A new legal precedent means Americans can go to jail for what they say

Beware of dangerous communications.
Beware of dangerous communications.
Image: Reuters/Andrew Kelly
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In the American legal tradition, there’s no duty to rescue a person in danger—except if you’re the one who creates the danger, putting someone in peril. Say you see a kid drowning in a pool. You don’t have to do anything. But if you deliberately or otherwise pushed the child in, you must act.

Now, new technologies are reshaping what it means to create danger, and when you have to act. A recent state juvenile court decision found that sending text messages, in certain cases, can be enough to legally create danger and obligate action. On June 16, a judge in Taunton, Massachusetts found Michelle Carter guilty of involuntary manslaughter based on text messages she sent to her boyfriend, Conrad Roy III, as he attempted to commit suicide in 2014.

Roy, 18 years old at the time, was poisoning himself with carbon monoxide in his truck when he got out and wrote to Carter, saying he was scared. Carter—then 17—instructed him to get back in the vehicle. He listened to her texts, and soon after died of carbon monoxide poisoning.

“The Commonwealth [of Massachusetts] has proven beyond a reasonable doubt that Ms. Carter’s actions, and also her failure to act where she had a self-created duty to Mr. Roy since she had put him into that toxic environment, constituted each and all wanton and reckless conduct,” according to judge Lawrence Moniz. He ruled that Carter had a duty to call authorities and to tell Roy not to kill himself. Carter now faces up to 20 years in prison; her sentencing is set for Aug. 3.

The verdict is controversial. Massachusetts law doesn’t criminalize encouraging suicide, for one. There is also no duty to report a suicide attempt in the state. The messages encouraging Roy to kill himself were certainly reprehensible, but some argue that considering them criminal could be a leap, legally speaking.

The decision, Moniz said, is based on two matters: a 1999 case, Commonwealth v. Levesque, which found a homeless couple guilty of involuntary manslaughter after failing to report an accidental warehouse blaze that killed six firefighters, and a 200-year-old conviction for “murder by counseling.”

In 1816, George Bowen, a prisoner, was tried for and convicted of murder after he encouraged a fellow inmate, already on death row, to hang himself. This unusual case arose from circumstances that are quite different from Carter’s case involving text messages. Bowen counseled the death row inmate from a nearby cell and outraged the town of Northampton because he deprived citizens of a much-anticipated event, a public execution, according to University of Massachusetts history professor Jack Tager’s 2010 account of the case.

If Carter appeals the juvenile court decision, her lawyers may try to argue that it was an error for Moniz to reach as far back as 1816 for guidance, and to a case involving a very different set of parties under different circumstances. Her attorney, Joseph Cataldo, on June 19 told People,  “The case presented some very novel legal issues, and we’re very disappointed in the outcome of the verdict.”

The defense lawyer Ed Ryan, who represented one of the accused in the Levesque case, told radio station WBUR that he doesn’t believe that failure to report a fire, the issue in his case, is instructive in Carter’s criminal matter because she didn’t create the danger. Here, Roy was already a danger to himself, says Ryan, so Carter had no duty to save him. “I don’t think you can premise a conviction on her failure to act because without the creation of the danger, by the individual, there is no duty to act,” he said.

Criminal liability for words isn’t totally unheard of, though. For example, someone who makes a threat and has the apparent ability to carry it out in the moment could be prosecuted for assault, and serve time. The crime then is premised on the possibility of violence, however, and not on the words alone.

Similarly, people can be prosecuted for hate speech—but again, only when that speech is associated with an inducement or incitement to violence. There must be more than just ugly puffery. Even charges for disorderly conduct, say, or an arrest at a political protest—both of which might be associated with speech —tend to be accompanied by a violent component.

The verdict in Carter’s case seems to shift the legal landscape, signaling that cultural notions about verbal violence and its dangers are changing along with the ways we communicate.

Matthew Segal, legal director of the Massachusetts chapter of the ACLU, said in a statement on June 16 that the case has far-reaching implications, and could have a chilling effect on free speech. ”Mr. Roy’s death is a terrible tragedy, but it is not a reason to stretch the boundaries of our criminal laws or abandon the protections of our constitution,” he said.