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••

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•• ~upreme
COMMONWEALTH OF MASSACHUSETTS

Jubtctal Qtourt
•• No. SJC-12502

•• MICHELLE CARTER,

••
APPELLANT,

v.

•• COMMONWEALTH OF MASSACHUSETTS,

•• APPELLEE •

•• ON APPEAL FROM
THE SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY

••
•• BRIEF OF AMICI CURIAE THE AMERICAN CIVIL LIBERTIES
UNION AND THE AMERICAN CIVIL LIBERTIES UNION OF
MASSACHUSETTS

••
•• Brian Hauss*
AMERICAN CIVIL LIBERTIES
Matthew R. Segal
BBO #654489

•• UNION
125 Broad Street
New York, NY 10004
Ruth A. Bourquin
BBO #552985
AMERICAN CIVIL LIBERTIES UNION

•• (212) 549-2500
bhauss@aclu.org
FOUNDATION OF MASSACHUSETTS, INC.
211 Congress Street

•• *Pro Hac Vice Motion


Boston, MA 02110
(617) 482-3170

•• Pending msegal@aclum.org

••
•• SEPTEMBER 2 0 18

••
••

••
••
•• TABLE OF CONTENTS

•• Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

•• Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

•• Interests of Amici Curiae . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of the Case and the Facts . . . . . . . . . . . . . . . . . 3

•• Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

•• Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

•• I. Construing the common law crime of involuntary


manslaughter to prohibit speech encouraging

••
suicide renders it void for vagueness ......... 9

A. A law violates due process if it fails to

•• put potential defendants on fair notice,


or if it confers too much discretion on

•• B.
prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

The conviction violates due process

•• because she lacked adequate notice that


encouraging suicide could constitute

•• involuntary manslaughter . . . . . . . . . . . . . . . . 14

1. The common law did not provide notice

•• that encouragement could constitute


wanton and reckless nconduct." ....... 14

•• 2. The common law did not provide adequate

••
notice that encouraging suicide could
create an affirmative duty to act .... 20

•• C. Applying the crime of involuntary


manslaughter to encouragement also

•• violates due process because it is so


standardless that invites arbitrary
and discriminatory enforcement . . . . . . . . . . 23

••
•• i


••
••
II. Application of the common law crime of
involuntary manslaughter to encouragement ••
••
alone violates the First Amendment to the
United States Constitution and Article 16
of the Declaration of Rights . . . . . . . . . . . . . . . . . 26

A. The prosecution of speech encouraging ••


suicide is a content-based regulation
of speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
••
B. This prosecution based only on speech
encouraging suicide is invalid because ••
the law being applied cannot survive
strict scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . 29 ••
III. A conviction for causing someone's death
through words alone is unconstitutional ••
without a finding of specific intent ....... 33
••
••
A. Specific intent is an essential element
of a crime consisting of speech alone ... 33

B. Requiring specific intent for a crime


consisting solely of speech comports with ••
longstanding criminal law and free speech
principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
••
c. A specific intent requirement is
particularly important in the era of ••
online speech . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Conclusion .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
••
••
••
••
••
••
ii
••

••
••
•• TABLE OF AUTHORITIES

•• CASES

•• Alegata v. Commonwealth,
3 53 Mass • 2 8 7 ( 19 6 7 ) • • . • • . . • • . . • . . . • . • • . . . • . • 10 , 23

•• Bible Believers v. Wayne Cty., Mich.,


805 F. 3d 228 (6th Cir. 2018) ••.•••..••.•••.•..••. 34

•• Bouie v. City of Columbia,

•• 378 u.s. 347 (1964) . • . . . • . . . • • . • . • . • • . • • . . • . . • . . . 12

Brandenburg v. Ohio,

•• 395 u.s. 444 (1969) 28, 33

••
Commonwealth v. A Juvenile,
368 Mass. 580 ( 1975) . . . . . . . . . . . . . . . . . . . . . . . . . 23, 32

•• Commonwealth v. Bowen,
13 Mass. 356 ( 1816) • • . • . . . • . . • • . • • . . . . . . . . . . . . . . . 18

•• Commonwealth v. Carter,
474 Mass. 624 (2016) .••••.•.••.•••.•.••.•••.• passim

•• Commonwealth v. Dennis,

••
105 Mass. 162 (1870) • . • . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Commonwealth v. Gentile

•• 2 55 Mass • 116 ( 19 2 6 ) • • . • • . . • • . • . • • • . . . • • . . • • • • . • • 1 7

••
Commonwealth v. Hendricks,
4 52 Mass . 97 ( 2008 ) • . • • . • • • . • • . • . . • • . • . . • • . • • . • . . 20

•• Commonwealth v. Jones,
471 Mass. 138 ( 2015) •••.••••••••..•.••••..••••.••• 8

•• Commonwealth v. Knox,
2018 WL 3977159

•• (Pa. Aug. 21, 2018) . . . . . • . . • . . . . . . . . • • . . . . . . . . . . . 35

•• Commonwealth v. Levesque,
4 3 6 Mass • 4 4 3 ( 2 0 0 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . 2 1 , 22

•• iii


••
••
Commonwealth v. Life Care Cntrs. of Am., Inc.,
456 Mass. 826 (2010) . . . . • . • • . • • . . • • • . • . • • . . . . . . . • 14
••
Commonwealth v. Lucas,
472 Mass. 387 (2015) ••••.••.••••..•.•.•.....•.•.•• 3 ••
Commonwealth v. Mink,
••
••
14 3 Mass • 4 2 2 ( 18 7 7 ) • . • . • • . • • . • • . • . . . • • . • • . • . • • • • 18

Commonwealth v. Miranda,
474 Mass. 1008 (2016) 13' 15
••
••
Commonwealth v. Moran,
453 Mass. 880 ( 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Commonwealth v. Persampieri,
3 4 3 Mass • 19 ( 19 61 ) . • • . • . • • . • • • . . . . . . . . . • . • . • . • . • 1 7
••
Commonwealth v. Roucoulet,
413 Mass. 647 N.E.2d 470 (1992) . . . . . . . . . . • . • • . • . . 10 ••
Commonwealth v. Welch,
4 4 4 Mass • 8 o ( 2 oo5 )
••
••
• . • • • • • • • . • • • . • . . . . . . . . • . • 17 , 37

Commonwealth v. Williamson,
462 Mass. 676 ( 2012) •••••••.•.••.•......••••.•.•• 10
••
••
Cox v. Louisiana,
379 u.s. 536 (1965) .•••••••••..•...•..•..•.•••••. 10

Goodridge v. Dep't of Pub. Health,


440 Mass. 309 ( 2003) ••••••••.•........•.•••••.•.. 26 ••
Holder v. Humanitarian Law Project,
561 u.s. 1 (2010) ••••.•.••.••....•.•. 10, 11, 20, 23 ••
In re Ryan N. , ••
112 Cal. Rptr.2d 620 (Ct. App.

Jones v. State,
2001) •...•.•.••••• 19

••
220 Ind. 384 (1942) .••••••.•••••.......••.••••••. 22
••
••
Kevorkian v. Thompson,
947 F. Supp. 1152 (E.D. Mich. 1997) •.•.•••...•.•• 12

iv
••

••
••
•• King v. Driscoll,
4 2 4 Mass • 1 ( 19 9 6 ) • . . . . . . • • . • • . • • • • . • . . • • • . • . . . . . . 9

•• Kolender v. Lawson,
461 u.s. 352 (1983) ••.••...••.••.....••.•••.••.•• 10

•• Locator Svcs. Group, Ltd. v. Treasurer and Receiver

••
Gn'l, 443 Mass. 837 (2005) . . . . . . . . . . • • . • . . • • . • • . • 15

Matal v. Tam,

•• 137 S. Ct. 1744 (2017) •••.•........••••..••.••.•• 27

••
McCollum v. CBS, Inc.,
249 Cal.Rptr. 187 (Ct. App. 1988) ....••.•••.••••. 34

•• Melnychenko v. 84 Lumber Co.,


424 Mass. 285 (1997) . . . . . . . . • . • . . . • . . • . • . • . • . . . . . 15

•• Mendoza v. Licensing Bd. of Fall River,


444 Mass. 188 (2005) . • . • • . . • • . • • . . . . . . . . • . . • • 17, 29

•• Morissette v. United States,


u.s.
••
342 246 (1952) . . • . . . . . . . . • • . . • • . • • • • • • • . . . . . 35

