In the first part of this admittedly lengthy exegesis, I summarized the facts of Commonwealth v. Carter, in which a trial court judge has rendered a guilty verdict in a bench trial, and suggested that the Massachusetts Supreme Judicial Court had applied an incorrect standard in allowing the case to go to trial, but had possibly reached the correct result. Here, we'll look at the application of the appropriate standard and distinguish Carter from a decision of a very different kind, Rice v. Paladin Enterprises (4th Cir 1997)
The basic legal analysis is adapted from my 2002 article Brigaded With Action: Undirected Advocacy and the First Amendment (you can also read the article, revised in the second edition of my book. The scholarly apparatus is all there, so I'll spare you here.
In Rice v. Paladin Enterprises, Inc., a publisher was held civilly liable for a murder committed by a killer-for-hire who followed the directions in one of its books, Hit Man: A Technical Guide for Independent Contractors. (The book purported to be written by an actual hit man, but the author, under the name "Rex Feral," was in fact a mystery novelist.) The Fourth Circuit found the book to constitute a "steeling to violence" under Brandenburg. Rice is and inconsistent with Ashcroft v. Free Speech Coalition a subsequent Supreme Court decision, and so is of dubious presidential value at best. The reasons that suggest that the Fourth Circuit got it wrong in Rice, suggest that the verdict in Carter, whether right or wrong, does not violate the First Amendment.
In Brandenburg, I argued in the article and at greater length in the book, speech is only subject to punishment if it is tantamount ti what earlier cases call a "verbal act." As I explained there, the decision in Ashcroft is a powerful reassertion of the primary rule of free speech: that, as a general proposition, speech may only be deemed to constitute part of an illegal action under very narrow factual circumstances in which a specific relationship between speaker and actor correlates the speakers' expression to the fact-specific crime in question. the presumption that speech is inviolate is a precondition to such verbal act analysis. It is only upon a showing that the speech is the functional equivalent of a physical act that proscription and punishment are permitted.
Second, some kind of specific connection to the illegal conduct that resulted from the speech is needed--the causal chain must be sufficiently tight that the line between protected persuasion and unprotected verbal act remains as sharp as possible. Thus, in Brandenburg, and Justice Brandeis' Whitney concurrence, the requirement of both the imminence of the resultant act and a specific context in which the act takes place creates a lack of opportunity for reasoned deliberation and the temporary ascendancy of the speaker over the audience. This is similar to an agency relationship that fairly imputes the listener's act to the speaker.
In fact, the relationship of the audience to the speaker is critical in distinguishing a verbal act from advocacy. A classroom professor who instructs her class from the writings of Valerie Solanas, and urges action on the abstract level is not the same as a speaker who is aware that prompt obedience is likely because of a different relationship context. For example, Professor James Moriarity, known as the “Napoleon of Crime,” instructs his direct subordinate Colonel Sebastian Moran to kill Sherlock Holmes. The power relationship between the two make it expected that Moriarity will be obeyed; violent action on the part of Moran at the behest of Moriarity is within the scope of their relationship as negotiated by them, and as practiced. Moran's act is attributable to Moriarity even if attempted after Moriarity's death. Where the relationship is an explicit one, one agreed upon by the parties and acknowledged by them, the lack of imminence alone does not absolve the speaker. The equation is simply that a relationship plus a command equals causation. A relationship where a command takes place with both parties having reason to believe that the command will be obeyed, makes the speaker liable for the resultant act.
Another example may be helpful. Henry II, at dinner with his loyal barons, fatefully muses about his political conflict with the Archbishop of Canterbury, Thomas Becket, asking “will no one rid me of this turbulent priest?” Four of his knights take the King's angry exclamation as an instruction, and butcher Becket in his own cathedral, while at the altar; Henry disavows any intent that they *364 should have so acted. This case posits an interesting question regarding intent: what is meant by a command? If Henry was just letting off steam, and did not intend his knights to act upon his passionate language (an interpretation much in keeping with the King's well-known rages), Henry might persuasively claim that, despite the relationship, his knights did not reasonably take his remark as a command.
That is, Henry might claim either that his statement was not intended to be a command, or simply that the knights unreasonably so interpreted it, regardless of the King's subjective intention at speaking. The latter theory plainly exonerates Henry; if the statement is misunderstood in an objectively unreasonable manner, then the relationship does not act to impute liability to the King. If, however, the King was in the habit of commanding his knights to execute political opponents, and habitually expressed his will so elliptically, the agency relationship might still bind the King, despite Henry's lack of specific intent on that occasion.279
In both of these paradigm cases, immediacy is not required to establish liability because the pre-existing relationship creates a context whereby the speaker knows that the command, if spoken, will be acted upon. Speaker and actor are in a power relationship that supports such a conclusion.
Thus, direct advocacy, under certain circumstances, crosses the line to verbal act status. Thus too, indirect advocacy--Henry II's wishing for the death of the “turbulent priest” to those who feel it their duties to anticipate and fulfill his needs--can also cross this line, under the right set of circumstances. However, undirected advocacy--like Hit Man or the S.C.U.M. Manifesto--can only appeal to reason. No power dynamic between reader and speaker exists to attribute the causation of an act to the following of advocacy that is abstract--in that it is untethered to a specific factual context, not that it is bloodless. The mind of the reader remains free to evaluate, to weigh, to accept or to reject the arguments presented. The acts that result, therefore, are not attributable to the speaker, but solely to the actor. The speaker may be the spreader of error and evil counsel, but she is not herself an actor. To hold otherwise is not only to blur the lines between speech and act--even verbal act--but to reject the central tenet of any notion of free speech: that individuals are capable of receiving and evaluating various messages, and choosing between them.
Michelle Carter was involved in directed advocacy--she was addressing a particular person, trying to induce (so the trial court found) specific action at a specific time. Actually, she was engaged over a period of time, but at the time of the suicide, particularly when he left the carbon monoxide-filled truck and called her, at that precise moment, she commanded him to "get back in." In refusing to dismiss the case, the Supreme Judicial Court called this statement in particular (among others) "coercive" in the context of their discussions.
The Brandenburg rule captures an unspoken power dynamic: the audience may be swept up in the feeling created by the speaker, directed at that moment at a specific target. In short, a temporary ascendancy due to group feeling and manipulated emotion has created a power relationship such that the causal chain is established. Power, not reason, links speaker and actor.
That captures rather well the facts in Carter as found by the Court in its verdict. Whether Michelle Carter has an appeal on other grounds, her conviction does not seem to infringe the First Amendment.