Blurred Lines: How the Court in Commonwealth v. Carter Blurred the Line Between Freedom of Speech and Criminal Liability

I. Introduction

In Commonwealth v. Carter, a Massachusetts court convicted Michelle Carter of manslaughter for encouraging the suicide of Conrad Roy through words alone.^[1] The court ruled that her verbal conduct “overc[a]me [the victim’s] willpower to live” and therefore caused the suicide.^[2] Carter was sentenced to fifteen months in prison and the U.S. Supreme Court denied certiorari in 2020.^[3] Even though this case was the first of its kind, about five years later, the Commonwealth of Massachusetts charged Inyoung You with manslaughter under similar circumstances.^[4] You pled guilty and received ten years of probation.^[5]

These holdings have inspired many scholars to consider the extent to which the Constitution protects the free speech rights of American citizens. This Note explores these recent tensions between protected free speech and criminally punishable speech. Part II begins with the legal history of suicide and causation generally and specifically regarding suicide. Part III argues that the court incorrectly decided Commonwealth v. Carter. This argument proceeds in three parts. First, in deciding the case, the court incorrectly assumed Carter owed Roy a duty to rescue. Additionally, the court’s holding blurred the line between freedom of speech and criminal liability. Finally, the court decided law retroactively, depriving Carter of her Fifth Amendment right to due process.

The current U.S. Supreme Court would likely view the holding of Commonwealth v. Carter as an unconstitutional restriction of freedom of speech, as it is known for leaving “constitutional speech rights much stronger than they were found.”^[6] Similarly, the Court is critical of laws that permit government regulation of the content of speech.^[7] Additionally, the recent coalition of a “six-justice conservative majority” has had and will continue to have a significant impact on the Court’s jurisprudence in a number of areas, especially First Amendment rights.^[8] When the Supreme Court decides to take up a case similar to Carter to settle this uncertainty and set the record straight, hopefully the Court will rule in favor of free speech. Due to the unfortunate prevalence of cyberbullying and suicide,^[9] the Court will likely have that chance soon.

II. Background

A. The Legal History of Suicide

We do not know when suicide began,^[10] but the suicides of lovers Thisbe and Pyramus in Babylonia, Persia, around 2000 B.C. are the first recorded instances.^[11] Within the United States and other Western civilizations, suicide was considered a religious problem until the early nineteenth century.^[12] Soon after, the understanding of suicide as “a medical problem that could be prevented by treatment” superseded the prior religious notion.^[13] Today, suicide is considered “a multifaceted complex outcome that emerges from numerous biopsychosocial factors.”^[14] Despite numerous prevention efforts, suicide rates continue to increase, and it remains a public health concern.^[15]

In English common law, suicide—defined as one who “deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death,”^[16]—was a criminal act.^[17] Beginning in the mid-thirteenth century, “self-murder” became a crime under common law in England, paralleling the Church’s long-held belief that suicide was a mortal sin.^[18] If proven, the deceased was denied a Christian burial and the family was stripped of their belongings.^[19] Following the passage of The Forfeiture Act of 1870, England terminated this practice of reverting property possession to the king.^[20] In 1961, England passed legislation that abolished suicide as a crime.^[21] In some other countries, suicide was never criminalized and was seen as a patriotic alternative to dishonor.^[22] Similarly, in Romeo and Juliet, arguably one of the greatest love stories of all time, the main characters’ suicides were portrayed as displays of love and encouraged the end of a family feud.^[23]

In the United States, there has never been a recorded instance of punishing suicide through improper treatment of the corpse.^[24] Similarly, the United States did not engage in property forfeiture, primarily due to the prohibitions against it in state constitutions.^[25] Courts had little power to dissuade suicide after the removal of the debilitating common law punishment.^[26] Many states were “confronted with the problem of maintaining a law under which the criminal could not be punished, [thus] most American courts ignored suicide as a common law crime.”^[27] In the numerous states that later replaced the common law with statutory law, suicide was disregarded and the common law prohibition against suicide went idle in those states.^[28]

