Is Texting ‘Free Speech’ When It Encourages Suicide?

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Robin Barton

Robin Barton

The Centers for Disease Control and Prevention recently released a report showing that, after years of nearly consistent decline, suicide rates in the U.S. have increased from 1999 to 2014.

In particular, suicide among adolescents and young adults is increasing and among the leading causes of death for those demographic groups. For example, suicide is the second leading cause of death among people aged 15-34.

Although 17% of high school students seriously considered attempting suicide in the prior 12 months and 3.9% of the adult U.S. population reported having suicidal thoughts in the prior year, a much smaller percentage of each group followed through on those thoughts and actually attempted suicide.

So what pushed those individuals from merely contemplating suicide to actually doing it?

There are many factors that can drive people to end their lives, including depression and other mental illnesses, substance abuse and stressful life events. However, it’s unlikely that pressure from a friend or loved one to kill oneself is a common cause of suicides.

After all, what kind of person would actually urge someone she ostensibly loved to commit suicide? And if you do encourage someone who actually kills himself as a result, are you guilty of a crime?

That issue is the focus of a pending case in Massachusetts, which was discussed in depth in a cover story by New York magazine.

Conrad Roy committed suicide at age 18 by locking himself in his truck with a gasoline-powered water pump running. He died from carbon monoxide poisoning.

After his death, a search of his cell phone revealed hundreds and hundreds of texts from his girlfriend Michelle Carter, many of which actively encouraged him to commit suicide. As a result of those texts, Carter is now facing an involuntary manslaughter charge.

Her defense lawyers asked the court to dismiss the charge, arguing that there was insufficient evidence of involuntary manslaughter because Carter’s conduct didn’t extend beyond words.

Specifically, Carter’s attorneys argued that, because she was neither physically present when Roy committed suicide nor provided him with the instrument with which he killed himself, she didn’t cause his death.

Verbally encouraging someone to commit suicide—no matter how forcefully—can’t constitute wanton or reckless conduct, argued the defense. That is, mere words can never overcome a person’s will to live and so can’t be the cause of a suicide.

But on July 1, 2016, the Supreme Judicial Court of Massachusetts denied the defense’s motion, ruling that Carter must stand trial for involuntary manslaughter on the theory that her wanton and reckless conduct caused Roy’s death.

The court’s unanimous decision focused on several key factors.

First, Carter knew Roy had a history of mental illness. He’d been receiving treatment for mental health issues for almost three years. She also knew he’d previously tried to commit suicide by taking an overdose of acetaminophen.

Armed with this knowledge, a reasonable person in Carter’s position would have  realized “the grave risk” to Roy created by her continual pressure to commit suicide.

Second, Carter and Roy discussed suicide a lot—and not in vague terms either.

Specifically, Carter actively and aggressively encouraged Roy to kill himself, instructed him as to when and how he should do it, assuaged his concerns over killing himself and chastised him when he delayed doing so.

For example, the court said the theme of those text messages can be summed up in the phrase used by Carter four times between July 11-July 12, 2014 (the day on which Roy committed suicide): “You just [have] to do it.”

The tone of her emails, many of which you can read in the court’s decision, was pushy, bossy and sometimes simply mean. Carter frankly seems almost impatient and frustrated that Roy just won’t kill himself already.

In one text, for example, she says, “SEE THAT’S WHAT I MEAN. YOU KEEP PUSHING IT OFF! You just said you were gonna do it tonight and now you’re saying eventually. . . .” (emphasis in the original)

Moreover, Carter apparently spoke to Roy while he was in his truck about to kill himself. After he died, Carter texted a friend, admitting that, at one point, Roy got out of his truck because he was “scared” and she ordered him to get back into the truck.

As the court explained, the grand jury could have found that an ordinary person under the circumstances would realize the gravity of the danger posed by telling Roy, who was mentally fragile, predisposed to suicidal inclinations and in the process of killing himself, to get back in a truck filling with carbon monoxide and “just do it.”

So the court reasoned that although Carter wasn’t physically present when Roy committed suicide, her constant communication with him by text message and by telephone leading up to and during the suicide made her presence at least virtual.

The court said, “In sum, we conclude that there was probable cause to show that the coercive quality of the defendant’s verbal conduct overwhelmed whatever willpower the eighteen year old victim had to cope with his depression, and that but for the defendant’s admonishments, pressure, and instructions, the victim would not have gotten back into the truck and poisoned himself to death.”

The defense also argued that Carter’s text messages to Roy were free speech protected by the First Amendment. But the court rejected this argument.

The court found that the speech at issue in this case isn’t protected under either the U.S. Constitution or the Massachusetts Declaration of Rights because the state “has a compelling interest in deterring speech that has a direct, causal link to a specific victim’s suicide.” (Note, however, that suicide or assisting in a suicide isn’t a crime in Massachusetts, which is why Carter was charged with involuntary manslaughter.)

Free speech experts raised concerns that this case could end up criminalizing speech surrounding suicide and deter people from trying to help those considering killing themselves.

But the court was careful to distinguish Carter’s conduct.

As the court explained, “It is important to articulate what this case is not about. It is not about a person seeking to ameliorate the anguish of someone coping with a terminal illness and questioning the value of life. Nor is it about a person offering support, comfort, and even assistance to a mature adult who, confronted with such circumstances, has decided to end his or her life.

“These situations are easily distinguishable from the present case, in which the grand jury heard evidence suggesting 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.”

Of course, surviving this motion to dismiss was just the first hurdle for the prosecution. Although a grand jury indicted Carter and the court upheld that indictment, a jury at trial could still acquit her.

For example, the defense could argue at trial that because Carter and Roy’s relationship was largely virtual, dependent on voluminous texts and phone calls, the relationship may not have seemed real to Carter. She may have viewed it almost like a virtual game and so didn’t understand the real world consequences of her online actions.

But the court found that Carter understood the repercussions of her role in Roy’s death.

Before his suicide, she tried—apparently unsuccessfully—to have him delete the text messages between the two of them. And after learning that the police were looking through Roy’s cellphone, she sent the following text message to a friend, Samantha Boardman: “Sam, [the police] read my messages with him I’m done. His family will hate me and I can go to jail.”

The defense has also suggested that Carter may have mental health issues of her own.

But even if that claim is true, after reading just a handful of the texts exchanged between she and Roy, it’s very difficult to be sympathetic to her.

They often say that talk of suicide is a cry for help. If that’s correct, Roy was practically screaming for help. Read his text messages to Carter. He was unhappy and depressed but also unsure that suicide was the right thing to do. In fact, his texts suggest that he’d been delaying suicide for weeks.

But in the end, when Roy was on the fence as to whether he should really end his life, instead of urging him to get help or confiding in an adult or a professional, Carter, someone who claimed to love Roy and who had influence over his behavior, just turned up the pressure.

She could have stopped him and she knew it. But she didn’t.

As Carter admitted to Boardman, “I helped ease him into it and told him it was okay, I was talking to him on the phone when he did it I coud [sic] have easily stopped him or called the police but I didn’t.”

When a friend is standing on a precipice begging for help, you extend a hand and pull him back. You don’t push him over the edge.

Carter may not have physically killed Roy. But through her texts, she pressured and manipulated him into ending his life by doing everything short of loading a metaphorical gun and handing it to him. And for those “mere words” she should be held criminally responsible for his death.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report.  She welcomes readers’ comments.

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