- The Washington Times - Sunday, July 28, 2019

Words can hurt, but the Supreme Court now has been asked to decide whether they can kill.

Michelle Carter, who was convicted of involuntary manslaughter in Massachusetts after encouraging her boyfriend over the phone to take his own life in 2014, has asked the justices to take up her case and overturn the conviction.

Court watchers doubt the justices will take the case, but the legal conflict has sparked debates on social media and at water coolers across the country.

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Stephen Morse, a law professor at the University of Pennsylvania, says he doesn’t understand how the trial court convicted her or why the Massachusetts Supreme Judicial Court upheld the guilty finding.

“The Massachusetts court went much too far,” Mr. Morse told The Washington Times. “Few prosecutors would have brought that case.”

The death in question was that of Conrad Roy III, who at age 18, took his life by poisoning himself with carbon monoxide in his truck in a parking lot in Fairhaven.

Roy and Carter, then 17 years old, had built a long-distance relationship since meeting two years earlier, and spoke regularly — including about suicide.

In the days leading up to Roy’s death, they strategized about it, trading ideas about for how to produce carbon monoxide.

“Portable generator,” Carter suggested, according to one text message used as evidence in the case.

In another exchange, when Roy expressed reluctance, Carter replied: “I thought you wanted to do this. The time is right and you’re ready, you just need to do it! You can’t keep living this way.”

As he sat in his truck he spoke again with Carter, who was 50 miles away. At one point he got out of the truck to get fresh air, but Carter told Roy to “get back in,” according to court records.

The trial judge found that Carter knew the truck had become a “toxic” environment when she told Roy to get back in, and could hear him coughing as he inhaled the exhaust emissions.

Because she did not call for help or tell Roy to stop, she had engaged in wanton and reckless conduct that caused the victim’s death, amounting to involuntary manslaughter, the judge ruled. Carter was sentenced to serve 15 months.

Her lawyers, in their appeal to the Supreme Court this month, said Carter’s words were protected by the First Amendment and weren’t “speech integral to criminal conduct,” as the trial judge had found.

The lawyers said the ruling broke new ground in convicting someone who wasn’t present at a death, based on words alone.

They pointed to another case in Minnesota in which a man’s conviction was invalidated in part for encouraging the suicides of people he had met online.

Minnesota’s law prohibits an individual from advising or encouraging someone else to take their life. The state’s Supreme Court ruled it violated the First Amendment to prosecute someone for “encouraging or advising another to commit suicide.”

Mr. Morse said Carter, now 22, isn’t a sympathetic defendant, but he said he First Amendment claims in this case are “persuasive.”

Eugene Volokh, a law professor at the University of California, Los Angeles, also questioned the Massachusetts courts’ decisions, but doubted the Supreme Court will take the case.

“The justices tend to look for questions on which there is a disagreement between lower courts, or for questions of real national importance. This particular question (thankfully) comes up pretty rarely,” Mr. Volokh said.

Massachusetts does not have an assisted suicide law; Carter was charged and convicted under its manslaughter statute. The state’s high court, in upholding the conviction, rejected the First Amendment defense, saying there are many other crimes that occur through speech.

“The only verbal conduct punished as involuntary manslaughter has been the wanton or reckless pressuring of a vulnerable person to commit suicide,” Justice Scott L. Kafker wrote in the opinion for Massachusetts’ top court.

Roy’s mother last week joined state lawmakers to announce a legislation that would remove all doubt about criminality by creating a new offense for pressuring someone to take their own life. The punishment would include up to five years in prison.

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