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209 (2023)

NOTE

BLURRED LINES: HOW THE COURT IN

COMMONWEALTH V. CARTER BLURRED THE
LINE BETWEEN FREEDOM OF SPEECH AND
CRIMINAL LIABILITY
ABSTRACT
In 2016, Michelle Carter was convicted of manslaughter for
encouraging the suicide of her boyfriend, Conrad Roy, through
words alone. The court ruled that even though Carter was not
physically present at the scene, her verbal conduct “overc[a]me
[the victim’s] willpower to live” and therefore caused the suicide.
Commonwealth v. Carter was the first of its kind to invoke this
kind of criminal liability and remains good precedent: the U.S.
Supreme Court denied certiorari in 2020.
This Note suggests that Commonwealth v. Carter blurred the
line between freedom of speech and criminal liability. First, this
Note briefly discusses the legal history of suicide and causation
generally. This Note then argues that the court incorrectly decided
Commonwealth v. Carter. Finally, this Note asserts that the court
created law retroactively, depriving Ms. Carter of her Fifth
Amendment right to due process.

 University of Houston Law Center, J.D. Candidate 2024. The Author dedicates
this Note to Professor Zachary D. Kaufman, who furthered her passion for criminal justice
and inspired her to write on the topic of this Note. The Author would like to give a special
thanks to her husband, Bryce, and her family and friends for their unwavering support and
love.

209
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210 HOUSTON LAW REVIEW [61:1

TABLE OF CONTENTS

I. INTRODUCTION ............................................................... 210

II. BACKGROUND ................................................................. 212

A. The Legal History of Suicide ................................. 212
B. Causation Generally and
Regarding Suicide .................................................. 215

III. ANALYSIS ........................................................................ 220

A. The Court Incorrectly Decided that
Carter Owed Roy a Duty. ....................................... 220
B. The Court’s Holding Blurred the
Line Between Freedom of Speech
and Criminal Liability........................................... 223
C. The Court Deprived Carter
of Her Due Process Rights by
Deciding Law Retroactively. .................................. 228

IV. CONCLUSION .................................................................. 229

I. INTRODUCTION
In Commonwealth v. Carter, a Massachusetts court convicted
Michelle Carter of manslaughter for encouraging the suicide of
Conrad Roy through words alone.1 The court ruled that her verbal
conduct “overc[a]me [the victim’s] willpower to live” and therefore
caused the suicide.2 Carter was sentenced to fifteen months in
prison and the U.S. Supreme Court denied certiorari in 2020.3
Even though this case was the first of its kind, about five years
later, the Commonwealth of Massachusetts charged Inyoung You

1. Commonwealth v. Carter (Carter I), 52 N.E.3d 1054, 1064–65 (Mass. 2016)

(explaining that the verbal conduct at issue was sufficient to warrant the return of an
indictment of involuntary manslaughter).
2. Commonwealth v. Carter (Carter II), 115 N.E.3d 559, 566 (Mass. 2019).
3. Carter v. Massachusetts, 140 S. Ct. 910, 910 (2020); Lauren Sarner, Michelle
Carter, Real ‘Girl from Plainville,’ Spotted for First Time After Jail Release, N.Y. POST (Apr.
7, 2022, 7:35 PM), https://nypost.com/2022/04/07/michelle-carter-real-girl-from-plainville-
spotted-for-first-time-after-jail-release/ [https://perma.cc/84GW-3Y3Z].
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with manslaughter under similar circumstances.4 You pled guilty