NAACP v. Button,

•• 371 u.s. 415 (1963) .••.••..••.••........••.•.••.• 25

NAACP v. Claiborne Hardware Co.,

•• 458 u.s. 886 (1982) . . . . . • . . • • . • • • • • • • • . • . • . . . . . . . 37

•• Northern Securities Co. v. United States,


193 u.s. 197 (1904) . . . . . . . • • . • • . • • . . • • • • . . • • . . . . . . 1

•• O'Brien v. Borowski,
461 Mass. 415 (2012) 17' 35

•• Onofrio v. Dept. of Mental Health,

••
408 Mass. 605 (1990) •.•••••............•••••.•••• 21

Opinion of the Justicesto the Senate,

•• 396 Mass. 1211 (1985) ..••••.••••••••••.••••••.... 30

••
Papachristou v. City of Jacksonville,
405 u.s. 156 (1972) •••.••.••.••.•••••.•.••••..... 23

•• v


••
••
Planned Parenthood League of Mass., Inc. v. Operation
Rescue, 406 Mass. 701 (1990) •••..••••.•••.•.•.•.. 17 ••
Pleasant Grove City,
555 u.s. 460 (2009) ••.•.••.••••..••••.•••.••••••• 28 ••
R.A.V. v. St. Paul,
u.s.
••
••
505 377 (1991) 27, 28, 29

Reed v. Town of Gilbert,


576 U.S. _ _ ,

Rogers v. Tennessee,
135 S.Ct. 2218 (2015) .•••••..•••.•. 27
••
532 u.s. 451 (2001) 12, 13, 15
••
Rogers v. United States,
422 u.s. 35 (1975) . . • . . . . . . • . . . . . • . • . . . . . • . • • . • . . 36
••
Skilling v. United States,
561 u.s. 358 (2010) •...•...•....•••.••.•••.•.•••. 10 ••
Snyder v. Phelps,
u.s.
••
••
562 443 (2011) •••.•..••••.••.••••.••.••.••.. 28

State ex rel. Kuntz v. Montana Thirteenth Judicial


Dist. Court,
298 Mont. 146 (2000) .•...••.•..•.•.•.••.••.••.•.. 22 ••
State v. Final Exit Network,
2013 WL 5418170, 42 Media L. Rep. 2549
Inc.,
••
(Minn. Ct . App. 2 013 ) . . . . . . . . . . . . . . . . . . . • • . • . • • . • 19
••
State v. Final Exit Network,
889 N.W.2d 296 (Minn. Ct. App.
Inc.,
2016) . . . . . . . . . . . . . 19
••
State v. Melchert-Dinkel,
844 N.W.2d 13 (Minn. 2014) •.••••.••••.•.. 18, 19, 26 ••
State v. Palendrano,
120 N.J. Super 336, 293 A.2d 747 (1972) .•.••.•••• 12 ••
United States v. Alvarez, ••
567 u.s. 709 (2012) . . . . . . . . . . . . . . • • • . • • • • • . • . • • • . 36

••
vi ••

••
••
•• United States v. Bagdasarian,
652 F.3d 1113 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . 38

•• United States v. Fulmer,


108 F.3d 1490 (1st Cir. 1997) . . . . . . . . . . . . . . . . . . . . 38

•• United States v. Hatatley

••
30 F.3d 1399 (lOth Cir. 1997) . . . . . . . . . . . . . . . . . . . . 22

United States v. Reese,

•• 92 u.s. 214 (1876) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Stevens,

•• 559 u.s. 460 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 30

•• United States v. Twine,


853 F.2d 676 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . 37

•• United States v. Williams,


553 u.s. 285 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 23

•• Virginia v. Black,

•• 538 u.s. 343 (2003) 3' 34

••
STATUTES

18 u.s.c. § 2339B .... .. .. .... ... .. .. .. .. .... ... .. .. 11

•• 18 u.s.c. § 875 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

•• 18 u.s.c. § 876 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

•• G.L. c. 119,

G.L. c. 151B,
§

§
54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1(18) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

•• CONSTITUTIONAL PROVISIONS

•• Article 12, Mass. Declaration of Rights ............. 9

•• Article 16, Mass. Declaration of Rights ........ passim

•• Fifth Amendment, U.S. Constitution . . . . . . . . . . . . . . . . . . 9

•• vii


••
••
First Amendment, U.S. Constitution . . . . . . . . . . . . . passim

Fourteenth Amendment, U.S. Constitution . . . . . . . . . . . . . 9


••
OTHER AUTHORITIES
••
Crane, Paul T., Note, "True Threats" and the Issue of ••
Intent, 92 Va. L. Rev. 1225, 1275 (2006) ......... 37

LaFave, Wayne, 1 Subst. Crim. L. § 2.1(e) (3d ed. ••


2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
••
Restatement (Second) of Torts§ 321 (1965) ......... 21

Schiff, Stacy, The Witches of Salem, THE NEW YORKER ••


(Sept. 7, 2015), at https://www.newyorker.
com/magazine/2015/09/07/the-witches-of-salem ..... 16 ••
••
••
••
••
••
••
••
••
••
••
••
viii
••

••
••
•• Introduction

•• When Justice Holmes wrote that hard cases make bad

law, he could have meant this case. 1 In July 2014, Conrad

•• Roy took his own life after being encouraged to do so

•• by Michelle Carter. Roy was 18, and Carter was 17. This

brief does not purport to paint Carter's encouragement

•• in a positive light. But the criminalization of that

•• encouragement now threatens to create some very bad law,

and with it the risk that people - including Carter -

•• will be improperly convicted and imprisoned .

•• to be
Carter is the first person in Massachusetts ever

convicted of killing someone with words of

•• encouragement alone. She was charged with common law

•• involuntary manslaughter, a crime which,

case, required (1) nwanton or reckless conduct" or (2)


until this

•• a nwanton failure to act." Commonwealth v. Carter, 474

•• Mass. 624, 630-31 (2016) (nCarter I").


Court allowed the prosecution to proceed, based on the
In 2016, this

•• Court's view that there was probable cause suggesting

•• that Carter engaged

coercion" against Roy.


in

Id.
na systematic

at 636. But,
campaign

at her 2017
of

•• trial, Carter was not convicted on that theory .

•• The trial court did not find that Carter coerced,

threatened, or deceived Roy. R. 38-45. Nor did it find

••
•• 1
Northern Securities Co. v. United States,
197, 364 (1904) (Holmes, J., dissenting) .
19 3 U.S .

•• 1


••
••
that Carter supplied Roy with physical or informational
••
assistance. Id.

involuntary manslaughter
Instead, the court convicted Carter of

under both the conduct and ••


failure-to-act theories - because it found that she
••
encouraged Roy to get back into the truck and knew that

he had "followed her instructions." R. 43. Which is to ••


say that Carter was convicted not because there was any
••
"coercion," but because she knew Roy had listened to

her. In fact, the Commonwealth's brief does not even ••


argue that it proved coercion at trial.
••
There

applying
is no

involuntary
precedent, including

manslaughter to
Carter I, for

encouragement ••
alone. If Carter's conviction is allowed to stand, it
••
will violate the due process and free speech protections

in both the federal and state constitutions. ••


Accordingly, as shown below, Carter's conviction should
••
be reversed.
Questions Presented ••
1. Were Carter's due process rights under the
••
state and federal constitutions violated because,

July 2014, the common law doctrine of


in

involuntary ••
manslaughter did not put her on adequate notice that
••
her words encouraging Roy to commit suicide would expose

her to criminal liability? ••


2. Is the crime of involuntary manslaughter by
••
encouragement of suicide an unjustified and
••
2
••

••
••
•• unconstitutional content-based regulation of speech

•• under both the

3.
u.s. and Massachusetts Constitutions?

Is the conviction invalid because it was based

•• on Carter's speech, and the trial court did not find

•• that

death?
the Carter had specific intent to cause Roy's

•• Interests of Amici Curiae

•• The American Civil Liberties Union


nationwide, nonprofit, nonpartisan organization with
(ACLU) is a

•• nearly 2 million members dedicated to the principles of

•• liberty and equality embodied in the Constitution and

this nation's civil rights laws. The American Civil

•• Liberties Union of Massachusetts, Inc. (ACLUM), is a

•• state affiliate of the national ACLU. The ACLU and ACLUM

have appeared before this Court and others in free

•• speech cases, both as direct counsel and as amici

•• curiae. See Virginia v. Black,


Commonwealth v. Lucas, 472 Mass. 387 (2015) .
538 U.S. 343 (2003);

•• Statement of the Case and the Facts

•• Amici. accept the statement of the case and the

•• facts set forth in the briefs of appellant Michelle


Carter. In this brief, amici focus particularly on the

•• following specific history and facts .

