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Friday, June 16, 2017

""Get Back In": Commonwealth v. Carter and the Limits of Free Speech (Part 1)

Today's verdict finding Michelle Carter guilty of involuntary manslaughter is a stage, nearly the final stage, perhaps, in a terrible tragedy. It also raises a paradigmatic case of the limits of First Amendment protection, and the academic manqué in me can't help but want to explore what the case tells us about the First Amendment.

The facts in brief:
A young woman who sent a barrage of text messages to another teenager urging him to kill himself was found guilty Friday of involuntary manslaughter in a case that many legal experts had expected to result in an acquittal.

The verdict, handed down by a judge in a nonjury trial, was a rare legal finding that, essentially, a person’s words alone can directly cause someone else’s suicide.

The judge, Lawrence Moniz, of Bristol County Juvenile Court in southeastern Massachusetts, said the conduct of the woman, Michelle Carter, toward Conrad Roy III was not only immoral but illegal. Ms. Carter, who faces up to 20 years in prison, will be sentenced on Aug. 3.

Ms. Carter was 17 in July 2014 when she encouraged Mr. Roy, 18, whom she called her boyfriend, to kill himself. On July 12, while she was miles away, he drove alone to a Kmart parking lot and hooked up a water pump that emitted carbon monoxide into the cab of his truck. When he became sick from the fumes and stepped out, prosecutors said, Ms. Carter ordered him by phone to “get back in.” He was found dead the next day.
Now, in analyzing the case, I'm going to be relying on the more detailed recitation of facts provided by the Supreme Judicial Court of Massachusetts, reported at 474 Mass. 624; 52 N.E.3d 1054; 2016 Mass. LEXIS 384 (2016), which gives several key exchanges between Carter (referred to as "Defendant") and Roy ("Victim"):
On July 8, 2014, between 8:09 p.m. and 8:18 p.m., the defendant and victim exchanged the following text messages:

Defendant: “So are you sure you don't wanna [kill yourself] tonight?”

Victim: “what do you mean am I sure?”

Defendant: “Like, are you definitely not doing it tonight?”

Victim: “Idk yet I'll let you know”

Defendant: “Because I'll stay up with you if you wanna do it tonight”

Victim: “another day wouldn't hurt”

Defendant: “You can't keep pushing it off, tho, that's all you keep doing”

***

The defendant helped the victim determine the method he eventually used to kill himself. On July 7, 2014, between 10:57 p.m. and 11:04 p.m., they exchanged the following text messages:

Defendant: “Well there's more ways to make CO. Google ways to make it. … ”

Victim: “Omg”

Defendant: “What”

Victim: “portable generator that's it”

On July 11, 2014, at 5:13 p.m., the defendant sent the victim the following text message: “ … Well in my opinion, I think u should do the generator because I don't know much about the pump and with a generator u can't fail”

On July 12, 2014, between 4:25 a.m. and 4:34 a.m., they exchanged the following text messages:

Defendant: “So I guess you aren't gonna do it then, all that for nothing”

Defendant: “I'm just confused like you were so ready and determined”

Victim: “I am gonna eventually”

Victim: “I really don't know what I'm waiting for. . but I have everything lined up”

Defendant: “No, you're not, Conrad. Last night was it. You keep pushing it off and you say you'll do it but u never do. Its always gonna be that way if u don't take action”

Defendant: “You're just making it harder on yourself by pushing it off, you just have to do it”

Defendant: “Do u wanna do it now?”

Victim: “Is it too late?”

Victim: “Idkk it's already light outside”

Victim: “I'm gonna go back to sleep, love you I'll text you tomorrow”

Defendant: “No? Its probably the best time now because everyone's sleeping. Just go somewhere in your truck. And no one's really out right now because it's an awkward time”

Defendant: “If u don't do it now you're never gonna do it”

Defendant: “And u can say you'll do it tomorrow but you probably won't”

5 During the evening of July 11, 2014, and morning of July 12, 2014, the victim and the defendant exchanged the following text messages:

Victim: “I'm just to sensitive. I want my family to know there was nothing they could do. I am entrapped in my own thoughts”

Victim: “like no I would be happy if they had no guilt about it. because I have a bad feeling tht this is going to create a lot of depression between my parents/sisters”

Victim: “i'm overthinking everything. . fuck. I gotta stop and just do it”

Defendant: “I think your parents know you're in a really bad place. Im not saying they want you to do it, but I honestly feel like they can except it. They know there's nothing they can do, they've tried helping, everyone's tried. But there's a point that comes where there isn't anything anyone can do to save you, not even yourself, and you've hit that point and I think your parents know you've hit that point. You said you're mom saw a suicide thing on your computer and she didn't say anything. I think she knows it's on your mind and she's prepared for it”