and received ten years of probation.5
These holdings have inspired many scholars to consider the
extent to which the Constitution protects the free speech rights of
American citizens. This Note explores these recent tensions
between protected free speech and criminally punishable speech.
Part II begins with the legal history of suicide and causation
generally and specifically regarding suicide. Part III argues that
the court incorrectly decided Commonwealth v. Carter. This
argument proceeds in three parts. First, in deciding the case, the
court incorrectly assumed Carter owed Roy a duty to rescue.
Additionally, the court’s holding blurred the line between freedom
of speech and criminal liability. Finally, the court decided law
retroactively, depriving Carter of her Fifth Amendment right to
due process.
The current U.S. Supreme Court would likely view the
holding of Commonwealth v. Carter as an unconstitutional
restriction of freedom of speech, as it is known for leaving
“constitutional speech rights much stronger than they were
found.”6 Similarly, the Court is critical of laws that permit
government regulation of the content of speech.7 Additionally, the
recent coalition of a “six-justice conservative majority” has had
and will continue to have a significant impact on the Court’s
jurisprudence in a number of areas, especially First Amendment

4. Brief of Petitioner-Appellant at 6, 8–9, Commonwealth v. You, No. SJC-13181

(Mass. Oct. 12, 2020) (“[The victim] looked the defendant, his girlfriend, Inyoung You,
straight in the eye before he followed through on her repeated importuning and jumped to
his death from the top floor of the Renaissance Parking garage in Boston . . . . The
investigation surrounding the victim’s death revealed the defendant had been emotionally,
verbally, and physically abusing the victim for months before his death.”).
5. Christine Chung, Former Boston College Student Gets Suspended Sentence in
Boyfriend’s Suicide, N.Y. TIMES (Dec. 23, 2021, 10:59 PM), https://www.nytimes.c
om/2021/12/23/us/inyoung-you-boston-college-suicide-guilty-plea.html [https://perma.cc/W
A6K-XTPR].
6. See Joel M. Gora, Free Speech Matters: The Roberts Court and the First
Amendment, 25 J.L. & POL’Y 63, 75 (2016) (stating that “[t]aken together, the Roberts
Court’s decisions . . . have left constitutional speech rights much stronger than they were
found”) For example, in Citizens United v. Federal Election Commission, the Court insisted
that protecting political speech is at the heart of the First Amendment’s purpose in
American democracy. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 329
(2010). John Roberts has led the Court as Chief Justice since 2005. Current Members, SUP.
CT. U.S., https://www.supremecourt.gov/about/biographies.aspx [https://perma.cc/G8AH-
P6VF] (last visited July 24, 2023).
7. Gora, supra note 6, at 67.
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212 HOUSTON LAW REVIEW [61:1

rights.8 When the Supreme Court decides to take up a case similar

to Carter to settle this uncertainty and set the record straight,
hopefully the Court will rule in favor of free speech. Due to the
unfortunate prevalence of cyberbullying and suicide,9 the Court
will likely have that chance soon.

II. BACKGROUND

A. The Legal History of Suicide

We do not know when suicide began,10 but the suicides of
lovers Thisbe and Pyramus in Babylonia, Persia, around 2000 B.C.
are the first recorded instances.11 Within the United States and
other Western civilizations, suicide was considered a religious
problem until the early nineteenth century.12 Soon after, the
understanding of suicide as “a medical problem that could be
prevented by treatment” superseded the prior religious notion.13
Today, suicide is considered “a multifaceted complex outcome that
emerges from numerous biopsychosocial factors.”14 Despite
numerous prevention efforts, suicide rates continue to increase,
and it remains a public health concern.15

