What does suicide have to do with the first amendment right to free speech? As it turns out, the question comes up in many contexts:
- Can a state university student be disciplined for sending a text threatening suicide to another student?
- Can a young woman be criminally prosecuted for repeatedly texting her boyfriend to insist that he fulfill his intention to commit suicide?
- At what point can an organization supporting assisted suicide be prevented from promoting its views? Should it matter if that organization is targeting one person as opposed to a larger group of people?
Each of these questions have come up in recent court decisions at both the state and federal levels. In Doe v. George Mason University, a student at George Mason University in Virginia was investigated after complaints involving unwanted sexual activity with a student at another university. As their relationship collapsed, he texted her that if she did not respond to his messages he would shoot himself. Because of this suicide threat, he was charged with, among other things, violating a George Mason student code rule prohibiting using “communication that may cause injury, distress, or emotional or physical discomfort.” The student was expelled, and while most of the court’s decision focused on whether he had received sufficient notice and hearing, it did devote a portion of the opinion to the suicide threat. Finding that a threat to one’s self (not others) was protected by the first amendment, the court held that, while the student could be “sequestered” for a few hours to investigate whether his threat to shoot himself posed a threat to the school or its students, he could not be punished simply for sending a text, even if its sole intention was to cause its recipient emotional distress.
“Can a young woman be criminally prosecuted for repeatedly texting her boyfriend to insist that he fulfill his intention to commit suicide?”
In Massachusetts, meanwhile, a young woman’s texts were deemed to have a more lethal purpose: to coerce her boyfriend into killing himself. When Michelle Carter’s boyfriend, Conrad Roy, appeared to be backing out of his decision to kill himself through asphyxiation in his car, she texted him repeatedly: “The time is right and you’re ready, you just need to do it” and “You can’t think about it, you just have to do it. You said you were gonna do it. Like I just don’t get why you aren’t.” When Roy weakened and left his car, one witness testified that Carter reported telling Roy, “Get back in that car!” Carter was charged with involuntary manslaughter. Her defense included the claim that her texts were protected under the first amendment. In Commonwealth v. Carter, the highest court in Massachusetts held that the state’s compelling interest in deterring speech that has a direct, causal link to a specific victim’s suicide trumped Carter’s first amendment rights. Instead, the court decided for the first time that a person who is not physically present can be indicted for homicide based on contemporaneous text or telephone messages that amount to coercing an individual to commit suicide, finding that the messages amounted to a “virtual presence.” The court also rejected Carter’s argument that “…verbal conduct can never overcome a person’s willpower to live and therefore cannot be the cause of a suicide.”
Interestingly, the court went out of its way to explicitly emphasize that it was not criminalizing words used to provide support or even assistance to a mature adult who, confronted with a terminal illness, had decided to end his or her life.
This was probably a wise precaution. The first amendment rights of individuals and organizations supporting assisted suicide has come up already in the highest courts of several states. In Georgia, after indictment of members of the Final Exit Network for assisting the suicide of a man with cancer, the Supreme Court unanimously struck down the statute they were charged with violating, which criminalized “public advertisement” that an individual would assist a suicide (as long as the individual also took an overt action to further that purpose). Less than three months after the statute was stricken, the legislature enacted a constitutionally permissible statute. No prosecutions have taken place under the new law.
In Minnesota, the Supreme Court, like the Massachusetts Supreme Judicial Court, considered the thorny issue of criminal responsibility for texting messages to encourage and even instruct a person to commit suicide. In State v. Melchert-Dinkel, the communications were between strangers: a male nurse who infiltrated web forums of suicidal people, and cajoled at least two individuals to kill themselves, imploring one to let him watch. The Minnesota Supreme Court struck down the criminalization of “encouraging” or “advising” suicide, but retained the crime of assisting suicide, defined as “enabling” someone to commit suicide. Although actions would more likely “enable” than words, the court left open the possibility that instructions would enable suicide. On remand, the lower courts followed the court’s implicit suggestion and Melchert-Dinkel was convicted on the basis of his detailed instructions to one victim as to exactly how to hang himself.
Featured image credit: Natures Magic Patterns of Gold, Chris Fort. Public domain via Flickr.