The US Supreme Court justices are on vacation. But already their fall workload is piling up. Among the decisions awaiting them is whether or not to review an extremely controversial case that turned texting into a homicide crime.
In 2014, when Michelle Carter was 17 years old, she encouraged her 18-year-old boyfriend Conrad Roy III to kill himself via text message, both in the days leading up to his death and as he was attempting suicide. She was convicted of involuntary manslaughter in 2017 in a Massachusetts juvenile court. The ruling set an unusual precedent. Her words, written at a distance, were considered criminal acts. That decision was upheld by Massachusetts appeals courts. Now she’s challenging the conviction again.
On July 8, Carter’s counsel filed a petition for review at the nation’s highest court, which Quartz has reviewed, arguing that her conviction violated the US Constitution’s First Amendment free speech protections and Fifth Amendment Due Process Clause. “Michelle Carter did not cause Conrad Roy’s tragic death and should not be held criminally responsible for his suicide,” said her attorney Daniel Marx of the Boston law firm Fick & Marx LLP in a statement to Quartz. “This petition focuses on just two of the many flaws in the case against her that raise important federal constitutional issues for the US Supreme Court to decide.”
Specifically, he argues that Carter’s conviction violates the US Constitution’s First Amendment free speech protections and the Fifth Amendment’s Due Process Clause, which guarantees clarity and consistency in the law.
Carter’s attorneys write in the petition that Roy had a long history of attempting suicide, which began before he and Carter became friends in 2012, and that Carter had urged him to seek professional help before the ultimate exchanges that ended with him taking his life and her sentenced to 2.5 years in custody for involuntary manslaughter. “Carter was convicted for her words alone—what she said and failed to say to Roy. Carter neither provided Roy with the means of his death nor physically participated in his suicide,” the petition states, noting that Roy drove alone to a parking lot, where he filled his truck with carbon monoxide.
The Massachusetts courts found that Carter’s texts weren’t protected by the First Amendment because her words to Roy were “speech integral to unlawful conduct.” Carter’s attorneys argue that this ruling conflicts with other states’ cases, where judges have not found similar exceptions to free-speech protections, and that the high court must clarify the extent to which speech is really limited. In Minnesota, for example, a 2014 case vacated assisted-suicide convictions and invalidated portions of the assisted-suicide statute that infringed on free speech. Carter’s counsel argues that the Massachusetts decision creates confusion among judges nationwide about the criminality of communication surrounding suicide.
The Massachusetts ruling had noted that not every person who verbally encourages suicide will face prosecution, as Carter did, but it didn’t, according to her attorneys, provide any guidance as to when verbal conduct crosses the line into criminality. Carter’s petition argues that Massachusetts ignored the Supreme Court’s warning that there need to be “reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement.”
Carter’s conviction is based on an exception to free speech protections that came out of a 1949 high court case involving a labor strike. In that matter, the laborers charged with a crime didn’t just speak up about their labor dispute but also threatened union members with violence to prevent them crossing the picket line. Those illegal assaults couldn’t be separated from the laborers’ speech. Ultimately, their activities, which were criminal, were deemed inextricable from the laborers’ speech, which would otherwise have been free.
But Carter’s attorneys argue that she, unlike the laborers in question whose acts created this exception, didn’t do more than use words, and that the Massachusetts court failed to correctly analyze the free speech exception. Her words may have been harmful, but they didn’t rise to the level of illegal, criminal conduct, according to her lawyers. “The free speech issue that this petition presents has important implications for federal constitutional law even beyond Carter’s case, which has received widespread publicity, and apart from assisted suicide, which remains an issue of national importance,” their petition to the high court states.
They also argue that Carter’s right to due process, protected by the Fifth Amendment, was violated when she was convicted of involuntary manslaughter. “[T]he vague common law of involuntary manslaughter fails to provide guidance to prevent arbitrary and discriminatory enforcement in morally fraught cases involving suicide,” Marx explained in his statement to Quartz. There is no statute that specifically states that texting can reach a level of criminal negligence amounting to involuntary manslaughter and qualifying for conviction. Unlike, murder in the first degree, for example, the elements of involuntary manslaughter aren’t clearly outlined.
From his perspective, Massachusetts has created a great deal of confusion about when electronic communications can be equated with physical action, and when free speech veers into illegal territory. “Can a series of subtle hints suffice for criminal liability? When do words cross the line from permissible, encouragement, advice, or persuasion to prohibited coercion,” Carter’s petition asks.
The result of Carter’s conviction, her lawyers say, is that now the law will be applied in an arbitrary and unpredictable fashion across the country, allowing prosecutors to decide when words become a crime rather than following clear guidelines. This is precisely what the Due Process Clause is meant to prevent. “Put simply, a vague law is no law at all,” Carter’s attorneys write. They urge the high court to review their client’s case for the sake of consistency and uniformity nationwide, warning that her conviction “establishes a bad precedent that promotes convictions based on the subjective heinousness of a defendant’s words as opposed to established legal standards.”
We’ll find out if the justices agree that these arguments warrant review when the Supreme Court takes the bench again this autumn.