8. Conservative Victories at the Supreme Court, SENATE RPC (Aug. 4, 2022),

https://www.rpc.senate.gov/policy-papers/conservative-victories-at-the-supreme-court [htt
ps://perma.cc/9F9P-7FXC]; see also Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2432–
33 (2022).
9. 11 Facts About Cyberbullying, DO SOMETHING, https://www.dosomething.or
g/us/facts/11-facts-about-cyber-bullying [https://perma.cc/MY84-G7T4] (last visited July 19,
2023) (“About 37% of young people between the ages of 12 and 17 have been bullied online.
30% have had it happen more than once.”); World Suicide Prevention Day 2022, WORLD
HEALTH ORG., https://www.who.int/campaigns/world-suicide-prevention-day/2022 [https://pe
rma.cc/6BKE-XKAW] (last visited July 17, 2023) (“An estimated 703,000 people a year take
their life around the world. For every suicide, there are likely 20 other people making a
suicide attempt and many more have serious thoughts of suicide.”).
10. Oshan Jarow, Did Suicide Exist Before Society?, MEDIUM (Mar. 8, 2018),
https://oshanjarow.medium.com/did-suicide-exist-before-society-ac9458b5c69c [https://per
ma.cc/UH2P-DK7Z].
11. Saxby Pridmore et al., Two Mistaken Beliefs About Suicide, IRANIAN J. OF PSYCH.
182, 182 (2019).
12. Id.
13. Id.
14. Nila A. Nathan & Kalpana I. Nathan, Suicide, Stigma, and Utilizing Social
Media Platforms to Gauge Public Perceptions, FRONTIERS IN PSYCHIATRY (Jan. 13, 2020),
https://www.frontiersin.org/articles/10.3389/fpsyt.2019.00947/full [https://perma.cc/3BLC-
Z73D].
15. Id. (stating that nearly 800,000 people die from suicide each year); Facts About
Suicide, CTRS. FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/suicide/facts/i
ndex.html [https://perma.cc/88RH-2Z3U] (last updated May 8, 2023) (“Suicide was
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In English common law, suicide—defined as one who

“deliberately puts an end to his own existence, or commits any
unlawful malicious act, the consequence of which is his own
death,”16—was a criminal act.17 Beginning in the mid-thirteenth
century, “self-murder” became a crime under common law in
England, paralleling the Church’s long-held belief that suicide was
a mortal sin.18 If proven, the deceased was denied a Christian
burial and the family was stripped of their belongings.19 Following
the passage of The Forfeiture Act of 1870, England terminated this
practice of reverting property possession to the king.20 In 1961,
England passed legislation that abolished suicide as a crime.21 In
some other countries, suicide was never criminalized and was seen
as a patriotic alternative to dishonor.22 Similarly, in Romeo and
Juliet, arguably one of the greatest love stories of all time, the
main characters’ suicides were portrayed as displays of love and
encouraged the end of a family feud.23
In the United States, there has never been a recorded instance
of punishing suicide through improper treatment of the corpse.24
Similarly, the United States did not engage in property forfeiture,

responsible for 48,183 deaths in 2021, which is about one death every 11 minutes. The
number of people who think about or attempt suicide is even higher. In 2021, an estimated
12.3 million American adults seriously thought about suicide, 3.5 million planned a suicide
attempt, and 1.7 million attempted suicide.”).
16. WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 937 (1877).
17. Edward Richards, History of Suicide Law, PUB. HEALTH L. MAP, https://biotech
.law.lsu.edu/map/HistoryofSuicideLaw.html [https://perma.cc/MR7C-VVSQ] (last updated
Apr. 19, 2009).
18. See generally Gerry Holt, When Suicide Was Illegal, BBC NEWS (Aug. 3, 2011),
https://www.bbc.com/news/magazine-14374296 [https://perma.cc/SW22-EB8A].
19. Id. (explaining that instead of a Christian burial, the bodies would be carried to
a crossroads in the middle of the night and dumped in a pit); see also Washington v.
Glucksberg, 521 U.S. 702, 711 (1997) (“[I]f a man slays himself in weariness of life or
because he is unwilling to endure further bodily pain . . . [only] his movable goods [were]
confiscated.” (quoting 2 HENRY DE BRACTON, BRACTON ON THE LAWS AND CUSTOMS OF
ENGLAND (George E. Woodbine ed. & Samuel E. Thorne trans., 1968))).
20. David S. Markson, Comment, The Punishment of Suicide—A Need for Change, 14
VILL. L. REV. 463, 465 (1969).
21. Id.
22. See id. (stating that there has never been punishment for suicide in the United
States); see also Joseph M. Pierre, Culturally Sanctioned Suicide: Euthanasia, Seppuku,
and Terrorist Martyrdom, 5 WORLD J. PSYCH. 4, 7–11 (2015) (explaining how some cultures
frame suicide as honorable).
23. See Romeo and Juliet, SHAKESPEARE BIRTHPLACE TR., https://www.shakespeare
.org.uk/explore-shakespeare/shakespedia/shakespeares-plays/romeo-and-juliet/ [https://pe
rma.cc/ZB53-PLH7] (last visited July 17, 2023) (providing a summary of Romeo and Juliet).
24. Donald M. Wright, Comment, Criminal Aspects of Suicide in the United States, 7
N.C. CENT. L. REV. 156, 157 (1975).
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214 HOUSTON LAW REVIEW [61:1

