“You Just Need to Do It!”: When Texts Encouraging Suicide Do Not Warrant Free Speech Protection

Abstract

Is it constitutional to hold an individual criminally liable for another’s suicide when words alone drive the conviction? After a Massachusetts court convicted Michelle Carter of involuntary manslaughter following the suicide of her boyfriend Conrad Roy in 2014, the answer seemed to be “yes.” Although Carter’s conviction—which focused on the content of her text messages—was a first-of-its-kind, that was not the case for long. Just five years later, the Commonwealth of Massachusetts brought similar charges against Inyoung You for causing the suicide of her boyfriend, Alexander Urtula, also via text. Although the facts in the two cases are not identical, they both raise the question of whether the First Amendment to the U.S. Constitution protects this type of speech. The United States is built upon a foundation that safeguards freedom of speech. There are important limits, however, on just how far that protection extends. In 2016, the Massachusetts Supreme Judicial Court in Commonwealth v. Carter focused on a First Amendment carveout—speech integral to criminal conduct—when convicting Carter of involuntary manslaughter. But as critics have emphasized, that was arguably a stretch of the exception. This Note argues that, although the reasoning of the Massachusetts Supreme Judicial Court was not terribly convincing, criminalizing speech that encourages another person’s suicide can be constitutional. Ultimately, Massachusetts’s proposed bill, aptly named Conrad’s Law, which criminalizes this type of speech and conduct, could both eliminate future First Amendment questions and protect those struggling with mental illnesses.