are rarely pursued solely on the basis of speech. In this case, prosecutors brought charges against Carter, 17 at the time of her ex-boyfriend’s death, because her “wanton and reckless conduct” was the cause of his death. Stunned legal commentators say the verdict compromises otherwise lawful speech and perverts core First Amendment doctrine.

The ACLU of Massachusetts fears the legal rationale applied to convict Carter could implicate vast swaths of protected speech, particularly speech which concerns end of life issues. These conversations, always sensitive and easily distorted given the attendant emotions, euphemisms, and hypotheticals, are inevitably chilled by Carter’s case. They said:

There is no law in Massachusetts making it a crime to encourage someone, or even to persuade someone, to commit suicide. Yet Ms. Carter has now been convicted of manslaughter, based on the prosecution’s theory that, as a 17-year-old girl, she literally killed Mr. Roy with her words. This conviction exceeds the limits of our criminal laws and violates free speech protections guaranteed by the Massachusetts and U.S. Constitutions.

The implications of this conviction go far beyond the tragic circumstances of Mr. Roy’s death. If allowed to stand, Ms. Carter’s conviction could chill important and worthwhile end-of-life discussions between loved ones[.]

Professor Erica Goldberg of Ohio Northern University Pettit College of Law, an expert on First Amendment doctrine, seemed sympathetic to that position. Though she believes Carter is criminally liable for Roy’s death, she suggested that Massachusetts ought to formulate a more precise standard for assessing culpability in future cases. She writes:

The court’s rationale for declaring this speech criminally punishable — that the criminal law here passes strict scrutiny — may render unprotected a wide swath of speech that is causally related to suicide. Perhaps a better basis for removing the protection of the First Amendment is that Carter’s speech was intended to and likely to produce imminent death. This speech is not like the abstract, but offensive hate speech that is fully protected by the First Amendment, but was a knowing, personal, and direct effort to persuade one’s partner to take his life immediately. As such, the speech is so closely and imminently tied to action that it loses its protection as speech.

Writing in National Review, David French argued Carter’s conviction turned on the fact that her speech was persuasive. Criminalizing speech on the basis of its effectiveness, he says, profoundly distorts First Amendment jurisprudence. He writes:

Carter’s actions were reprehensible, but she was sharing with him thoughts and opinions that he may have found persuasive but had the capacity to reject. A legal argument that renders otherwise-protected speech unlawful because it actually persuades would blast a hole in First Amendment jurisprudence.

Legal issues aside, French also points out the verdict makes a mess of moral agency, as it denies free will in favor of a crude determinism.

For its part, the Massachusetts Bar Association supported Carter’s prosecution.

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