primarily due to the prohibitions against it in state constitutions.25

Courts had little power to dissuade suicide after the removal of the
debilitating common law punishment.26 Many states were
“confronted with the problem of maintaining a law under which
the criminal could not be punished, [thus] most American courts
ignored suicide as a common law crime.”27 In the numerous states
that later replaced the common law with statutory law, suicide
was disregarded and the common law prohibition against suicide
went idle in those states.28
Historically, although not punishable, various states listed
the act of suicide as a crime.29 In the mid-1960s, only nine states
criminalized suicide—Alabama, Kentucky, New Jersey, North
Carolina, North Dakota, Oklahoma, South Carolina, South
Dakota, and Washington.30 By the late 1980s, thirty of the fifty
states had no laws prohibiting suicide or suicide attempts, but
every state had laws declaring it a felony to aid, advise, or
encourage another person to commit suicide.31 By 1975, only two

25. Id. (explaining that “[w]ith the removal of the common law punishment, which
only brought shame and poverty to the suicide’s survivors, there was little the courts could
do to deter suicide”); see also N.C. CONST. art. XI, § 1. (“The following punishments only
shall be known to the laws of this State: death, imprisonment, fines, suspension of a jail or
prison term with or without conditions, restitution, community service, restraints on
liberty, work programs, removal from office, and disqualification to hold and enjoy and
office of honor, trust, or profit under this State.”).
26. Wright, supra note 24.
27. Id. For example, the legislature of the Providence Plantations, which later
became Rhode Island, declared in 1647 that:
Self-murder is by all agreed to be the most unnatural, and it is by this present
Assembly declared, to be that, wherein he that doth it, kills himself out of a
premeditated hatred against his own life or other humor: . . . his goods and
chattels are the king’s custom, but not his debts nor lands; but in case he be
an infant, a lunatic, mad or distracted man, he forfeits nothing.
Washington v. Glucksberg, 521 U.S. 702, 712–13 (1997) (quoting THE EARLIEST ACTS AND
LAWS OF THE COLONY OF RHODE ISLAND AND PROVIDENCE PLANTATIONS 1647–1719, at 19
(John D. Cushing ed., 1977)).
28. Wright, supra note 24; see also WIS. STAT. ANN. § 939.10 (West 2023) (“Common
law crimes are abolished.”).
29. Wright, supra note 24.
30. Robert E. Litman, Medical-Legal Aspects of Suicide, 6 WASHBURN L.J. 395, 395
(1967).
31. E.S. SHNEIDMAN, Approaches and Commonalities of Suicide, in SUICIDE AND ITS
PREVENTION: THE ROLE OF ATTITUDE AND IMITATION 14, 24 (René F.W. Diekstra et al. eds.,
1989); see also TEX. PENAL CODE ANN. § 22.08 (making it a crime if a person “aids or
attempts to aid [another] to commit or attempt to commit suicide”); N.M. STAT. ANN. § 22.08
(2020) (making it a crime if a person “aids or attempts to aid [another] to commit or attempt
to commit suicide”); N.M. STAT. ANN. § 30-2-4 (2020) (“Assisting suicide consists of
deliberately aiding another in the taking of his own life. Whoever commits assisting suicide
is guilty of a fourth degree felony.”).
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states still listed suicide as a crime,32 and these states have since
removed that classification.33
Today, suicide is no longer a crime in any state.34 Society
punishes criminals to achieve certain goals such as deterrence,
incapacitation, rehabilitation, retribution, and reparation.35
Punishing suicide does not achieve any of these goals and is
therefore contrary to the justifications for punishment in our
criminal justice system.