Historically, although not punishable, various states listed the act of suicide as a crime.^[29] In the mid-1960s, only nine states criminalized suicide—Alabama, Kentucky, New Jersey, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, and Washington.^[30] By the late 1980s, thirty of the fifty states had no laws prohibiting suicide or suicide attempts, but every state had laws declaring it a felony to aid, advise, or encourage another person to commit suicide.^[31] By 1975, only two states still listed suicide as a crime,^[32] and these states have since removed that classification.^[33]

Today, suicide is no longer a crime in any state.^[34] Society punishes criminals to achieve certain goals such as deterrence, incapacitation, rehabilitation, retribution, and reparation.^[35] Punishing suicide does not achieve any of these goals and is therefore contrary to the justifications for punishment in our criminal justice system.

B. Causation Generally and Regarding Suicide

The causation element in criminal law, which relates to conduct and a specific result, is composed of two requirements: actual causation (cause-in-fact) and legal causation (proximate cause).^[36] Cause-in-fact is typically satisfied through the “but-for” test: showing that but-for the antecedent conduct, the result would not have occurred.^[37] To satisfy proximate cause, “it must appear that the injury was the natural and probable consequence of the . . . wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.”^[38] However, it is possible for the chain of causation to be broken by an “intervening cause.”^[39] An intervening cause is an act of another party that comes between an antecedent course of conduct and a consequence.^[40] When an intervening act occurs, a foreseeability standard usually governs the proximate cause analysis.^[41] An intervening act only supersedes another act as a proximate cause of the consequence if the act is unforeseeable.^[42]A reasonably “foreseeable intervening act” does not break proximate cause.^[43]

The question of causation becomes increasingly difficult when a victim’s actions are voluntary.^[44] Generally, suicide breaks the chain of legal causation.^[45] When a person voluntarily “makes the choice to harm him or herself, the act is superseding.”^[46] In Cotten v. Wilson, the decedent’s estate sued the defendant for negligently facilitating the decedent’s suicide.^[47] While alone, the decedent committed suicide by shooting herself with an unsecured gun in the defendant’s home.^[48] The decedent’s estate alleged that the defendant “should have known the decedent was potentially suicidal and that [the defendant] negligently facilitated the suicide by failing to secure the gun while the decedent was in his home.”^[49] The Supreme Court of Tennessee affirmed the trial court’s grant of summary judgment in favor of the defendant.^[50] The court held that the evidence was insufficient to find that the decedent’s suicide was a reasonably foreseeable probability; consequently, the decedent’s suicide constituted a superseding intervening event that broke the chain of proximate causation.^[51]

In Commonwealth v. Carter, Carter (then seventeen years old) was indicted for involuntary manslaughter after she encouraged Roy (then eighteen years old) to commit suicide.^[52] Carter and Roy met in 2011 and were dating at the time of Roy’s death.^[53] Most of their contact occurred through phone calls and text messages because they lived in distant, separate towns.^[54] Their messages later revealed that Carter was aware of Roy’s prior suicide attempt and his history of mental illness, and much of their communication focused on these suicidal ideations.^[55] Through text messages, Carter “encouraged the victim to kill himself, instructed him as to when and how he should kill himself, assuaged his concerns over killing himself, and chastised him when he delayed doing so.”^[56] Phone records confirm that Carter texted Roy the phrase “[y]ou just [have] to do it” four times between July 11 and 12, 2014.^[57] Carter and Roy had two phone conversations when Roy was in his truck attempting suicide.^[58] The content of those conversations is only available because after Roy’s death, Carter sent a text message to her friend, Samantha Boardman, explaining that, “at one point during the suicide, [Roy] got out of his truck because he was ‘scared,’ and [Carter] commanded him to get back in.”^[59]

