Citation

Calvert C. Tul. L. Rev. 2020; 94: 79-97.

Copyright

(Copyright © 2020, Tulane University School of Law)

DOI

unavailable

PMID

unavailable

Abstract

This Article examines the level of First Amendment protection that applies to a defendant-speaker when charged with involuntary manslaughter based on successfully urging a person to commit suicide. The Massachusetts Supreme Judicial Court's February 2019 decision in Commonwealth v. Carter provides a timely analytical springboard. This Article argues that courts should adopt the United States Supreme Court's test for incitement created a half-century ago in Brandenburg v. Ohio before such speech is deemed unprotected by the First Amendment. It contends this standard is appropriate even in involuntary manslaughter cases where intent to cause a specific result is not required under criminal law. This Article concludes that the Brandenburg test, which embraces a specific intent element, strikes a better balance between First Amendment interests and criminal law than does the elastic "integral to criminal conduct" standard from Giboney v. Empire Storage & Ice Co. that the court applied in Commonwealth v. Carter. Ultimately, although Brandenburg might not have saved Michelle Carter from conviction had it been used, it could protect future defendants where demonstrating intent seems less clear-cut.

Language: en