B. Causation Generally and Regarding Suicide

The causation element in criminal law, which relates to
conduct and a specific result, is composed of two requirements:
actual causation (cause-in-fact) and legal causation (proximate
cause).36 Cause-in-fact is typically satisfied through the “but-for”
test: showing that but-for the antecedent conduct, the result would
not have occurred.37 To satisfy proximate cause, “it must appear
that the injury was the natural and probable consequence of
the . . . wrongful act, and that it ought to have been foreseen in the
light of the attending circumstances.”38 However, it is possible for
the chain of causation to be broken by an “intervening cause.”39 An
intervening cause is an act of another party that comes between
an antecedent course of conduct and a consequence.40 When an
intervening act occurs, a foreseeability standard usually governs
the proximate cause analysis.41 An intervening act only

32. See Wright, supra note 24 (“Today, only South Carolina and Alabama still hold
suicide a crime, although there has been no prosecution for suicide in these states.”).
33. Suicide, CORNELL L. SCH. LEGAL INFO. INST., https://www.law.cornell.edu/wex/
suicide [https://perma.cc/29JS-96NU] (last updated Aug. 2021) (explaining that “[s]uicide
is no longer considered a crime in the United States”).
34. Id.
35. Carla M. Zavala, Comment, Manslaughter by Text: Is Encouraging Suicide
Manslaughter?, 47 SETON HALL L. REV., 297, 318 (2016) (describing the four main
underlying justifications of criminal punishment).
36. See Burrage v. United States, 571 U.S. 204, 210 (2014).
37. Id. at 211 (quoting MODEL PENAL CODE § 2.03(1)(a)).
38. See Milwaukee & Saint Paul Ry. Co. v. Kellogg, 94 U.S. 469, 474–75 (1876) (“The
question always is, [w]as there an unbroken connection between the wrongful act and the
injury, a continuous operation? Did the facts constitute a continuous succession of events,
so linked together as to make a natural whole, or was there some new and independent
cause intervening between the wrong and the jury?”).
39. Eric A. Johnson, Two Kinds of Coincidence: Why Courts Distinguish Dependent
from Independent Intervening Causes, 25 GEO. MASON L. REV. 77, 83 (2017) (stating that
intervening causes are “individual temporally intervening events without which the
wrongdoer’s act would not have caused the result”).
40. 65 C.J.S. Negligence § 221 (2023).
41. Id.
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supersedes another act as a proximate cause of the consequence if

the act is unforeseeable.42A reasonably “foreseeable intervening
act” does not break proximate cause.43
The question of causation becomes increasingly difficult when
a victim’s actions are voluntary.44 Generally, suicide breaks the
chain of legal causation.45 When a person voluntarily “makes the
choice to harm him or herself, the act is superseding.”46 In Cotten
v. Wilson, the decedent’s estate sued the defendant for negligently
facilitating the decedent’s suicide.47 While alone, the decedent
committed suicide by shooting herself with an unsecured gun in
the defendant’s home.48 The decedent’s estate alleged that the
defendant “should have known the decedent was potentially
suicidal and that [the defendant] negligently facilitated the suicide
by failing to secure the gun while the decedent was in his home.”49
The Supreme Court of Tennessee affirmed the trial court’s grant
of summary judgment in favor of the defendant.50 The court held
that the evidence was insufficient to find that the decedent’s
suicide was a reasonably foreseeable probability; consequently,
the decedent’s suicide constituted a superseding intervening event
that broke the chain of proximate causation.51
In Commonwealth v. Carter, Carter (then seventeen years
old) was indicted for involuntary manslaughter after she
encouraged Roy (then eighteen years old) to commit suicide.52
Carter and Roy met in 2011 and were dating at the time of Roy’s
death.53 Most of their contact occurred through phone calls and