Before announcing his decision, Judge Moniz divided the evidence of the case into different components.^[60] The court found that the actions Carter took from June 29, 2014 through the moment Roy got out of the truck “constituted ‘wanton and reckless conduct’ and exhibited a ‘serious disregard of the well-being of Roy.’”^[61] Nonetheless, the Commonwealth had not proven as to that time period that her reckless or wanton behavior caused Roy’s death.^[62] Roy struggled with his mental health and took significant actions to end his own life.^[63] However, he broke that chain of self-causation by exiting the vehicle.^[64] He took himself out of the toxic environment that it had become.^[65] When Carter realized Roy had exited the truck, she instructed him to get back in when she had reason to know it was becoming, or was, a toxic environment that threatened human life.^[66] The court found that “where one’s actions created a life-threatening risk to another, there would be a duty to take reasonable steps to alleviate the risk.”^[67] Where there is “reckless failure to fulfill this duty,” the resulting charge may be manslaughter.^[68] The court found that Carter’s actions and her failure to act when she created that duty for herself, constituted “wanton and reckless conduct.”^[69]

At the time the case was decided, Massachusetts did not have a statute prohibiting the encouragement of suicide, so Carter was convicted under the common law crime of involuntary manslaughter.^[70] In Massachusetts, the elements of common law involuntary manslaughter require that a defendant’s conduct is (1) intentional; (2) wanton or reckless; and (3) a cause of the victim’s death.^[71] The court focused on the second element without spending much time at all on the first or third element.^[72] Additionally, the court took it a step further, saying that because Carter caused the risk, she owed Roy a duty to take reasonable steps to alleviate it.^[73]

This case was unprecedented because it was the first time words alone were enough to constitute a charge of manslaughter.^[74] In its decision, the court mentioned other cases such as Commonwealth v. Atencio and Persampieri v. Commonwealth, where the court contemplated charges of involuntary manslaughter against defendants where the deaths of the victims were self-inflicted; however, these cases were distinct from Carter.^[75] In Atencio, the two defendants, Atencio and Marshall, and the deceased were playing a game of “Russian roulette.”^[76] During the game, nothing happened when Marshall, the first to take the gun and point it at his head, pulled the trigger.^[77] Marshall transferred the gun to Atencio, who, in turn, aimed the gun at his own head and pulled the trigger with no bullet exiting the chamber.^[78] The deceased followed suit after Atencio offered him the gun, facing a different fate: “when he pointed it at his own head and pulled the trigger, ‘[t]he cartridge exploded, and he fell over dead.’”^[79] The court affirmed both Marshall and Atencio’s convictions, placing no weight on the fact that Atencio handed the deceased the gun, not Marshall.^[80] In Persampieri, the victim (the defendant’s wife) threatened suicide after learning from the defendant of his intent to divorce her.^[81] The defendant provoked and goaded his wife, rather than attempting to “bring [her] to her senses.”^[82] When she retrieved a gun, the defendant assisted in loading it and handed it to her while emphasizing the safety switch’s off-position.^[83] She placed the butt of the gun on the ground but struggled with the trigger.^[84] The defendant suggested that she would succeed in pulling the trigger if she removed her shoe; she followed the defendant’s advice “at which point she successfully shot and killed herself.”^[85] The husband was convicted of involuntary manslaughter.^[86] The court held that he showed an audacious disregard for his wife’s well-being and the possible consequences of his actions.^[87]

In Atencio, Persampieri, and You, the defendants were physically with the victims when they ended their lives.^[88] In Carter, Carter was not physically with Roy when he took his own life.^[89] They spoke on the phone twice, but she was not physically there.^[90] Her absence gave Roy the opportunity to simply ignore her calls or hang up the phone, where ignoring someone in person is more difficult. In Atencio, the gun was passed to the victim directly by one of the defendants and in Persampieri, the defendant loaded and handed the gun directly to the victim.^[91] In Carter, Roy, without any physical help from Carter, acquired a generator, researched how to use it, and found a secluded spot to carry out his suicide.^[92]

