I blogged about the case yesterday, but didn’t then have a copy of the trial court’s latest opinion rejecting the free speech defense. (I quoted an earlier order from the trial court on the same topic.) I’ve now read the latest opinion, and its reasoning strikes me as unpersuasive. The court analogizes to the fighting words doctrine, but the premise of the fighting words doctrine is the danger that the listener will attack the speaker, not that the listener will be persuaded by the speaker; that latter concern is the province of the incitement and solicitation doctrines, which have their own special criteria. The court purports to apply the “secondary effects” doctrine, on the theory that the law is concerned about the harm the speech causes, not about the speech as such. But that counts as a primary effect, not a secondary effect. The tendency of speech to persuade people to do bad things, and the harms that flow from such persuasion, is not treated as secondary effects: “[When] the ‘chain of causation’ … necessarily ‘run[s] through the persuasive effect of the expressive component’ of the conduct, [the law] regulates on the basis of the ‘primary’ effect of the speech — i.e., its persuasive (or repellant) force.” R.A.V. v. City of St. Paul (1992).
The court also cites Snyder v. Phelps for the proposition that speech on matters of purely private concern is less constitutionally protected. But it doesn’t at all consider other cases, such as United States v. Stevens (the animal cruelty depiction case) which stress that such speech remains highly protected. And while it mentions the compelling government interest test, that test also doesn’t resolve much here, because we know that under that test public advocacy of suicide remains constitutionally protected (as the court acknowledges), despite the risk that it will cause some people to commit suicide.
But, as I mentioned in my earlier post, the bottom line result is likely correct, because of the recognition in United States v. Williams (2008) of a First Amendment exception for solicitation of a specific crime involving a particular individual, and because solicitation of suicide can be reasonably seen as very close to solicitation of crime, even though suicide itself is for various reasons no longer treated as a crime. So I expect that the conviction would be upheld on appeal, if, as seems likely, the defendant does appeal — though I hope the appellate court will uphold it under the right First Amendment analysis (and thus will avoid setting a precedent that would undermine other First Amendment doctrines).