Between Books

Ronald Knox, who was, among other things, enough of a Trollope fan that he wrote the charming (if slight) Barchester Pilgrimage, was a Catholic priest, Sherlockian, detective story writer, and amiable eccentric.

He was also a formidable scholar. And who but Knox could begin his magnum opus with a dedicatory epistle to a novelist, his friend Evelyn Waugh? The opening of the epistle, though, speaks to every scholar who has put pen to paper, or keystroke to pixel, for that matter:

There is a kind of book about which you may say, almost without exaggeration, that it is the whole of a man's literary life, the unique child of his thought. Other writings he may have published on this or that occasion; please God, the work was not scamped, nor was he indifferent to the praise and blame of his critics. But it was all beside the mark. The Book was what mattered--he had lived with it all these years, fondled it in his waking thoughts, used it as an escape from anxiety, a solace in long journeys, in tedious conversations. Did he find himself in a library, he made straight for the shelves which promised light on one cherished subject; did he hit upon a telling quotation, a just metaphor, an adroit phrase, it was treasured up, in miser's fashion, for the Book. The Book haunted his day-dreams like a guilty romance.

Barring his restricting of writers to whom this feeling would be known to men, and disregarding women writers, even those of his own day and in his own field, such as Evelyn Undehill, the sentiment is profoundly true, although in my own case, each phase of life has produced a different Book.

When I was a young man, I read in the biographies of Oliver Wendell Holmes of his ambition to write his magnum opus, The Common Law (1881) before his 40th birthday (he just made it). In a fit of bravado, I resolved to write my book on freedom of speech before my own 40th birthday, and published First Amendment, First Principles in 2000; the revised edition with two added chapters came out while I was still under 40. It was the Book for me through my young manhood, finished and expanded before I hit the line of middle age. A young man's book, not to be mentioned in the same breath as the classic Holmes wrote, but it was the very best I could do, and it defined an era in my own life. It was, for that time, the Book, and I never thought I'd write another.

But then came the great surprise--Phineas at Bay, a novel, for me the greatest form of literature, and one which I had aspired to write when I scribbled a few stories by hand in off hours as an English major at Fordham College, or at Columbia Law School. But I had no staying power, and the stories waned and died. But then I had the Book, First Amendment, First Principles, and counted myself lucky to have written that.

In my mid-40s, though, I was gripped as I had been a decade before, and wrote the continued adventures of Phineas Finn, Marie Finn, and their set. I had another Book. It sells, a few copies little here and there, now and again, and I have been paid and have used that money to pay the light bill, so I meet Stephen King's criteria to be deemed a talented writer (thankya big big, sai King!).

In just a few weeks, I will be 52.

As I move into the latter half of middle age, I wonder: will lightning strike thrice? I don't mean in the quality of the books--I'm no Holmes, no Trollope, no King--but will the tank refill, inspiration ignite, and the wonderful madness of pursuing the Book again be mine to revel in? Frankly, I feel guilty hoping for it--once was luck, twice was inexpressibly joyful, but three times--why, it feels almost greedy to hope for it.

Almost.

And earlier this week, I found that a drying up point at another novel I'd started over a year ago suddenly was not a stopping point. It's too early to tell if this will be a third "the Book"--but hope--well, hope comes unbidden.

Only time will tell.

Direct Coercive Advocacy and the Carter Case (Part 2 of 2)

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.

""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