Freedom of Speech No Defense for Urging A Particular Person to Commit Suicide

The Minneapolis Star-Tribune reports:

A former nurse from Faribault, Minn., was convicted of two felonies Tuesday when a judge ruled he had used “repeated and relentless” tactics during Internet chats that coaxed two people to kill themselves.

Rice County District Judge Thomas Neuville found that William Melchert-Dinkel, 48, “imminently incited” the suicides of Mark Drybrough of Coventry, England, and Nadia Kajouji of Ottawa, Ontario. Drybrough, 32, hanged himself in 2005, and Kajouji, 18, jumped into a frozen river in 2008.

In a 42-page ruling that found Melchert-Dinkel guilty of two counts of felony advising and encouraging suicide, Neuville wrote that it was particularly disturbing that Melchert-Dinkel, posing as a young, suicidal, female nurse, tried to persuade the victims to hang themselves while he watched via webcam….

Neuville, in rejecting the free-speech defense, noted that inciting people to commit suicide is considered “Lethal Advocacy,” which isn’t protected by the First Amendment because it goes against the government’s compelling interest in protecting the lives of vulnerable citizens.

I haven’t yet gotten the full ruling, but I quote below the analysis from a Nov. 8 order by the judge, which also rejected Melchert-Dinkel’s free speech claim. I don’t agree with all the analysis (for instance, the O’Brien analysis strikes me as incorrect), but the bottom line seems right, under the Court’s decision in United States v. Williams (2008). Williams confirmed what most people assumed — that solicitation of a specific crime involving a specific victim or a specific item, as opposed to advocacy of crime generally, is unprotected by the First Amendment. There is essentially an exception to the First Amendment for solicitation. And while suicide is no longer a crime as such, it is many respects very similar, especially with respect to solicitation of the offense.

The solicitation exception doubtless has some fuzzy edges (especially given the Court’s conclusion in Hess v. Indiana (1974) that the statement “we’ll take this street later,” in the middle of an apparently illegally street-blocking demonstration, should be treated as “at worst, … nothing more than advocacy of illegal action at some indefinite future time” and thus protected, rather than as a form of unprotected solicitation of a specific crime). But given that solicitation of the murder — and even of lesser crimes involving personal injury — of a specific person is doubtless unprotected, solicitation of suicide said to a specific person, with the intention of helping bringing about the suicide, would be, too.

Note again that this rationale does not apply to general praise of suicide, or even information on how to commit suicide (see my Crime-Facilitating Speech article) said in the abstract to the world at large. (Some of the judge’s arguments — for instance, related to compelling government interests — might apply to such speech, but I don’t think that those arguments would be accepted by higher courts, since even general advocacy of crime is constitutionally protected.) Nor does this necessarily apply to angry remarks such as “you should just kill yourself”; solicitation generally requires a purpose of bringing about the crime, which would usually be absent in such remarks. But urging someone to kill himself is likely to be just as constitutionally unprotected as urging him to kill someone else, or to rob or rape someone else.

In any case, here’s the heart of the First Amendment discussion from the court’s earlier order:

Despite the expansive protection of speech by the Constitutions of Minnesota and the United States, the United States Supreme Court has held, “[i]t rarely has been suggested that the constitutional freedom of speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.” Giboney v. Empire Storage & Ice, Co., 336 U.S. 490,498 (1949). “[A] State may punish publications advocating and encouraging a breach of criminal laws.” Gitlow v. New York, 268 U.S. 652, 667 (1925).

Speech that constitutes aiding and abetting criminal conduct is not entitled to First Amendment Protection. U.S. v. Moss, 604 F.2d 569, 571 (8th Cir. 1979) cert. denied Feb. 19, 1980 (U.S.). In Moss, the petitioner was convicted in district court for aiding and abetting tax evasion. Id. at 570. Petitioner gave speeches challenging the constitutionality of the federal income tax and described ways to avoid tax liability. Id. Petitioner met with co-defendants, explained to them how to avoid paying income taxes and informed them he would represent them if they ran afoul with the law. Id. The co-defendants, motivated by Petitioner’s information, filed false W-4’s with the IRS. Id. The appellate court found that Petitioner’s speech was not protected by the First Amendment. The court cited the Supreme Court’s decision in Brandenburg v. Ohio, 395 U.S. 444 (1965), distinguishing “speech which merely advocates law violation and speech which incites imminent lawless activity,” the latter not protected by the First Amendment. Id. at 571. The court held that petitioner’s actions went “beyond mere advocacy of tax reform. They explained how to avoid withholding and their speeches and explanations incited several individuals to activity that violated federal law and had the potential of substantially hindering the administration of the revenue.” Id.

As argued by Defendant and established by case law, Minn. Stat. § 609.215 is similar to the aiding and abetting statute. Under Moss, speech that constitutes aiding and abetting criminal conduct is not protected under the First Amendment to the United States Constitution. Thus, speech that directly encourages and imminently incites the act of suicide, in violation of Minn. Stat. § 609.215, falls outside the protection of the First Amendment.

Additionally, the United States Supreme Court “has held that when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment Freedoms. U.S. v. O’Brien, 391 U.S. 367, 376 (1968). Government regulation of speech is constitutionally justified “if it furthers an important or substantial governmental interest; if the governmental interest in unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id. at 377.

Furthermore, the United States Supreme Court has held that assisted suicide is not a fundamental liberty interest protected under the Due Process Clause of the Fourteenth Amendment. Washington v. Glucksberg, 521 U.S. 702, 728 (1997). Because there is no constitutional right to assisted suicide, Minn. Stat. § 609.215, must only be rationally related to a legitimate government interest. Id. Minnesota “has an unqualified interest in the preservation of human life.” Id.; see also State v. Brown, 689 N.W.2d 796, 799 (Minn. Ct. App. 2004) rev. denied Dec. 13, 2005 (Minn.). Preventing persons from assisting or encouraging suicide is rationally related to the State’s interest in preserving human life.

It is unquestioned that the state has a compelling interest to protect and preserve life. Prohibiting persons from advising, encouraging, or aiding others to take their own life furthers the State’s interest in protecting and preserving life. The state’s interest in protecting and preserving life is unrelated to suppressing free expression. Minn. Stat. § 609.215 does not prevent people from expressing opinions or discussing suicide. Rather, the statute only criminalizes a narrow and precise type of speech, i.e. speech that intentionally and directly advises, encourages, or aids a specific person to end their own life. The Court finds that the minimal restriction on speech is no greater than is essential to further the state’s interest in protecting and preserving life….

Minn. Stat. § 609.215 does criminalize speech where the speaker intentionally advises, encourages, or aids another to take their own life. Speech that constitutes aiding and abetting the commission of a crime and the suicide of another is not protected speech. Additionally, the limitation on speech by Minn. Stat. § 609.215 is constitutionally permissible because the statue is serves a compelling state interest, the state’s interest is unrelated to suppression of free expression, and its restriction on speech is not greater than is essential to further the state’s interest. O’Brien, 391 U.S. at 337. Therefore, the Court finds that Minn. Stat. § 609.215 does not criminalize protected speech as applied in this case.