42. Id.
43. Id.
44. Nicholas LaPalme, Note, Michelle Carter and the Curious Case of Causation: How
to Respond to a Newly Emerging Class of Suicide-Related Proceedings, 98 B.U. L. REV. 1443,
1448 (2018).
45. Id. (explaining that “[i]n general, ‘voluntary harm-doing usually suffices to break
the chain of legal cause’”).
46. Id. at 1448–49. In Lewis v. State, a victim’s act of shooting himself with a gun
previously used by the defendant while coaching the victim on how to play Russian roulette,
was found to have superseded the defendant’s act by the Alabama Criminal Court of
Appeals. Lewis v. State, 474 So. 2d 766, 771 (Ala. Crim. App. 1985).
47. Cotten v. Wilson, 576 S.W.3d 626, 629, 633–34 (Tenn. 2019) (“In this wrongful
death action, the plaintiff estate seeks to hold the defendant liable for negligently
facilitating the decedent’s suicide.”).
48. Id. at 629.
49. Id.
50. Id.
51. Id. at 653.
52. Carter I, 52 N.E.3d 1054, 1056 (Mass. 2016).
53. Id. at 1057.
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text messages because they lived in distant, separate towns.54

Their messages later revealed that Carter was aware of Roy’s prior
suicide attempt and his history of mental illness, and much of their
communication focused on these suicidal ideations.55 Through text
messages, Carter “encouraged the victim to kill himself, instructed
him as to when and how he should kill himself, assuaged his
concerns over killing himself, and chastised him when he delayed
doing so.”56 Phone records confirm that Carter texted Roy the
phrase “[y]ou just [have] to do it” four times between July 11 and
12, 2014.57 Carter and Roy had two phone conversations when Roy
was in his truck attempting suicide.58 The content of those
conversations is only available because after Roy’s death, Carter
sent a text message to her friend, Samantha Boardman,
explaining that, “at one point during the suicide, [Roy] got out of
his truck because he was ‘scared,’ and [Carter] commanded him to
get back in.”59
Before announcing his decision, Judge Moniz divided the
evidence of the case into different components.60 The court found
that the actions Carter took from June 29, 2014 through the
moment Roy got out of the truck “constituted ‘wanton and reckless
conduct’ and exhibited a ‘serious disregard of the well-being of
Roy.’”61 Nonetheless, the Commonwealth had not proven as to that
time period that her reckless or wanton behavior caused Roy’s
death.62 Roy struggled with his mental health and took significant
actions to end his own life.63 However, he broke that chain of self-
causation by exiting the vehicle.64 He took himself out of the toxic
environment that it had become.65 When Carter realized Roy had
exited the truck, she instructed him to get back in when she had

54. Id.
55. Id.
56. Id. at 1057–58.
57. Id. at 1058–59.
58. Id. at 1059.
59. Id.; Pippa Raga, The Texts Michelle Carter Sent Sam Boardman Played a Huge
Role in Her Conviction, DISTRACTIFY (July 10, 2019, 6:11 PM), https://www.distractify.c
om/p/michelle-carter-sam-boardman [https://perma.cc/7EKZ-R3FX].
60. Beth David, Carter Found Guilty in Death of Conrad Roy III, FAIRHAVEN
NEIGHBORHOOD NEWS (June 22, 2017), https://fairhavenneighborhoodnews.com/carter-
found-guilty-death-conrad-roy-iii/ [https://perma.cc/GX5X-7LRG].
61. Id.
62. Id.
63. I Love You, Now Die: The Commonwealth v. Michelle Carter: Part 1 “The
Prosecution” (HBO 2019).
64. See David, supra note 60.
65. I Love You, Now Die, supra note 63.
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reason to know it was becoming, or was, a toxic environment that

