Michelle Carter, the young Massachusetts woman convicted in June of involuntary manslaughter for “instructing” a boyfriend by email to commit suicide, was sentenced Thursday to a minimum of 15 months imprisonment. Her case has been widely discussed because of the shocking content of her emails, the prosecution’s successful argument that words can kill, and its implications for free speech under the First Amendment.
Before trial, Carter’s attorneys tried to get the case dismissed as a misapplication of the law of manslaughter and as violating her free speech rights, but the Supreme Judicial Court of Massachusetts rejected that effort.
Because of its nationwide notoriety together with its consideration of the role of words in the crime of involuntary manslaughter, the case is already a landmark and a precedent. Now, the question is, how far and extensive will the precedent be? What are its implications for what might be called “word crimes,” and, beyond the criminal law, for the contemporary increase in the civil regulation of speech?
Recent Comparisons from Other Cases
Two recent state cases, both in New Jersey, serve as comparisons in criminal law. In New Jersey v. Pomianek (2015), two white employees of a New Jersey township’s public works department played a “prank” on a black employee by locking him in a cage at the department. When he protested, they retorted, “You throw a banana in a cage, and he goes right in.” The black employee considered those words, which were essentially the only issue in the case, racist.
The two employees were indicted and convicted by a jury under a section of New Jersey’s “bias intimidation” statute whereby a defendant may be criminally convicted of harassment if his victim “reasonably believed” that the defendant’s conduct was based on bias, including racial bias. It was alleged in the case that the defendant’s “words were racially motivated.”
The New Jersey Supreme Court ruled that the New Jersey statute caused a due process violation because it focused on the effect the defendant’s words had on the victim. That is, it required the proof of a crime to be based “on the victim’s perception and not the defendant’s intent.” Criminal law requires the perpetrator to have the necessary and complete criminal intent, the mens rea; crimes are not proved by what the victim thought the perpetrator intended. The court ruled that the New Jersey statute violated the Due Process Clause of the Fourteenth Amendment.
In New Jersey v. Dharun Ravi, (2016), the notorious case in which a college roommate was convicted of cyberbullying his college roommate to commit suicide, the New Jersey Supreme Court ruled that the key section of the New Jersey “bias intimidation” statute was an unconstitutional denial of due process under the Fourteenth Amendment, and thus it was not a free speech case.
Defendant Dharun Ravi used his webcam to spy on and broadcast a same-sex encounter between his college roommate and another man at New Jersey’s Rutgers University in northern New Jersey. He used Twitter to invite other students to see the broadcast, and some accepted that invitation. Three days later, Clementi, learning of this, committed suicide by jumping off the George Washington Bridge into the Hudson River. At trial, Ravi was convicted of invasion of privacy, tampering with evidence, and bias intimidation.
The New Jersey Supreme Court held that Pomianek controlled the case and that Ravi was denied due process because his conviction was based on evidence demonstrating victim Clementi’s state of mind, that is, the effect Ravi’s spying had on him, rather than on Ravi’s criminal intent. Clementi killed himself as his own reaction to what Ravi had done. Ravi did not intend that.
Growing Accusations of Word Crimes
Some other comparisons, both civil and criminal, can be made. In 2015, U.S. Attorney General Loretta Lynch committed the Justice Department to “take action” and to prosecute “anti-Muslim rhetoric,” although she later partially modified the wording of that commitment. Last year, New York City enacted an ordinance that provides civil fines up to $250,000 for failure to use a person’s preferred name or pronoun, and last month Canada added “gender identity and expression” to two sections of its criminal code.
Two weeks ago, psychology professor Lisa Feldman Barrett, referring to the current controversies about “microaggressions” and “trigger warnings” at universities, argued in The New York Times that “scientific findings” demonstrate that “hate speech that bullies and torments” is “literally a form of violence.”
A not entirely unrelated event concerns celebrity Kathy Griffin’s video of herself with a replica of the bloody, decapitated head of President Trump. For that, she was investigated by the Secret Service. Was that a threat under the federal law, 18 U.S.C. 871, that makes it a crime to make a “threat to take the life of, to kidnap, or to inflict bodily harm” upon the president? The video contained no audio, but it surely qualified as “symbolic speech” under Supreme Court decisions, including Tinker v. Des Moines (1969), wherein the court ruled that wearing anti-Vietnam-war armbands was “closely akin to pure speech.”
In its pretrial ruling, the Massachusetts Supreme Judicial Court approved of the prosecutor’s “killing words” expansion of the crime of involuntary manslaughter and snubbed Carter’s plea under the First Amendment. Now that she is sentenced, it seems certain that her lawyers will appeal the same two issues to the state high court again and attempt to appeal the First Amendment issue to the U.S. Supreme Court. Both American law and society in general await the results.