The Feb. 11 editorial “Michelle Carter is no free-speech martyr” trivialized the case. (We are Carter’s appellate lawyers.) Her conduct, the editorial says, was tantamount to falsely crying “fire” in a crowded theater, words lacking First Amendment protection. Reducing the case to that trope ignores its complexity.
First, a person should only be convicted for someone’s death if he or she “proximately caused” it. But when Conrad Roy III died, Carter was miles away, in Plainville; there is no evidence she knew his location. Roy tried to kill himself several times before he met Carter; prior suicide attempts are the best predictor of a suicide’s being carried through. Carter had urged Roy to seek professional help. Roy, not Carter, researched how to kill himself. Texts on the evening of the suicide show Carter’s desperation when Roy stopped answering: “Please answer me. I’m scared are you okay?” The much-hyped statement — Carter urging Roy to get back in the carbon monoxide-filled truck — was one line in a rambling text Carter sent two months later and not credible.
Second, as the US Supreme Court has repeatedly held, due process forbids vague criminal laws that let prosecutors decide what conduct crosses the line. No defendant has been convicted for encouraging suicide when he or she neither physically participated nor provided the means. Decisions about whether encouraging suicide is “good” or “bad” are not supposed to be made on a case-by-case basis. That’s why states typically deal with assisted suicide through statutes clarifying what is criminal.
Third, those statutes cover acts, not speech, because of the First Amendment. When Minnesota included speech that assisted suicide, their highest court threw it out as unconstitutional.
Is Carter’s conduct like falsely yelling fire in a crowded theater? Hardly. It is more like yelling all sorts of things, including “please don’t do this,” from miles away, to a young man who had already lit the match. While the Supreme Judicial Court’s decision was wrong, the Globe’s editorial was a caricature.