III. Analysis

A. The Court Incorrectly Decided that Carter Owed Roy a Duty

Generally, people are only punished for what they do and not for what they fail to do because the “actus reus requirement is central to the criminal law.”^[93] Without an actus reus requirement, we could punish people simply for having evil thoughts.^[94] However, the law acknowledges that under certain circumstances, the omission of a duty owed by one person to another–when such omission results in the death of the person to whom the duty is owed–will make the other culpable of manslaughter.^[95] The foundation of this principle is that the omission must constitute a breach of a legal duty rather than a simple moral responsibility.^[96] An omission can be the basis for criminal liability when there is a statutory duty; special relationship; contractual duty; voluntary assumption of care that secludes the person, thereby preventing others from rendering aid; or, creating the risk of harm.^[97] Being that there was not a statutory duty,^[98] special relationship,^[99] contractual duty, or a voluntary assumption of care, the court said Carter owed Roy a duty because she created the risk of harm.^[100] The court held that Roy was the cause of the harm up until the time he got out of the truck.^[101] When he got out of the truck, he broke the chain of causation of his own actions; and when Carter instructed him to get back in, she became the cause of the harm through words alone.^[102] She told him to get back in the truck and he did.^[103]

It can be difficult to ascertain whether an actor’s conduct created a risk of harm.^[104] The Third Restatement of Torts provides an example to better illustrate when a duty is owed because a defendant created the risk of harm.^[105] A retail store operating in an unsafe and isolated area might be portrayed as creating a risk of criminal activity for customers.^[106] If the characterization were accepted, a duty would be imposed on the store to mitigate this risk for the people on site, including employees and customers.^[107] Yet, establishing whether the store generated such a potential risk of criminal activity necessitates an assessment of what might have transpired if the store were not operating.^[108] Naturally, questions arise: would a customer have faced a similar threat of attack elsewhere, or would they have opted out of late-night shopping but for the store’s existence?^[109]

In Carter, Roy had been treating his mental health issues for almost five years.^[110] The year before his death, Roy attempted to take his own life by taking an overdose of acetaminophen, but he was saved by a friend who contacted emergency services.^[111] Even before he met Carter, Roy had a history of struggling with similar, self-harming behaviors that he exhibited on the day of his suicide.^[112] Because the risk was already there, the court should not have concluded that Carter created the risk.

Additionally, depending on the jurisdiction, the fact that Carter was aware of the victim’s life-threatening situation may have subjected her to liability.^[113] Traditionally, American common law “never imposes a duty to rescue, except when a special relationship exists.”^[114] However, as technology continues to advance, many states have enacted laws that explicitly require a duty to report.^[115] Nine states, including Massachusetts, require a person to report a broad range of crimes, generally including violence.^[116] The Massachusetts statute is titled “Reports of Crime to Law Enforcement Officials” and states that

[w]hoever knows that another person is a victim of aggravated rape, rape, murder, manslaughter or armed robbery and is at the scene of said crime shall, to the extent that said person can do so without danger or peril to himself or others, report said crime to an appropriate law enforcement official as soon as reasonably practicable. Any person who violates this section shall be punished by a fine of not less than five hundred nor more than two thousand and five hundred dollars.^[117]

Being that suicide is not listed in this statute, there was no duty to report. Moving forward, it would be beneficial for the Massachusetts legislature to amend the statute to include suicide. If charged under this statute, the punishment would only be a fine, but it is better than nothing and would notify people in this kind of situation of what is and is not legally acceptable.

B. The Court’s Holding Blurred the Line Between Freedom of Speech and Criminal Liability

The First Amendment of the U.S. Constitution states that “Congress shall make no law . . . abridging the freedom of speech . . . .”^[118] But this freedom is not absolute.^[119] The Supreme Court has created narrow exceptions to the First Amendment but has never considered whether criminalizing speech that encourages another to commit suicide violates the right to free speech.^[120] The categories of speech that are excluded from First Amendment protection include “obscenity, defamation, fraud[ulent speech leading to deception], incitement, fighting words, true threats, speech integral to criminal conduct, and child pornography.”^[121] The most analogous category for the speech at issue here is fighting words. Fighting words are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”^[122] At first glance, it seems Carter’s speech may fall under this category, but that is unlikely. As the doctrine has evolved, courts have become more interested in the context of the speech rather than the content.^[123] The Supreme Court has gone so far as to say that for speech to be considered fighting words, the words must be directed to an individual in a face-to-face context.^[124] Similarly, one could argue that Carter’s speech was a true threat. The Supreme Court defines true threats as statements indicating that the speaker intends to commit an act of unlawful violence against a particular person or group.^[125] Prohibiting true threats “‘protect[s] individuals from the fear of violence’ and . . . ‘the possibility that the threatened violence will occur.’”^[126] However, in Carter, the defendant did not threaten the victim.^[127] Nothing indicates that Roy felt threatened and there is no evidence of the defendant saying, “kill yourself or else.”^[128] Because Carter’s speech does not fall into one of the excluded categories, restricting her speech is more difficult. Content-based restrictions on speech must survive strict scrutiny—the most exacting type of review—requiring that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.”^[129]