Defendant: Everyone will be sad for a while, but they will get over it and move on. They won't be in depression I won't let that happen. They know how sad you are and they know that you're doing this to be happy, and I think they will understand and accept it. They'll always carry u in their hearts“



Victim: “i don't want anyone hurt in the process though”

Victim: “I meant when they open the door, all the carbon monoxide is gonna come out they can't see it or smell it. whoever opens the door”

Defendant: “They will see the generator and know that you died of CO. … ”



Victim: “hey can you do me a favor”

Defendant: “Yes of course”

Victim: “just be there for my family :)”

Defendant: “Conrad, of course I will be there for your family. I will help them as much as I can to get thru this, ill tell them about how amazing their son/brother truly was”



Victim: “Idk I'm freaking out again”

Victim: “I'm overthinking”

Defendant: “I thought you wanted to do this. The time is right and you're ready, you just need to do it! You can't keep living this way. You just need to do it like you did last time and not think about it and just do it babe. You can't keep doing this every day”

Victim: “I do want to. but like I'm freaking for my family. I guess”

Victim: “idkkk”

Defendant: “Conrad. I told you I'll take care of them. Everyone will take care of them to make sure they won't be alone and people will help them get thru it. We talked about this, they will be okay and accept it. People who commit suicide don't think this much and they just do it”

6 At various times between July 4, 2014, and July 12, 2014, the defendant and the victim exchanged several text messages:

Defendant: “You're gonna have to prove me wrong because I just don't think you really want this. You just keeps pushing it off to another night and say you'll do it but you never do”



Defendant: “SEE THAT'S WHAT I MEAN. YOU KEEP PUSHING IT OFF! You just said you were gonna do it tonight and now you're saying eventually. … ”



Defendant: “But I bet you're gonna be like ‘oh, it didn't work because I didn't tape the tube right or something like that’ … I bet you're gonna say an excuse like that”



Defendant: “Do you have the generator?”

Victim: “not yet lol”

Defendant: “WELL WHEN ARE YOU GETTING IT”



Defendant: “You better not be bull shiting me and saying you're gonna do this and then purposely get caught”



Defendant: “You just need to do it Conrad or I'm gonna get you help”

Defendant: “You can't keep doing this everyday”

Victim: “Okay I'm gonna do it today”

Defendant: “Do you promise”

Victim: “I promise babe”

Victim: “I have to now”

Defendant: “Like right now?”

Victim: “where do I go? :(”

Defendant: “And u can't break a promise. And just go in a quiet parking lot or something” (emphasis added).
The Court also added that "Cellular telephone records that were presented to the grand jury revealed that the victim and defendant also had two cellular telephone conversations at the time during which police believe that the victim was in his truck committing suicide.7 The content of those cellular telephone conversations is only available as reported by the defendant to her friend, Samantha Boardman. After the victim's death, the defendant sent a text message to Boardman explaining that, at one point during the suicide, the victim got out of his truck because he was “scared,” and the defendant commanded him to get back in." The Court also found relevant that:
It was apparent that the defendant understood the repercussions of her role in the victim's death. Prior to his suicide, the defendant sought (apparently unsuccessfully) to have the victim delete the text messages between the two, and after learning that the police were looking through the victim's cellular telephone, the defendant sent the following text message to Boardman: “Sam, [the police] read my messages with him I'm done. His family will hate me and I can go to jail.” During the investigation, and after cross-referencing the text messages in the defendant's cellular telephone and those in the victim's cellular telephone, the police discovered that the defendant had erased certain text messages between her and the victim. The defendant also lied to police about the content of her conversations with the victim. Finally, the defendant acknowledged in a text message to Boardman that she could have stopped the victim from committing suicide: “I helped ease him into it and told him it was okay, I was talking to him on the phone when he did it I coud have easily stopped him or called the police but I didn't.

The Supreme Judicial Court found that the First Amendment did not prevent criminal punishment for Carter's role in Roy's death on the ground that "The speech at issue in this case is not protected under the First Amendment to the United States Constitution or art. 16 of the Massachusetts Declaration of Rights because the Commonwealth has a compelling interest in deterring speech that has a direct, causal link to a specific victim's suicide."

This is, to put it mildly, unpersuasive.

The actual standard applicable to claims that advocacy of unlawful conduct is properly subject to legal sanction is that of Brandenburg v. Ohio (1969), providing "that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

So the Supreme Judicial Court's First Amendment analysis is quite superficial, and doesn't use the right standard.

Which in this case doesn't make it wrong.

Next: Directed Coercive Advocacy and the Carter Case

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