threatened human life.66 The court found that “where one’s actions
created a life-threatening risk to another, there would be a duty to
take reasonable steps to alleviate the risk.”67 Where there is
“reckless failure to fulfill this duty,” the resulting charge may be
manslaughter.68 The court found that Carter’s actions and her
failure to act when she created that duty for herself, constituted
“wanton and reckless conduct.”69
At the time the case was decided, Massachusetts did not have
a statute prohibiting the encouragement of suicide, so Carter was
convicted under the common law crime of involuntary
manslaughter.70 In Massachusetts, the elements of common law
involuntary manslaughter require that a defendant’s conduct is
(1) intentional; (2) wanton or reckless; and (3) a cause of the
victim’s death.71 The court focused on the second element without
spending much time at all on the first or third element.72
Additionally, the court took it a step further, saying that because
Carter caused the risk, she owed Roy a duty to take reasonable
steps to alleviate it.73
This case was unprecedented because it was the first time
words alone were enough to constitute a charge of manslaughter.74
In its decision, the court mentioned other cases such as
Commonwealth v. Atencio and Persampieri v. Commonwealth,
where the court contemplated charges of involuntary
manslaughter against defendants where the deaths of the victims
were self-inflicted; however, these cases were distinct from
Carter.75 In Atencio, the two defendants, Atencio and Marshall,
and the deceased were playing a game of “Russian roulette.”76

66. Id.
67. David, supra note 60.
68. See id.
69. Id.
70. Carter II, 115 N.E.3d 559, 569 (Mass. 2019) (“Manslaughter is a common-law
crime that has not been codified by statute in Massachusetts.”); see David, supra note 60.
71. Carter I, 52 N.E.3d 1054, 1061 (Mass. 2016).
72. See id. at 1061–64.
73. David, supra note 60.
74. LaPalme, supra note 44, 1458–59, 1459 n.129 (“Carter is the first person ever
convicted, anywhere, in such unusual circumstances. If this Court affirms, Massachusetts
would be the only state to uphold an involuntary manslaughter conviction where an absent
defendant, with words alone, encouraged another person to commit suicide.” (quoting Brief
for Defendant-Appellant at 28–29, Commonwealth v. Carter, No. SJC-12501 (Mass. June
29, 2018))).
75. Carter I, 52 N.E.3d at 1062.
76. Commonwealth v. Atencio, 189 N.E.2d 223, 224 (Mass. 1963).
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During the game, nothing happened when Marshall, the first to

take the gun and point it at his head, pulled the trigger.77 Marshall
transferred the gun to Atencio, who, in turn, aimed the gun at his
own head and pulled the trigger with no bullet exiting the
chamber.78 The deceased followed suit after Atencio offered him
the gun, facing a different fate: “when he pointed it at his own head
and pulled the trigger, ‘[t]he cartridge exploded, and he fell over
dead.’”79 The court affirmed both Marshall and Atencio’s
convictions, placing no weight on the fact that Atencio handed the
deceased the gun, not Marshall.80 In Persampieri, the victim (the
defendant’s wife) threatened suicide after learning from the
defendant of his intent to divorce her.81 The defendant provoked
and goaded his wife, rather than attempting to “bring [her] to her
senses.”82 When she retrieved a gun, the defendant assisted in
loading it and handed it to her while emphasizing the safety
switch’s off-position.83 She placed the butt of the gun on the ground
but struggled with the trigger.84 The defendant suggested that she
would succeed in pulling the trigger if she removed her shoe; she
followed the defendant’s advice “at which point she successfully
shot and killed herself.”85 The husband was convicted of
involuntary manslaughter.86 The court held that he showed an
audacious disregard for his wife’s well-being and the possible
consequences of his actions.87
In Atencio, Persampieri, and You, the defendants were
physically with the victims when they ended their lives.88 In
Carter, Carter was not physically with Roy when he took his own
life.89 They spoke on the phone twice, but she was not physically