•• Roy took his own life in July 2014, by sitting in

a car that he had filled with carbon monoxide pursuant

•• to arrangements he had made on his own. R. 48. Based

••

3
••
••
solely on a text message subsequently sent by Carter to
••
a friend, the indictment charged that at some point

after Roy entered the car as it filled with carbon ••


monoxide, he may have exited the car and then re-entered
••
it after Carter allegedly told him by telephone to get

back in. Carter I, 474 Mass. at 629 n.8. ••


In February 2015, Carter was indicted for
••
involuntary manslaughter as a juvenile offender under

G.L. c. 119, § 54, for the ukilling of Conrad Roy III." ••


R. 29-31. The indictment stated that this killing
••
occurred uby wanton or reckless conduct." R. 29. It did

not allege a wanton or reckless failure to act. Carter's ••


motion to dismiss the indictment was denied, and her
••
appeal of that denial was heard by this Court. Carter

I, 474 Mass. 624. ••


In Carter I, the uprinciple question" was uwhether
••
the evidence [before the grand jury] was sufficient to

warrant the return of an indictment for involuntary ••


manslaughter where the defendant's conduct did not
••
extend beyond words." 474 Mass. at 625. In that opinion,

the Court, consistent with law, viewed the evidence uin ••


the light most favorable to the Commonwealth," id.
••
(citing

(2009),
Commonwealth

as opposed
v.

to
Moran,

the
453

standards
Mass. 880,

governing
885

a ••
sufficiency challenge following a trial. 474 Mass. at
••
625.
••
••

4
••
••
•• In Carter I, the Court said: u[w]e [] never have

•• had occasion to consider such an indictment against a

defendant on the basis of words alone." 474 Mass. at

•• 633. Yet the Court sustained the indictment,

•• emphasizing the theory that

circumstances of the defendant's relationship with the


uthe particular

•• victim may have caused her verbal communications with

•• him in the last minutes of his life on July 12, 2014,

to carry more weight than mere words, overcoming any

•• independent will to live he might have had." Id. at

•• 634. The Court repeatedly stated that the indictment

was supported by probable cause because it might be

•• proven at trial that Carter uoverbore the victim's

•• willpower," ''overwhelmed whatever

eighteen year old had to cope with his depression," and


willpower the

•• usubvert[ed] his willpower." Id. at 635-636 .

•• At the same time, the Court gave at


example of nwhat this case is not about" that did not
least one

•• turn on any such overpowering namely, ua person

•• seeking to ameliorate the anguish of someone coping with

a terminal illness and questioning the value of life."

•• Id. at 636 .

•• The Carter I

speech only in a
Court addressed the issue of free

footnote, which asserted that the

•• uspeech at issue in this case is not protected under

•• the First Amendment to the United States Constitution

or art. 16 of the Massachusetts Declaration of Rights

••

5
••
••
because the Commonwealth has a compelling interest in
••
deterring speech that has a direct, causal link to a

specific victim's suicide." Id. at 636 n.17. The Court ••


did not hold that Carter's speech fell into any of the
••
narrow, precisely defined categories of speech

have been found not to be fully protected by the First


that
••
Amendment or Article 16. Although the Court suggested
••
that Carter's prosecution triggered strict scrutiny,

and concluded that government has a compelling interest ••


in deterring speech with a direct, causal link to a
••
specific suicide, it did not analyze whether the law of

involuntary manslaughter as applied to speech alone is ••


narrowly tailored to advance that interest. Id.
••
After a bench trial, the court below found Carter

guilty of involuntary manslaughter. R. 46. The court ••


found Carter guilty under two theories, even though the
••
indictment covered only the first: (1) that she engaged

in wanton or reckless conduct that caused Roy's death; ••


and (2) that she failed to act to prevent his suicide
••
after creating, through her words, a duty to act. R. 45.

The court found Carter guilty under the first prong ••


solely because she encouraged Roy to get back into his
••
vehicle after he had independently first entered and

then exited his vehicle and thereafter, under his own ••


power, re-entered the vehicle. R. 48.
••
Even after being put on notice by Carter I

such a finding might be necessary to convict, the court


that
••
6
••

••
••
•• below made no finding that the Commonwealth had proven

•• beyond a reasonable doubt that Carter's words from a

remote location "overbore," "overwhelmed" or

•• "subverted" Roy's will. R. 35-48. Nor did the court

•• make any other finding that Carter had coerced Roy and

instead found only that she knew Roy had listened to

•• her advice. R. 43 .

•• This Court
Summary of Argument

should interpret the common law of

•• involuntary manslaughter to avoid the serious

•• constitutional questions raised in this case. Pp. 8-9 .

I. No one in 2014 - not a legal scholar, and

•• certainly not a teenaged girl - could have gleaned from

•• this

unfettered
Court's cases

discretion,
that prosecutors,

may charge
in

involuntary
their

•• manslaughter whenever someone encourages or even

•• strongly encourages suicide through non-threatening and


non-misrepresentative speech. Carter's conviction

•• therefore rests on an impermissibly vague application

•• of the involuntary manslaughter offense, in violation

of due process. Pp. 9-25 .

•• II. Carter's conviction is also incompatible with

•• the constitutional protections for free speech in the

First Amendment of the U.S. Constitution and Article 16

•• of the Massachusetts Declaration of Rights. The

•• Commonwealth does not argue that

encouraging suicide falls into any exception to those


Carter's speech

•• 7


••
••
protections for free speech. And the law is not narrowly
••
tailored

governmental
to achieve

interest.
a legitimate and

Consequently,
compelling

the ••
criminalization of that speech is invalid. Pp. 26-32.
••
III. Finally, Carter's conviction

First Amendment and Article 16 because it is premised


violates the

••
on a finding of wantonness and recklessness rather than
••
specific intent. Even if it were possible to convict

someone of homicide based on words of encouragement, ••


free speech principles would require the indictment to
••
allege, and a factfinder to find, that she specifically

intended her words to cause someone's death. Yet, ••


because Carter was convicted of involuntary
••
manslaughter, the Commonwealth

criminalized reckless speech. Pp. 33-39.


has impermissibly
••
Argument
••
that
This case raises serious constitutional questions

can and should be avoided by an appropriately ••


narrow construction of the common law on involuntary
••
manslaughter.

where possible,
This

laws
Court

should
has repeatedly

be construed
held

to
that,

avoid ••
constitutional questions. Commonwealth v. Jones, 471
••
Mass. 138, 143

manslaughter to reach the


( 2015). Here, stretching involuntary

facts of this case would ••


violate, or at least raise serious questions under, the
••
due process clauses of both the state and federal
••
8 ••

••
••
•• constitutions, as well as the First Amendment and

•• Article 16. 2

•• I • Construing the common law crime of involuntary


manslaughter to prohibit speech encouraging

•• suicide renders it void for vagueness .

A foundational principle of criminal law is that

•• the law at the time of the alleged conduct must have

•• given the defendant fair notice that her conduct was

criminal. A law that does not provide such notice, or

•• that confers too much discretion on prosecutors,

•• violates due process under both the Fifth and Fourteenth

Amendments of the U.S. Constitution and Article 12 of

•• the Declaration of Rights. The common law of involuntary

•• manslaughter in 2014 did not provide fair notice that

speech encouraging suicide - without any coercion and

•• unlinked to conduct - could be 11


Wanton or reckless

•• conduct" sufficient to constitute

manslaughter, or that words alone could trigger a duty


involuntary

••
••
2
The Commonwealth relies heavily on the ''law of the
case" to contend that issues addressed preliminarily in

••
Carter I cannot be revisited here. Com. Br. 15-18. That
reliance is misplaced. For one thing, Carter I dealt
only with the legality of the indictment under a

•• standard very deferential to the Commonwealth. 474


Mass. at 625. For another, as set forth below, some of

•• those preliminary conclusions would be clearly


erroneous if construed to mean what the Commonwealth

••
asserts they mean. See King v. Driscoll, 424 Mass. 1,
8 (1996) (law of the case is inapplicable when prior
decision was clearly erroneous) .

•• 9


••
••
to act. And, because of the vagueness of the law of
••
involuntary manslaughter as applied to speech alone,

the law confers too much discretion on those who might ••


enforce it.
••
A.A law violates due process if it fails to put
potential defendants on fair notice, or if it ••
confers too much discretion on prosecutors.