The first prong of the strict scrutiny analysis is easily satisfied because regulating speech that encourages suicide serves a compelling government interest. Preserving human life is arguably the most compelling government interest.^[130] However, the second prong poses more difficulty. The speech restriction needs to be narrowly tailored to achieve the compelling government interest.^[131] The government weighs two important state interests: preserving human life and protecting the right to free speech. The government must show that no less restrictive alternative can achieve its objective.^[132] A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows.^[133]

In Carter, the court found that the restriction of speech was narrowly tailored because the only speech it made punishable was “speech integral to [a course of] criminal conduct.”^[134] In this case, the speech was integral as it was “a systematic campaign of coercion on which the virtually present defendant embarked—captured and preserved through her text messages—that targeted the equivocating young victim’s insecurities and acted to subvert his willpower in favor of her own.”^[135] Thus, “[o]nly the wanton or reckless pressuring of a person to commit suicide that overpowers that person’s will to live has been proscribed.”^[136]

The standard prescribed by the court is unworkable. At what point does pressure overpower a person’s will to live? Many, if not all people, will endure hardship and pressure throughout their lives. According to a study performed by the American Bar Association in 2017, 17% of law students suffer from depression, 25% of law students are at risk for alcoholism, 37% of law students report mild to severe anxiety, and 6% of law students report having suicidal thoughts in the last year.^[137] If this is the applicable standard, then one may argue that the pressures put on law students by professors and parents are sufficient to overpower a person’s will to live. Does that mean that speech is not protected? The standard used by the court in Carter leaves many line-drawing problems.

Further, the court found that the speech in question was “speech integral to criminal conduct,” thus restricting speech based on the content.^[138] However, the court does not apply the narrowly tailored requirement, but rather determines that the speech at issue falls within “well-defined and narrowly limited classes of speech.”^[139] The court held, “[w]e are therefore not punishing words alone, as the defendant claims, but reckless or wanton words causing death. The speech at issue is integral to a course of criminal conduct and thus does not raise any constitutional problem.”^[140]

This holding is inconsistent with the idea that suicide is not a crime.^[141] If taking one’s own life is not a crime, then the speech in question is not integral to a course of criminal conduct. The court seems to work backwards in that it starts with the assumption that there was a crime and then says the speech was in furtherance of the crime; however, a crime never occurred. Similarly, this holding will make it onerous for people to seek help. Individuals may distance themselves from depressed or suicidal individuals due to the fear of saying the wrong thing and potentially being held criminally liable. Carter argued that she did what she did to help Roy.^[142] Carter said she knew that if he did not succeed that time, he would keep attempting suicide and she did not want him to live like that.^[143] The ambiguity in speech makes it easy to imagine a situation where a person’s intentions are pure, but their words do more harm than good.

Since Carter, many states have enacted statutes that criminalize assisting, aiding, and encouraging suicide.^[144] Many constitutional challenges have been brought, arguing that these statutes violate the First Amendment.^[145] In most cases, the courts have rejected the constitutional challenges, but in some, they have agreed.^[146] In State v. Melchert-Dinkel, the defendant challenged the constitutionality of a state statute that made it illegal to “intentionally advise[ ], encourage[ ], or assist[ ] another in taking the other’s own life.”^[147] The court found the statutory prohibition against assisting another in committing suicide survived strict scrutiny, but found that nothing in the definitions of “advise” or “encourage” required a direct, causal connection to a suicide.^[148] Moreover, the restrictions on advising and encouraging were sufficiently wide-reaching to allow the State to pursue legal action against general conversations about suicide involving groups or particular individuals.^[149]

The State of California has a statue that says, “[a]ny person who deliberately aids, advises, or encourages another to commit suicide is guilty of a felony.”^[150] This law became effective in 2019 and, despite its arguable overbreadth, has yet to be ruled unconstitutional.^[151] This statute does not seem to come within the narrowly tailored standard necessary when restricting content-based speech.^[152] Some people are much more easily “encouraged” than others—should that be a factor? It leaves unclear as to what point speech passes the threshold necessary to be charged under this statute. Is telling someone to kill themselves once enough? Is doing nothing when someone says they want to kill themselves enough?

