The First Amendment and Speech Urging Suicide: Lessons from the Case of Michelle Carter and the Need to Expand Brandenburg's Application

Abstract

This Article examines the level of First Amendment protection that applies when a defendant-speaker is charged with involuntary manslaughter based on successfully urging a person to commit suicide. The Supreme Judicial Court of Massachusetts’ February 2019 decision in Commonwealth v. Carter provides a timely analytical springboard. The Article argues that courts should adopt the United States Supreme Court’s test for incitement created a half-century ago in Brandenburg v. Ohio before such speech is deemed unprotected by the First Amendment. It contends this standard is appropriate even in involuntary manslaughter cases where intent to cause a specific result is not required under criminal law. The Article concludes that the Brandenburg test, which embraces a specific intent element, strikes a better balance between First Amendment interests and criminal law than does the elastic “integral to criminal conduct” standard from Giboney v. Empire Storage & Ice Co. that was applied in Commonwealth v. Carter. Ultimately, although Brandenburg might not have saved Michelle Carter from conviction had it been used, it could protect future defendants where demonstrating intent seems less clear-cut.