A criminal law is void for vagueness unless it ••


"define[ s] the criminal offense [ 1] with sufficient
••
definiteness that ordinary people can understand what

conduct is prohibited and [2] in a manner that does not ••


encourage arbitrary and discriminatory enforcement."
••
Kolender

(citations
v. Lawson,

omitted);
461 u.s.
Skilling v.
352, 357-58

United States,
(1983)

561 ••
U.S. 358, 402-403 ( 2010). And a particularly strict
••
test applies when the conviction implicates free speech

or association rights. See generally Cox v. Louisiana, ••


379 U.S. 536 (1965); Alegata v. Commonwealth, 353 Mass.
••
287 (1967). These principles dovetail in this case with

the well-established doctrine that when a criminal law ••


"can 'plausibly be found to be ambiguous,' the rule of
••
lenity applies, and we 'give the defendant the benefit

of the ambiguity."' Commonwealth v. Williamson, 462 ••


Mass. 676, 679 (2012) (quoting Commonwealth v. ••
Roucoulet, 413 Mass. 647, 652 (1992)).

For example, in Holder v. Humanitarian Law Project,


••
561 U.S. 1 (2010), the Court emphasized that: ••
10 ••

••
••
•• 11
[a] conviction fails to comport with due pro-

•• cess if the statute under which it is obtained


fails to provide a person of ordinary intel-
ligence fair notice of what is prohibited, or

•• is so standardless that it authorizes or en-


courages seriously discriminatory enforce-

•• ment." . . . We have said that when a statute


"interferes with the right of free speech or

•• of association, a more stringent vagueness


test should apply."

•• Id. at 18-19 (citations omitted). 3

These principles should apply as strongly, if not

•• more so, when, in the absence of a clear statute, the

•• state attempts to shoehorn a prosecution into the common

law. 4 For example, in 1997-a federal district court held

••
•• 3
The Holder Court rejected a vagueness challenge to a
statute making it a crime to "knowingly provid[e]

•• material support or resources to a foreign terrorist


organization." 18 U.S.C. § 2339B. The Court reasoned

••
that liability under this statute could arise only from
aid provided to organizations designated by the
Secretary of State as being terrorist organizations.

•• And the Court emphasized that the statute specifically


defined "material support or resources," while

•• specifying that advocacy undertaken separately from a


designated terrorist organization is not criminal .

••
Holder, 561 U.S. at 23. Indeed, the Court emphasized
that speech alone could not form the basis of a
conviction but had to be combined with the conduct of

•• coordinating with a known terrorist organization. Id.


at 26 .

•• 4
Massachusetts is one of the few states that has not
enacted a statute stating clearly whether assisting or

••
encouraging suicide is unlawful and, if so, what kind
of conduct qualifies as unlawful assistance or encour-
agement. See, e.g., PRoCoN, https://euthanasia.pro-

•• 11


••
••
that the common law with regard to assisting suicide
••
was unconstitutionally vague before 1994, when a ruling

by the Michigan Supreme Court established that such ••


assistance violated state common law. Kevorkian v.
••
Thompson, 947 F. Supp. 1152, 1178-79 (E.D. Mich. 1997);

see also State v. Palendrano, 293 A.2d 747, 751-752 ••


(1972) (holding that the common law crime of being a
••
"common scold" was void for vagueness because it did

not put a reasonable person on adequate notice, it ••


conferred too much discretion on prosecutors and
••
courts, and it implicated First Amendment rights).

Contrary to the Commonwealth's assertion, see Com. ••


Br. 40-42, a state cannot sidestep these principles by
••
retroactively applying a newly announced expansion of

the common law. Under the u.s. Constitution, "judicial ••


alteration of a common law doctrine violates the
••
principle of fair warning, and hence must not be given

retroactive effect" . . "where it is 'unexpected and ••


indefensible by reference to the law which had been
••
expressed prior to the conduct in issue. '" Rogers v.

Tennessee, 532 U.S. 451, 461 (2001) (quoting Bouie v. ••


City of Columbia, 378 U.S. 347, 354 (1964)); see also
••
LaFave, Wayne, 1 Subst. Crim. L. § 2.1(e), (3d ed. 2017)
••
con.org/view.resource.php?resourceiD=000132 (last vis-
ited Sept. 14, 2018) (36 states have statutes making it ••
••
unlawful to assist suicide; seven have laws allowing
the assistance of suicide in certain circumstances).

12 ••

••
••
•• (
11
a court might decline to declare a particular common

•• law crime as the law of the state because of concerns

with the due process right to fair warning 11 ) . 5

•• In Commonwealth v. Miranda, 474 Mass. 1008 (2016),

•• this Court suggested an even stricter test for whether

retroactively altering Massachusetts common law

•• violates due process. In addition to applying the

•• standard required by Rogers,

retroactive application of a newly announced common law


the Court noted that

•• rule violates due process if the rule, created after

•• the events

liability or
in
11
question, 11
enlarge[d]"

Criminalized any action that was lawful


the scope of

•• when [the defendant] committed it or deprived [the

•• defendant] of any previously available defense." Id. at

1008-1009. That is the situation here .

••
•• 5 Rogers held that a defendant could be convicted of
murdering someone who died roughly 15 months after the

•• defendant stabbed him, notwithstanding prior dicta re-


ferring to a 11 year and a day" rule, under which murder

•• could not be charged where the victim died more than a


year and day after the defendant's actions. The Court

••
reasoned that the 11 year and a day" rule had originated
in private actions against alleged murders, had never
actually been applied in Tennessee, and had been roundly

•• rejected in jurisdictions across the country. 532 u.s.


at 462-466. The Court could also have emphasized that

•• because an assailant does not know how long a victim


will survive, his decision to stab someone, or not,

•• could hardly depend on notice of whether one can avoid


a murder prosecution if his victim takes more than 366
days to die .

•• 13


••
••
B. The conviction violates due process because she
lacked adequate notice that encouraging suicide ••
••
could constitute involuntary manslaughter.

According to the principles above, convicting

Carter of involuntary manslaughter based on verbal


••
encouragement in 2014 is incompatible with due process.

In 2014, the common law crime of involuntary ••


manslaughter had long been interpreted to require "'(1)
••
wanton or reckless conduct;

act.'" Carter I, 474 Mass.


or (2) wanton failure to

at 630-631 (quoting ••
Commonwealth v. Life Care Cntrs. of Am., Inc., 456 Mass.
••
826, 832 (2010)) (emphasis supplied). As this Court has

recognized, Carter's indictment alleged "wanton or ••


reckless conduct," Carter I, 474 Mass. at 631, but not
••
a failure to act. And in 2014, encouragement had never

formed the sole basis of an involuntary manslaughter ••


conviction.
••
1. The common law did not provide not ice
that encouragement could constitute ••
wanton and reckless #conduct."

In 2014, there was no case law establishing that ••


the necessary element of "conduct," as used in the oft-
••
repeated
manslaughter,
common

could
law

be
definition

satisfied
of

by
involuntary

encouragement ••
alone. At a minimum, the common law was ambiguous.
••
The clearest proof of this

Carter I itself. There, this Court acknowledged that it


reality appears in
••
had "never . . . consider[ed] such an indictment against
••
14 ••

••
••
•• a defendant on the basis of words alone." Carter I, 474

•• Mass.

that the
at 633. Of course, in Carter I

involuntary manslaughter indictment against


the Court held

•• Carter could proceed, based on the Court's view that

•• there was probable cause to find that Carter had engaged

in "verbal conduct" that had "overcome" or

•• "overwhelmed" Roy's will. Carter I, 474 Mass. at 625,

•• 633,

"verbal
636. But,

conduct"
so far

had
as

never
amici can tell,

before
the

appeared
term

in

•• Massachusetts case law on the crime of involuntary

•• manslaughter. 6 So, even assuming that the crime has now

been interpreted to prohibit certain "verbal conduct,"

•• that was not the law in 2014. And just as due process

•• would

convict
prohibit

someone
using

for
a

events
statute enacted

occurring in
in

2014,
2016 to

due

•• process prohibits using a groundbreaking case in 2016

•• to convict someone for actions occurring in 2014. See

Miranda, supra; Rogers, supra .

•• This conclusion is reinforced by Carter I's

•• acknowledgement that this Court "need not - and indeed

cannot - define where on the spectrum between speech

•• 6 Rather, that term had been used only in reference to

•• the state's civil sexual harassment statute, G.L. c.


151B, § 1(18), which defines sexual harassment to in-

•• clude "verbal or physical conduct," see Melnychenko v .


