Michelle Carter, Free Speech and a Decision that Raises More Questions

When Michelle Carter told Conrad Roy III to end his life through texts and phone calls, it was “speech integral to [a course of] criminal conduct,” according to the Massachusetts Supreme Judicial Court.

I have been trying to wrap my head around what that actually means in this case and whether or not the decision constricts First Amendment protections in Massachusetts. I think it may, and I think this could be another example of an ugly case making bad law.

The SJC is quoting the Supreme Court when it calls Carter’s texts and calls “speech integral to [a course of] criminal conduct.” It is hearkening back to Giboney v. Empire Storage & Ice Co., a 1949 decision where the high court created one of the exceptions to the First Amendment’s protections.

“It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute,” Justice Hugo Black wrote for a unanimous Supreme Court. “We reject the contention now.”

The doctrine, on its face, makes sense. When speech is tied to illegal conduct — like, for example, setting up a murder-for-hire scheme — the speaker should not be able to hide behind the First Amendment. But the problem with the exception is that it has never been sufficiently narrowed, and that gives courts wide latitude when they are posed with difficult questions.

The example, in this case, is the problem.

By labeling Carter’s speech as being integral to a course of criminal conduct, the SJC did itself a favor. It no longer had to go through the arduous task of determining whether the state was right to punish the content of her speech — an undertaking that would require the court to conduct a far more searching strict scrutiny analysis.

“We do not apply the narrow tailoring required by strict scrutiny in these contexts but rather determine whether the speech at issue falls within these ‘well-defined and narrowly limited classes of speech,’” Justice Scott Kafker wrote for the SJC.

Outside the Giboney rule, there are a number of “well-defined” classes of speech that are not guarded by the First Amendment. Fighting words, obscenity, defamatory statements, true threats, fraud and words that incite imminent lawless action fall outside constitutional protection, but none of those directly apply to Carter’s speech or conduct.

The closest would be the “imminent lawless action” standard established by the Supreme Court in Brandenburg v. Ohio. There, the court held that the “[f]reedoms of speech and press do not permit a State to forbid advocacy … except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

But here, Carter did not advocate for “lawless action.” She told Roy to kill himself, but neither suicide nor encouraging suicide are defined criminal (“lawless”) acts in Massachusetts.

It would seem this logic would apply to the “speech integral to criminal conduct” exemption as well. The Supreme Court of Minnesota came to this same conclusion when it was wrestling with a case regarding whether someone could be prosecuted for encouraging someone to commit suicide.

“[T]he major challenge with applying the ‘speech integral to criminal conduct’ exception is that suicide is not illegal in any of the jurisdictions at issue,” Justice G. Barry Anderson wrote for the majority. “The holding in Giboney specifically stated that the exception was for speech integral to conduct ‘in violation of a valid criminal statute,’ and there is no valid statute criminalizing suicide here.”

It appears the SJC is hanging its hat on the idea that the statute regarding involuntary manslaughter is valid, and Carter’s words were, in effect, “an integral part of conduct in violation of” that law. But, when read with the facts of the Giboney case in mind, it becomes harder to make that connection.

In Giboney, the Supreme Court upheld an injunction that prevented union picketing. The idea was that the union was attempting to force a distributor’s hand and have it enter into an agreement that would have violated state antitrust law. Put another way, the speech would have induced the company to violate a valid law.

What law did Michelle Carter force Roy to violate? Did her speech lose protection because she caused him to commit an act that did not, on its own, violate state law?

Eugene Volokh, a renowned legal scholar, may have answered those questions in his analysis of the Giboney rule.

Giboney has … become, at times, a tool for avoiding serious First Amendment analysis — a way to uphold speech restrictions as supposedly fitting within an established exception, without a real explanation of how the upheld restrictions differ from other restrictions that would be struck down,” Volokh wrote.

That, to me, is the going concern from the Carter decision.

On one hand, the SJC signed off on its First Amendment analysis with a promise. Kafker wrote that only “the wanton or reckless pressuring of a person to commit suicide that overpowers that person’s will to live has been proscribed.”

But, on the other hand, the court also signaled that it is willing to use Giboney to expand restrictions on speech that do not fit neatly into any of the other exceptions. That, to me, is concerning.

If this rule can be stretched to capture speech that causes non-criminal conduct, how are we to know the outer contours of its reach in our digital age?