GateHouse: Not all speech is protected

Matthew T. Mangino

GateHouse Media

August 4, 2017

The woman found guilty in the sensational homicide-by-text case has been sentenced to prison. Twenty-year-old Michelle Carter was found guilty in June by a Massachusetts judge of involuntary manslaughter in the 2014 suicide of her boyfriend, Conrad Roy III. Carter repeatedly encouraged Roy to commit suicide by asphyxiation via text message.

Soon after her conviction some lawyers warned of the impending demise of free speech. Matthew Segal, the head of the Massachusetts branch of the American Civil Liberties Union criticized the Court’s decision according to the Boston Globe, tweeting that Carter’s conviction “expands Massachusetts’ criminal law and imperils free speech.”

Before we grab our torch and pitchfork, let’s review the history of the First Amendment right to free speech.

The First Amendment was ratified, along with nine other amendments to the U.S. Constitution referred to as the Bill of Rights. The First Amendment reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Those 45 words lay the groundwork for some fundamental rights -- freedom of religion, freedom of speech, freedom of the press and the right to assemble.

In 1919, U.S. Supreme Court Justice Oliver Wendell Holmes established the clear-and-present-danger test: “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent.” This is the opinion where Holmes declared the now-famous example of unprotected speech -- falsely crying “fire” in a crowded theater.

So, clearly not all speech is protected under the First Amendment. The First Amendment does not simply say that if words are involved, you cannot be held responsible for their consequences.

In 1969, the U.S. Supreme Court further clarified unprotected speech when it held that speech can be prohibited if it is directed at inciting imminent lawlessness and if it is likely to produce such action.

Carter’s crime is not new. Her arrest and trial has been a big story because it involved relatively new technology -- texting. There is a long history of legal precedent laying out when speech can be considered a crime.

In 2011, a Minnesota nurse, William Melchert-Dinkel, was convicted of two counts of assisted suicide. He was encouraging people in Internet chat rooms to commit suicide. He sought vulnerable people contemplating suicide and encouraged them by explaining what methods worked best, that suicide was a viable option and that they would be better off in heaven. In some instances, he falsely entered into suicide pacts with his quarry.

The Minnesota judge said that state law made it a crime to participate in speech that intentionally advised, encouraged or aided another in taking their own life.

The case was complicated and rife with First Amendment concerns. The Minnesota Supreme Court overturned the convictions in 2014. He was subsequently convicted a second time and sentenced to 360 days in jail.

The judge presiding over Carter’s trial agreed with prosecutors that her speech was not protected. The judge was not so concerned with the encouragement of suicide, but rather her recklessness once she realized Roy was in danger.

“She admits in ... texts that she did nothing: She did not call the police or Mr. Roy’s family” after hearing his last breaths during a phone call ... “and, finally, she did not issue a simple additional instruction: Get out of the truck.”

Yesterday she was sentenced to 2 ½ years in prison.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino

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