84 Lumber Co., 424 Mass. 285, 290 (1997), and in deter-

••
mining the scope of the rules of evidence with regard
to hearsay, see Locator Services Group, Ltd. v. Treas-
urer and Receiver General, 443 Mass. 837, 865 (2005) .

•• 15


••
••
and physical acts involuntary manslaughter must fall."
••
474 Mass. at 634. The Court said "the inquiry must be

made on a case-by-case basis." Id. But that standardless ••


approach is incompatible with due process, because a
••
law is void for vagueness if it does not make clear

what facts are necessary to support a conviction. United ••


States v. Williams, 553 u.s. 285, 306 (2008).
••
Even now, it is unclear whether this Court would

deem the facts found by the trial court - which did not ••
include a finding that Carter "overc[a]me" or
••
"overwhelmed"

finding only
Roy's

that
will

Carter knew Roy


but included

had
a specific

followed her ••
advice - to constitute involuntary manslaughter within
••
the meaning of Carter I.

could not set forth a


7
And if this Court in 2016

rule for determining when ••


encouragement constitutes involuntary manslaughter, how
••
was an untrained teenager supposed to figure it out two
••
7 It is equally unclear what facts would support a ••
finding that a defendant overwhelmed someone' s will.
Certainly, consistent with the First Amendment and
••
••
Article 16, it cannot suffice to show that a young man
committed suicide after a younger woman strongly
encouraged him to do so. To not require much more, such
as the violation of a fiduciary relationship or the
exploitation of a known impairment, would harken back ••
to dark days when young women in Massachusetts were
thought to be capable of controlling others through ••
••
witchcraft. See Stacy Schiff, The Witches of Salem, THE
NEw YoRKER (Sept. 7, 2015), at https: I /www. newyorker.
com/magazine/2015/09/07/the-witches-of-salem.

16 ••

••
••
•• years earlier?

••
Anyone, including a teenager, who researched the

issue in 2014 would have concluded that there is a clear

•• distinction between conduct and speech alone. 8 She would

•• have further concluded that encouragement,

more, could not constitute involuntary manslaughter .


without

•• Commonwealth v. Persampieri, 343 Mass. 19, 22-23

•• (1961), on which the Commonwealth relies, is not to the

contrary. There, a physically-present defendant not

•• only taunted and encouraged his wife to commit suicide,

•• he "told her where the gun was, loaded it for her, saw

that the safety was off, and told her the means by which

•• she could pull the trigger." Id. at 23. On that record,

•• the Court held "that the petitioner's conduct could be

found to be criminally wanton or reckless." Id .

•• (emphasis added) .

••
•• 8 See, e.g., Mendoza v. Licensing Bd. of Fall River,
444 Mass. 188, 200 (2005) (discussing "conduct and not

•• merely speech") (quoting Planned Parenthood League of


Mass., Inc. v. Operation Rescue, 406 Mass. 701, 715

••
(1990) (and cases quoted therein))); Commonwealth v .
Gentile, 255 Mass. 116, 118 (1926) (referring to "de-
fendant's conduct and speech"); cf. Commonwealth v .

•• Welch, 444 Mass. 80, 85-89 (2005) (construing the "am-


biguous" word "conduct" in the criminal harassment

•• statute to encompass speech, but only based on other


statutory language revealing legislative intent to

••
cover "solely constitutionally unprotected
speech"), abrogated in part on other grounds by O'Brien
v. Borowski, 461 Mass. 415, 425 n.7 (2012) .

••• 17
••
••
Commonwealth v. Bowen, 13 Mass. 356 (1816), on
••
which the

unavailing.
trial

Bowen,
court relied,

a prisoner,
R. 41-42, is

had urged Jewett,


equally

the ••
prisoner in the next cell, to kill himself

accused of actually committing the killing by his own


and was

••
hand.

theories
Bowen was indicted for

of both principal and


Jewett's murder,

accessory
under

liability. ••
Although the trial court's jury instructions implied ••
that Bowen could be convicted if the jury found that he

had convinced Jewett to kill himself, Bowen, 13 Mass.


••
at 360, the jury acquitted Bowen, id., and the theory ••
was never tested. Regardless, unlike in this case, Bowen
••
••
was physically proximate to Jewett, and Jewett had no
choice but to listen because he was literally a captive

audience. 9
••
••
Moreover, and unlike in Rogers, fair warning in

2014 could not have arisen from cases outside

Massachusetts. Amici have been unable to find any case


••
permitting someone to be prosecuted for a homicide based

solely on verbal encouragement. This includes State v. ••


Melchert-Dinkel, 844 N.W.2d 13 (Minn. 2014), which was
••
••
cited in Carter I. There, the Minnesota Supreme Court

9 In subsequent cases discussing Bowen in dicta, this


Court implied that the defendant's presence was ••
essential. Commonwealth v. Mink, 143 Mass. 422, 42 7
(1877) ("and in his presence did so"); Commonwealth v.
••
••
Dennis, 105 Mass. 162, 163 (1870) ("if the act be done
in the presence of the person charged").

18
••
••
••
•• held that statutory prohibitions on nadvising" or

•• nencouraging"

they were not


suicide

narrowly
were unconstitutional

tailored, but
because

upheld the

•• prohibition on nassisting" suicide. Id. at 23- 25. The

•• court interpreted nassistance" to entail nprovid[ing]

another person with what is needed for the person to

•• commit suicide." Id. It did not suggest that verbal

•• encouragement, without more,


prosecution. 10
could support a homicide

•• Finally, as a matter of due process it is neither

•• determinative nor

friend that she


relevant

could ngo
that

to
Carter

jail." Com.
later told a

Br. 39 .

•• Although there is language in Carter I assuming a

•• subjective standard may apply, 464 Mass. at 631 n.11,

the Commonwealth cites no other authority that

•• vagueness can be measured by a subjective as opposed to

•• 10
See aLso In re Ryan N., 112 Cal. Rptr. 2d 620, 632-

•• 633 (Ct. App. 2001) (interpreting a state law making it


a crime to aid, advise or encourage suicide as requiring

•• both specific intent to cause the death and some active


and direct participation, such as furnishing the means

•• to commit the suicide); State v. FinaL Exit Network,


Inc., 2013 WL 5418170, 41 MediaL. Rep. 2549 (Minn. Ct .
App. 2013) (unpublished) (striking down a state statute

•• that made it a crime to nadvise" or nencourage" suicide,


on the ground that it was much broader than necessary

•• to ensure that vulnerable people were not coerced or


unduly influenced into suicide). Contrast State v. Fi-

••
naL Exit Network, Inc., 889 N.W.2d 296 (Minn. Ct. App .
2016) (upholding statute criminalizing assisting sui-
cide) .

•• 19


••
••
an objective test. See, e.g., Holder, 561 u.s. at 18-
••
19 (applying "person of ordinary

standard); Commonwealth v. Hendricks, 452 Mass. 97, 102


intelligence"

••
( 2008) (same). The Commonwealth would certainly not
••
concede that a law that is clear to a reasonable person

would be unconstitutionally vague as applied simply ••


because an individual defendant did not understand it.
••
For the same reason, someone who mistakenly asserts

after the fact that she may be subject to prosecution ••


under a vague law cannot thereby forgo her due process
••
rights. And even if a subjective

appropriate, Carter's comment about jail occurred only


standard were
••
after she learned that the police were investigating
••
her, Carter I, 434 Mass. at 631 n.11, and thus does not

establish that she believed her words were unlawful when ••


she uttered them.
••
2. The common law did not provide adequate
notice that encouraging suicide could ••
create an affirmative duty to act.

The same due process concerns apply to the theory ••


unmentioned in the indictment but accepted by the
••
trial judge - that Carter's encouragement

suicide created an affirmative duty to call for help,


of Roy's
••
which she allegedly failed to do. Saying that a ••
defendant has been

required by her speech is


convicted for a failure

just a complicated way of


to act
••
saying that she has been convicted for speech alone. ••
20 ••

••
••
•• Thus, far from supplying an alternative basis to

•• convict,

same due
the

process
failure-to-act

flaws as
theory

the
suffers

theory that
from the

Carter's

•• encouragement amounted to conduct .