Despite efforts, Massachusetts still lacks a law criminalizing the act of coercing someone to commit suicide.^[153] In 2021, “Conrad’s Law,” Bill S.1032, received a hearing in the Judiciary Committee.^[154] On February 7, 2022, the committee agreed to send the bill for further study.^[155] No further actions have been reported.^[156] Being that Conrad’s Law does not define “encourage,” if passed, it will likely be found unconstitutional due to its vagueness and disregard for free speech principles.^[157]

C. The Court Deprived Carter of Her Due Process Rights by Deciding Law Retroactively

The U.S. Supreme Court has consistently interpreted due process, as required by the Constitution, to ensure no person is obligated “to speculate as to the meaning of penal statutes.”^[158] In fairness, “[a]ll are entitled to be informed as to what the [law] commands or forbids.”^[159] Thus, the state is prohibited from prosecuting defendants “unless the statute ‘define[s] the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.’”^[160] Fairness drives this constitutional standard by allowing people to knowingly conduct their lives in a way that avoids punishment.^[161] This safeguards against capricious enforcement of the law by law enforcement, jurors, and judges.^[162] Additionally, these standards give enforcers guidance as to how te people expect them to conduct their professional responsibilities.

In Carter, “the defendant argue[d] that she lacked fair notice that she could be convicted of involuntary manslaughter for her role in the victim’s suicide and that her conviction therefore violated her right to due process.”^[163] Carter contended that the common “law of involuntary manslaughter was unconstitutionally vague as applied to her conduct.”^[164] The court rejected this argument.^[165] The standard the court used was “[a] statute is unconstitutionality vague if [people] of common intelligence must necessarily guess as its meaning . . . . If a statute has been clarified by judicial explanation, however, it will withstand a challenge on grounds of unconstitutional vagueness.”^[166] The court said, “it has long been established in common law that wanton or reckless conduct that causes a person’s death constitutes involuntary manslaughter.”^[167]

Again, the court seems to work backwards. Even though the wanton or reckless conduct element is well-established in Massachusetts, it has not been well-established that words alone can satisfy that element.^[168] Similarly, manslaughter is a common law crime that has not been codified in Massachusetts. In a majority of states, a person may only be tried for an offense that is specified in the statutory law of the state.^[169] For due process purposes, a “statute must give sufficient notice to enable a reasonable person to comprehend what is prohibited.”^[170] In Washington v. Glucksberg, the U.S. Supreme Court held that Washington’s statute criminalizing the promotion of suicide attempts did not violate the Fourteenth Amendment’s guarantee of due process because the statute provided notice and a right to assistance in committing suicide was not a fundamental liberty interest.^[171] This case differs in that there was not a statute prohibiting the encouragement of suicide and the right to free speech is a fundamental liberty interest.^[172] Thus, Carter did not receive fair notice and was deprived of her due process rights.

IV. Conclusion

The court’s holding in Carter v. Commonwealth was incorrect because the First Amendment protected Carter’s speech. Though immoral, the speech was not illegal, and the content-based restriction imposed by the court should not have survived strict scrutiny. Additionally, Carter was deprived of her Fifth Amendment right to due process. This was the first time the court convicted someone of common law manslaughter under these circumstances and without a statute expressly prohibiting the speech. Thus, Carter was deprived of notice and convicted of an arguably previously unrecognized crime. Even though we now have this precedent, the standard is unworkable because it is vague and overly broad. The court’s holding blurred the line between free speech and criminal conduct. The Supreme Court should take up a case like Carter to restore First Amendment rights and set the record straight.

Victoria Lujan