United States Supreme Court considering a First Amendment challenge to Michelle Carter’s conviction.  Michelle Carter, the 17-year-old who was convicted of involuntary manslaughter for the death of her boyfriend, Conrad Roy III, when she had sent text messages encouraging him to commit suicide, has petitioned the U.S. Supreme Court for certiorari arguing that her conviction violates both the First and Fifth Amendment.

Carter argues that her case, which garnered extensive public attention and media coverage around the globe, is an appropriate vehicle to address these First and Fifth Amendment constitutional questions.

Carter wastes no time in the petition pointing out to the Court how unprecedented her conviction is stating that, “Massachusetts is the only state to have affirmed the conviction of a physically absent defendant who encouraged another person to commit suicide with words alone.”

Carter claims that her texts and communications with her boyfriend did not constitute speech that was “an integral part of conduct in violation of a valid criminal statute,” and therefore, her conviction for involuntary manslaughter based on words alone violates the Free Speech Clause of the First Amendment.

The Supreme Judicial Court of the Commonwealth of Massachusetts (SJC), when affirming Carter’s conviction, held that the First Amendment does not protect words assisting or encouraging a person to commit suicide.  The SJC’s holding conflicts with several other state supreme court decisions that have refused to apply the same exception in similar circumstances. Additionally, due to the confusion amongst the federal circuit courts and disagreements among First Amendment scholars, Carter argues that her case provides the Court an excellent opportunity to clarify the scope of the narrow exception to the Free Speech Clause, “speech integral to unlawful conduct.”

The “speech integral to unlawful conduct” exception comes from Giboney v. Empire Storage & Ice Co, a U.S. Supreme Court case decided in 1949 which affirmed an injunction against picketing in a civil labor case.  Carter argues that the SJC mischaracterized Giboneyas a criminal case “upholding a conviction for speech” when the SJC rejected Carter’s First Amendment defense.  Carter claims that the SJC also misconstrued and significantly expanded this narrow exception to the First Amendment when the SJC held that Carter’s verbal encouragement of Roy’s suicide—the “only speech” at issue in this case—was “speech integral to criminal conduct.”

Carter also petitions the Court to clarify the limited scope of the “speech integral to criminal conduct” exception from Giboneybecause the free speech issue in Carter’s case has important implications for federal constitutional law beyond Carter’s case, and apart from assisted suicide, which is an important national issue. Additionally, Carter points out that federal judges and academic scholars alike have criticized the “speech integral to criminal conduct” exception as ambiguous and incoherent.

Carter further claims that her conviction violates the Due Process Clause of the Fifth Amendment because the common law of involuntary manslaughter “fails to provide reasonably clear guidelines to prevent ‘arbitrary and discriminatory enforcement’” in assisted and encouraged suicide cases.

By holding that Carter had fair notice that her “verbal conduct” could constitute involuntary manslaughter, the SJC decided an important federal question concerning due process.  Carter claims the SJC overlooked the other half of the constitutional analysis of due process, however, when it focused exclusively on notice.  Carter goes on to state that the SJC’s holding directly conflicts with the Court’s decisions that require “reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement.”

Carter recognizes that the SJC “acknowledged that not every person who verbally encourages, or even physically assists, in a suicide should face prosecution,” but that the SJC “provided no guidance to distinguish sympathetic cases of assisted suicide from culpable cases of unlawful killing, leaving those critical decisions to the ad hoc, subjective judgements of prosecutors and judges.”

*The US Supreme Court asked Massachusetts Attorney General Maura Healey’s office to respond in writing to Carter’s petition no later than September 23, 2019.  No further updates are known at this time.