•• The failure-to-act theory is also infirm because

the case law on that theory in no way supports its

•• application here. The trial court relied on

•• Commonwealth v. Levesque, 436 Mass. 443 (2002), where

the defendants started a fire in a warehouse by knocking

•• over a candle and then failed to report the fire. In

•• consequence,

firefighters
the

died
fire

while
grew

looking
stronger,

for people
and six

they

•• believed might have been inside. Id. at 445-447. This

•• Court held that the defendants could be prosecuted for

involuntary manslaughter, noting that ua duty to

•• prevent harm to others arises when one creates a

•• dangerous situation, whether that situation was created

intentionally or negligently." Levesque, 436 Mass. at

•• 449. The Court ruled that a duty to take affirmative

•• action can be imposed after one has taken u'action,'"

id. (quoting Onofrio v. Dept. of Mental Health, 408

•• Mass. 605, 610 (1990), or udo[ne] an act," id. (quoting

•• Restatement (Second) of Torts

created an unreasonable risk of harm .


§ 321(1) (1965)), that

•• Neither Levesque nor any case before or prior to

•• Carter

create
I

a
even suggested that words of encouragement can

duty to take affirmative action. To the

•• 21


••
••
contrary, Levesque relied on cases in which the duty to
••
act arose from the defendant's clear criminal conduct.

Levesque, 436 Mass. at 449-450 (citing United States v. ••


Hatatley, 130 F.3d 1399, 1406 (lOth Cir. 1997) (beating
••
up a robbery victim before leaving him in the cold to

die); Jones v. State, 220 Ind. 384, 387 (1942) (sexually ••


assaulting a child and then failing to rescue her when
••
she ran away and fell into a creek); State ex rel. Kuntz

v. Montana Thirteenth Judicial Dist. Court, 298 Mont. ••


146, 154 ( 2000) (stabbing a man and not calling for
••
help)).
Here, Carter undertook no uact" to put Roy at risk. ••
The trial judge found only that Carter encouraged Roy's
••
suicide with words, and the judge made no finding that

Carter supplied necessary information, physically ••


assisted, or engaged in coercion. The common law did
••
not provide any notice, let alone adequate notice, that

encouragement, even strong encouragement, could create ••


a duty to act. 11
••
11 Although the Commonwealth correctly notes that the
••
••
trial court indicated that its on-the-record comments
did not cover all of its reasoning, Com. Br. 24, that
does not mean that the trial court might have found,
but somehow neglected to mention, that Carter coerced
Roy. Even after being put on notice by Carter I that a ••
finding of coercion might be necessary, the trial court
expressly rested its verdict only on a finding that
••
••
Carter ukn[ew]" that he had followed her instruction,
which is something very different than that she coerced
Roy or overcame his willpower. R. 42-43.

22 ••

---------------------------------------..,

••
- · -·-----

••
•• C.Applying the crime of involuntary manslaughter

•• to encouragement also violates due process


because it is so standardless that invites
arbitrary and discriminatory enforcement .

•• The common law of involuntary manslaughter as

•• applied to encouragement

unconstitutionally vague because it invites


of suicide
11
is also

Seriously

•• discriminatory enforcement." Holder, 561 U.S. at 18

•• (quoting United States v. Williams, 553 U.S. 285, 304

(2008)). This Court has emphasized that the vagueness

•• doctrine 11
ensures that no statute have such a

•• 'standardless

enforcement."
sweep'

Commonwealth
as
v.
to allow
A Juvenile,
discriminate
368 Mass .

•• 580, 595 n.15 (1975) .

•• Thus, in Alegata v. Commonwealth, 353 Mass. at 293,

••
the Court struck down, as impermissibly vague, a statute

that criminalized being abroad at night and being

•• suspected of having an unlawful intent. The Court

••
highlighted the absence of objective standards to
separate criminal from non-criminal conduct, which

•• 11
le[ft] the citizen at the 'mercy of the officers' whim

•• or caprice." Id. at 293. Similarly, in Papachristou v .

City of Jacksonville, 405 u.s. 156 (1972), the Supreme

•• Court struck down a vagrancy ordinance that 11


'set a net

•• large enough to catch all possible offenders, and [left]

it to the courts to step inside and say who could be

•• rightfully detained, and who should be set at large.'"

•• 23


••
••
405 u.s. at 165 (quoting United States v. Reese, 92
••
u.s. 214, 221 (1876)).

If this Court holds that encouraging suicide can ••


constitute involuntary manslaughter, Massachusetts
••
residents will be likewise left

unfettered law enforcement judgments about when t;hey


at the mercy of

••
should be prosecuted. Once again, the clearest
••
demonstration of this problem is Carter I itself, which

acknowledged that the Court could not articulate a ••


standard, and that police officers, prosecutors, and
••
juries will have to decide uon a case-by-case basis"

whether someone's verbal encouragement reflects loving ••


grace or criminal homicide. Carter I, 474 Mass. at 634.
••
From a due process standpoint, this is unworkable.
Although the Court in Carter I stated that uthis case ••
is not about" someone who provides usupport, comfort,
••
and even assistance" to someone with a terminal illness,

id. at 636, nothing in this Court's cases provides a ••


doctrinal basis to say that Michelle Carter has
••
committed manslaughter but that others who encourage

suicide have not. If Carter's conviction is allowed to ••


stand, everyone who encourages suicide might have
••
criminal exposure, and whether

prosecution, and imprisonment may depend on subjective


they face arrest,
••
law enforcement judgments about the health of their
••
relationships. This case has already demonstrated that

those judgments will vary. ••


24 ••

••
- - - - - - - - - - - - - - - - - - - - - - - - - - - - --------------

••
•• In Carter I, this Court suggested that Carter

•• uacted to subvertu Roy's will,

but the trial Court made no such finding. R. 38-45. In


474 Mass. at 635-636,

•• addition, the Court in Carter I emphasized that speech

•• that can be criminalized must have a udirect,

link" to the actual suicide. Id. at 63 6 & n. 17.


causal

But

•• even compassionate encouragement to a terminally ill

•• mature adult who then carries through with the act will

have that link .

•• This Court can therefore have no confidence that

•• case-by-case enforcement of a common law prohibition

against encouraging suicide uwill be resolved in favor

•• of adequate protection of First Amendment rights."

•• NAACP

Supreme
v. Button,

Court said
371

in
U.S.

rejecting
415, 438 (1963). As

government promises
the

•• that it would narrowly apply a broad statute prohibiting

•• depictions of cruelty to animals, uthe First Amendment

protects against the Government; it does not leave us

•• at the mercy of noblesse oblige. We would not uphold an

•• unconstitutional statute merely because the Government

promised to use it responsibly." United States v.

•• Stevens, 559 u.s. 460, 480 (2010) .

•• Prosecutions premised on mere encouragement cannot

be justified by a supposition that only people who truly

•• deserve it will end up in prison. Carter's conviction

•• does not comport with basic principles of due process

and should therefore be reversed .

•• 25


••
••
II. Application of the common law crime of involuntary
••
••
manslaughter to encouragement alone violates the
First Amendment to the United States Constitution
and Article 16 of the Declaration of Rights.

The First Amendment and Article 16 protect free


••
speech, with the First Amendment setting the floor to

the protections of Article 16. This is because "[t]he ••


Massachusetts Constitution protects matters of personal
••
liberty against government incursion as zealously, and

often more so, than does the Federal Constitution[.]" ••


Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 328
••
(2003); see, e.g., Mendoza, 444 Mass. at 196. In this

case, neither the trial court nor the Commonwealth have ••


contended that speech encouraging suicide fits a
••
recognized exception to constitutional protections for

free speech. R. 38-45; Com. Br. 44-46. Instead, the


••
trial court held, and the Commonwealth now argues, that ••
such encouragement can be prohibited whenever there is
••
••
a causal connection between encouragement and a

suicide. Id. That is not so.

A. The prosecution of speech encouraging suicide


is a content-based regulation of speech.
••
The prosecution at issue in this case is a ••
regulation of speech based on its content and therefore
••
••
is subject to strict scrutiny. To begin, although speech

encouraging suicide can be "distasteful," it is

nonetheless constitutionally protected. Melchert-


••
26 ••

••
••
•• Dinkel, 844 N.W.2d at 24. "Most of what we say to one

•• another

educational,
lacks 'religious,

journalistic,
political,

historical, or
scientific,

artistic

•• value' (let alone serious value), but it is still

•• sheltered

u.s. at 479 .
from government regulation." Stevens, 559

•• Because the prohibition at issue here criminalizes

•• speech encouraging suicide, and because Carter I

to draw distinctions between those encouraging suicide


seems

•• for reasons that are deemed compassionate and those that

•• are not and between those who encourage

people "coping with a terminal illness" and those who


suicide by

•• encourage suicides for other reasons, 474 Mass. at 636,

•• it is both content and indeed viewpoint based.

First Amendment generally prevents government


"The

from

•• proscribing speech, or even expressive conduct, because

•• of disapproval of the ideas expressed.

regulations are presumptively invalid." R.A.V.


Content-based

v. St .

•• Paul, 505 u.s. 377, 382 (1992) (internal citations

•• omitted); see also Mendoza, 444 Mass. at 197 n.12. And

viewpoint-based restrictions are even more problematic .

•• "A law found to discriminate based on viewpoint is an

•• 'egregious form of content discrimination . . . '" Matal

v. Tam, 137 s. Ct. 1744, 1766 (2017) (quoting Reed v .

•• Town of Gilbert, 135 S. Ct. 2218, 2230 (2015)) .

•• Accordingly, the restriction at issue here must at the

•• 27


••
••
very least be subjected to the strictest of scrutiny.
••
••
Pleasant Grove City, 555 u.s. 460, 469 (2009).

Although the Commonwealth argues that the

criminalization of Carter's speech is acceptable


••
because the trial court found that it satisfied the

causation element of involuntary manslaughter, Com. Br. ••


44-46, that is not how constitutional analysis works.
••
Even when

effects,
protected

the
speech

constitution trumps
has clear

laws
and

purporting
harmful

to ••
prevent or deter it, not the other way around. See,
••
e.g., Stevens,

U.S. 443, 458


559

(2011);
u.s. at 479; Snyder v. Phelps, 562

Brandenburg v. Ohio, 395 U.S. ••


444, 448 (1969). 12
••
Indeed, even when the state regulates speech that

is excepted from the First Amendment or Article 16, it ••


cannot combine that regulation with impermissible
••
content- and viewpoint-based restrictions. In R.A.V. v.

St. Paul, 505 u.s. 377 (1992), the Supreme Court struck ••
down a hate crimes ordinance that prohibited the display
••
of a symbol that amounted to fighting words and which

incited violence based on race, religion or gender. Id. ••


at 380-381. Although fighting words can be prohibited
••
outright,
ordinance
the

violated
Court

the
nevertheless

First
held

Amendment
that

because
the

a ••
••
••
12As discussed in B. below, requiring a direct, causal
connection does not provide sufficient narrow tailor-
ing.

28 ••

••
••
•• municipality's power to ban speech "on the basis of one

•• content element (e.g., obscenity) does not entail the

power to proscribe it on the basis of other content

•• elements." Id. at 386. By banning only certain fighting

•• words, on the basis of a separate form of content-based

discrimination, the ordinance unconstitutionally

•• "impose[d] special prohibitions on those speakers who

•• express views on disfavored subjects." Id. at 391 .

Here, too, the Commonwealth's authority to

•• prohibit manslaughter does not mean that it can avoid

•• strict

involuntary
scrutiny when it

manslaughter
overlays

with
the

a
definition of

content-based

•• restriction on speech .

•• B. This prosecution based only on speech


encouraging suicide is invalid because the law

•• being applied cannot survive strict scrutiny .

To survive strict scrutiny, the government must

•• "demonstrate that the restriction is necessary to serve

•• a compelling state interest and that it is narrowly

drawn to achieve that end." Mendoza, 444 Mass. at 197

•• n.12. 13

•• 13 In Carter I, this Court stated that Carter's speech

•• to Roy was "not protected" because the Commonwealth had


"a compelling interest in deterring speech that has a

•• direct, causal link to a specific victim's suicide."


Carter I, 474 Mass at 636 n.17. To the extent that this

••
statement suggests that such a restriction is
acceptable so long as it is supported by a compelling
interest, and without regard to narrow tailoring, it is

•• 29


••
••
Here, the Commonwealth asserts a compelling
••
••
interest in deterring speech that has a direct,

causal connection to a specific suicide. Com. Br. 44

(citing Carter I, 434 Mass. at 636 n.17). It is not


••
at all clear that deterring a category of speech -

as opposed to some underlying conduct can ever ••


qualify as a compelling state interest. Cf. Opinion
••
of the Justicesto the Senate,

1216 (1985) (application of


396 Mass. 1211, 1215-

criminal law to a ••
category of speech in "all circumstances" is not
••
justified by a sufficient compelling interest).

Of course, Carter I strongly implied that the ••


state's interest actually extends only to such speech
••
with

somehow
a direct,

overpowered
causal

the
link

other
if the defendant

person's will,
has

4 74 ••
Mass. at 635-636. Hence, the Court indicated that in
••
fact the state's interest extends only to deterring

some encouragement that has a direct causal ••


connection to some suicides.
••
••
clearly erroneous. Indeed, the Supreme Court has called
such reasoning "startling and dangerous." Stevens, 559 ••
u.s. at 470. In that case, the Court emphasized that
"free speech does not extend only to categories of ••
speech that survive an ad hoc balancing of relative
social costs and benefits," and expressly disavowed any
••
••
implication from prior cases that may have suggested a
compelling interest on its own is enough to restrict
free speech. Id. at 470-72.

30 ••

••
••
•• Yet, if Carter's conviction is upheld, all sorts

•• of speech encouraging suicide apparently could be

prosecuted, including situations that this Court

•• suggested could not properly be prosecuted. In Carter

•• I, this Court asserted that this case:

is not about a person seeking to ameliorate the

•• anguish of someone coping with a terminal ill-


ness and questioning the value of life. Nor is

•• it about a person offering support, comfort, and


even assistance to a mature adult who, con-

•• fronted with such circumstances, has decided to


end his or her life .

•• Carter I, 474 Mass. at 636 .

These are examples of speech encouraging suicide

•• that may have a direct, causal link to someone' s

•• death under the theory of Carter's conviction.

fact, speech may be more likely to lead to an actual


In

•• suicide when it occurs in such circumstances and in

•• the context of a discussion of options with a caring

••
loved one. And because the Commonwealth did not prove

and the trial court did not find coercion, if

•• Carter's conviction is upheld,


for the broad
her case will stand

••
proposition that any speech
successfully encouraging suicide is potentially

•• criminal, if and when the Commonwealth deems the

••
speech or the speaker particularly offensive. People

will be afraid to have important conversations with

•• loved ones struggling with decisions about whether,

•• 31


••
••
when and how to end their lives; share advice with
••
••
sympathetic strangers over the Internet; or advocate

controversial political opinions.

It cannot be maintained that the Commonwealth


••
has a

speech.
compelling interest in suppressing all such

The potential application of involuntary ••


manslaughter to all speech encouraging suicide and
••
having a direct, causal link to a suicide therefore
fails strict scrutiny because it is over-inclusive. ••
Cf. Commonwealth v. A Juvenile, 368 Mass. 580, 587
••
(1975) ("[T]he offense of being a disorderly person

in so far as it encompasses speech or expressive ••


conduct is not sufficiently narrowly and precisely
••
drawn to ensure that it reach only that speech which

the State has a justifiable and compelling interest ••


in regulating, and is therefore overbroad.").
••
For all these reasons, the Massachusetts common

law of involuntary manslaughter by encouragement is a ••


content-based restriction that does not satisfy strict
••
scrutiny.
••
••
••
••
••
32 ••

••
••
•• III. A conviction for causing someone's death through
words alone is unconstitutional without a finding

••
of specific intent .

Carter stands convicted of involuntarily

•• committing manslaughter with her words. This offense

•• does not require, and the judge did not find, a specific

intent to cause Roy's death. Carter I, 474 Mass. at

•• 630-631; R. 38-45. But even if it were permissible to

•• imprison

encouragement,
someone for causing a suicide

a finding of specific intent would be


through

•• required by the First Amendment and Article 16 .

•• A. Specific intent is an essential element of a


crime consisting of speech alone .

•• Although the Commonwealth has not argued that

•• speech encouraging suicide falls within any recognized

exception to free speech doctrine, the case law on those

•• exceptions sheds light on the level of mens rea that

•• must be alleged and proved when the

criminalize speech. That case law is clear:


state seeks

specific
to

•• intent is required .

•• For example,

imposed a subjective
the U.S.

intent
Supreme Court has clearly

requirement on criminal

•• liability for incitement. In Brandenburg v. Ohio, the

•• Court held that uthe constitutional guarantees of free

speech and free press do not permit a State to forbid

•• or proscribe advocacy of the use of force or of law

•• violation [i.e., incitement] except where such advocacy

is directed to inciting or producing imminent lawless

•• 33


••
••
action and is likely to incite or produce such action, 11

••
••
and stated that any statute failing to recognize these
requirements 11
sweeps within its condemnation speech

which our Constitution has immunized from governmental


••
control."
(emphasis
395 U.S.
added). Thus,
444, 447-448
to convict
(1969)
Carter
(per curiam)
for her ••
alleged speech encouraging Roy's death, 11
it must have
••
been a specifically intended consequence." McCollum v.

CBS, Inc., 249 Cal. Rptr. 187, 193 (Ct. App. 1988) ••
(holding that John 11
0zzy" Osbourne could not be found
••
liable for the suicide of a listener without a showing

that the artist specifically intended to cause the ••


listener's death). See also Bible Believers v. Wayne
••
Cty., Mich., 805 F.3d
(recognizing need for specific intent).
228, 246 (6th Cir. 2015)
••
The 11
true threats" doctrine similarly requires
••
subjective intent when the crime consists of

alone. 11
Intimidation in the constitutionally
speech
••
prescribable sense of the word is a type of true
••
threat," the Court wrote in Virginia v. Black,

a speaker directs a threat to a person or group of


11
Where
••
persons with the intent of placing the victim in fear
••
of bodily harm or death."
added).
538 U.S.

The Court accordingly held that the Virginia


at 360 (emphasis
••
cross-burning statute at issue 11
does not run afoul of
••
the First Amendment insofar as it bans cross burning

with intent to intimidate." Id. at 362. ••


34 ••

••
------------------------------------------------------------------------------------------------~

••
•• In O'Brien v. Borowski, 461 Mass. at 426, this

•• Court expressly articulated the urequirement that the

speaker subjectively intend to communicate a threat" as

•• part of the utrue threats" doctrine. See Commonwealth

•• v. Knox, 2018 WL 3977159, at *13 (Pa. Aug.

(Wecht, J., concurring in part and dissenting in part)


21, 2018)

•• (u[T]he reasoning underlying the Supreme Court's Black

•• decision necessitates the conclusion .

of the speaker's intent to intimidate the recipient of


. that proof

•• the communicate is a required inquiry . .") .

•• speech
Therefore,

alone,
where criminal liability is based on

proof of specific intent is

•• constitutionally required .

•• B. Requiring specific intent for a crime consisting


solely of speech comports with longstanding

•• criminal law and free speech principles .

Requiring specific intent for crimes based on

•• speech alone is consistent with longstanding criminal

•• and free speech principles. ucrime,

concept, generally constituted only from concurrence of


as a compound

•• an evil-meaning mind with an evildoing hand, was

•• congenial to an intense individualism and took deep and

early root in American soil." Morissette v. United

•• States, 342 U.S. 246, 251-252 (1952) .

•• intent
This general presumption in favor of a subjective

requirement is heightened for three reasons

•• here. First, the criminal prosecution at issue here is

•• 35


••
••
based on speech,
u.s.
not conduct. See Rogers v. United
••
•.•
States, 422 35, 47 (1975) (Marshall, J. '

concurring) (stating that the Court "should be


,
particularly wary of adopting a [negligence]
standard for a statute that regulates pure speech,"
••
because a purely "objective construction"
threats "would create a substantial risk that crude,
of true
••
but constitutionally protected, speech might be
••
criminalized" or chilled). While
reckless or negligent manslaughter may be permissible
convictions for
••
when the defendant is charged for conduct, allowing
••
conviction when a defendant is charged for speech alone
••
••
contravenes this country's constitutional tradition of
allowing breathing room for the free exchange of ideas.
See United States v. Alvarez, 567 u.s. 709, 716 (2012)
••
••
(Breyer, J., concurring in the judgment) ("[T]he Court
emphasizes mens rea requirements that provide

'breathing room' for more valuable speech by reducing


••
••
an honest speaker's fear that he may accidentally incur

liability for speaking.").


Second, omitting a subjective intent requirement
••
••
chills most heavily those who express controversial
ideas, such as the advocacy of euthanasia. "Strong and
effective extemporaneous rhetoric cannot be nicely
••
••
channeled in purely dulcet phrases. An advocate must be
free to stimulate his audience with spontaneous and

emotional appeals for unity and action in a common


••
36
••
••
••
•• cause." NAACP v. Claiborne Hardware Co., 458 U.S. 886,

•• 928 (1982). See also Commonwealth v. Welch,

at 97, (identifying the presence of a


444 Mass .

u'willful,'

•• 'malicious, ' or specific intent element" as a common

•• factor in deeming constitutionally permissible statutes

that proscribe harassing speech or conduct) .

•• Finally, the subjective intent requirement affords

•• the defendant an opportunity to explain her choice of


words. See Paul T. Crane, Note, uTrue Threats" and the

•• Issue of Intent, 92 Va. L. Rev. 1225, 1275 (2006)

•• (stating, in the true threats

subjective intent requirement permits the speaker to


context, that the

•• provide u an explanation that may shed light on the

•• question of whether this communication was articulating

an idea or expressing a threat"). In some cases, for

•• example, the defendant might be able to argue that she

•• lacked the requisite mental capacity to subjectively

intend the proscribed result. See United States v.

•• Twine, 853 F.2d 676, 679 (9th Cir. 1988) (conditioning

•• the viability of the defendant's diminished capacity

defense on the court's conclusion that 18 U.S.C. §§ 875

•• and 876 are specific intent statutes) .

•• c. A specific intent requirement is particularly


important in the era of online speech .

•• While Carter's speech occurred via a cell phone

•• conversation, it is not difficult

utterance on Twitter, Facebook, or other social media


to imagine its

•• 37


••
••
forums, where messages are often abbreviated,
••
idiosyncratic,

such, this
decontextualized,

speech is susceptible
and ambiguous.

to multiple
As

••
interpretations, making a specific intent requirement
••
especially important. A single Tweet or Facebook post,

stripped from its context, may convey an entirely ••


different message from one situated "in the context of
••
all of the relevant facts and circumstances." See United

States v. Bagdasarian, 652 F.3d 1113, 1123 (9th Cir. ••


2011) (reversing a threat conviction for an individual
••
who posted two online message board postings allegedly

conveying threats to assassinate the President, due to ••


a lack of subjective intent to threaten); cf. United
••
States v. Fulmer,

(defendant argued
108 F.3d 1486, 1490 (1st Cir. 1997)

that his allegedly threatening ••


statement to an FBI agent - "[t]he silver bullets are
••
coming"- was code for evidence of wrongdoing).

Although a recklessness standard generally ••


requires the government to demonstrate that the
••
defendant knew the risks attendant on their actions,

this is insufficient protection in the context of online ••


speech. Speakers who address very large audiences, as
••
is frequently the case on Twitter and Facebook, may be

subjectively aware that some people who read their posts ••


could misinterpret their meaning or take actions that
••
they do not mean to provoke. Inflammatory posts to large

audiences on controversial subjects - in other words, ••


38 ••

••
••
•• speech on matters of public concern - are especially

•• likely to be misconstrued. But that risk does not mean

that criminal liability may constitutionally be imposed

•• on speakers who lack specific intent .

•• A specific intent standard prevents overreach, and

chill, by requiring the government to demonstrate that

•• the speaker intended their words to cause the proscribed

•• result. Yet, in this case, Carter was convicted of an

involuntary speech crime. This conviction is therefore

•• incompatible with the First Amendment and Article 16 .

•• Conclusion

Amici respectfully submit that Michelle Carter's

•• conviction should be reversed on the grounds that the

•• common law of involuntary manslaughter did not provide

her sufficient notice that her speech and subsequent

•• alleged failure to act would be criminal, and that the

•• Massachusetts common law of involuntary manslaughter by

speech alone, at least as thus far articulated, is

•• inconsistent with the free speech protections of both

•• the First Amendment and Article 16 .

••
••
••
••
•• 39


••
••
••
Respectfully submitted, ••
••
Brian Hauss*
AMERICAN CIVIL LIBERTIES
Matthew R. Segal
BBO #654489
••
Ruth A. Bourquin

••
UNION
125 Broad Street BBO #552985
New York, NY 10004 AMERICAN CIVIL LIBERTIES UNION
(212) 549-2500
bhauss@aclu.org
FOUNDATION OF MASSACHUSETTS, INC.
211 Congress Street ••
*Pro Hac Vice Motion
Boston, MA 02110
(617) 482-3170 ••
Pending msegal@aclum.org
••
Counsel for Amici Curiae ••
••
••
••
••
••
••
••
••
••
••

39
••
••
•• Mass. R. A. P. 16(k) Certification

•• I, Ruth a. Bourquin, hereby certify that the foregoing

brief complies with the rules of court that apply to

•• the filing of appellate briefs, including Rules 16 and

•• 20 •

••
•• Ruth A. Bourquin, BBO #552985

••
••
••
••
••
••
••
••
••
••
••
••
••• 40