77. Id.
78. Id.
79. Carter I, 52 N.E.3d at 1062 (quoting Atencio, 189 N.E.2d at 224).
80. Atencio, 189 N.E.2d at 226.
81. Persampieri v. Commonwealth, 175 N.E.2d 387, 389 (Mass. 1961).
82. Id. (explaining that the defendant, with the knowledge of his wife’s two prior
suicide attempts, told her she was “chicken—and wouldn’t do it.”).
83. Id.
84. See id.
85. Id.
86. Id. at 390.
87. Id.
88. See id. at 389; see also Commonwealth v. Atencio, 189 N.E.2d 223, 224 (Mass.
1963); Brief of Petitioner-Appellant at 89, Commonwealth v. You, No. SJC-13181 (Mass.
Oct. 12, 2020) (explaining that the defendant was present at the time of death and the
victim looked her in the eye before he jumped).
89. Carter II, 115 N.E.3d 559, 565 (Mass. 2019).
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there.90 Her absence gave Roy the opportunity to simply ignore her
calls or hang up the phone, where ignoring someone in person is
more difficult. In Atencio, the gun was passed to the victim directly
by one of the defendants and in Persampieri, the defendant loaded
and handed the gun directly to the victim.91 In Carter, Roy,
without any physical help from Carter, acquired a generator,
researched how to use it, and found a secluded spot to carry out
his suicide.92

III. ANALYSIS

A. The Court Incorrectly Decided that Carter Owed Roy a Duty.

Generally, people are only punished for what they do and not
for what they fail to do because the “actus reus requirement is
central to the criminal law.”93 Without an actus reus requirement,
we could punish people simply for having evil thoughts.94
However, the law acknowledges that under certain circumstances,
the omission of a duty owed by one person to another–when such
omission results in the death of the person to whom the duty is
owed–will make the other culpable of manslaughter.95 The
foundation of this principle is that the omission must constitute a
breach of a legal duty rather than a simple moral responsibility.96
An omission can be the basis for criminal liability when there is a
statutory duty; special relationship; contractual duty; voluntary
assumption of care that secludes the person, thereby preventing
others from rendering aid; or, creating the risk of harm.97 Being
that there was not a statutory duty,98 special relationship,99
contractual duty, or a voluntary assumption of care, the court said

90. See id.

91. Atencio, 189 N.E.2d at 224; Persampieri, 175 N.E.2d at 389.
92. Carter II, 115 N.E.3d at 568.
93. David Gray, “You Know You’ve Gotta Help Me Out . . .”, 126 PENN. ST. L. REV.
337, 337, 342 (2022).
94. Id. at 337 (“We only punish people for what they do. We do not punish evil
thoughts.”).
95. People v. Beardsley, 113 N.W. 1128, 1129 (Mich. 1907).
96. Id. (“The law recognizes that under some circumstances the omission of a duty
owed by one individual to another, where such omission results in death of the one to whom
the duty is owing, will make the other chargeable with manslaughter . . . . This rule of law
is always based upon the proposition that the duty neglected must be a legal duty, and not
a mere moral obligation.”).
97. Paul H. Robinson, Criminal Liability for Omissions: A Brief Summary and
Critique of the Law in the United States, 29 N.Y. L. REV. 101, 112, 115–16 (1984).
98. See Carter II, 115 N.E.3d 559, 569 (Mass. 2019).
99. See id.
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Carter owed Roy a duty because she created the risk of harm.100
The court held that Roy was the cause of the harm up until the
time he got out of the truck.101 When he got out of the truck, he
broke the chain of causation of his own actions; and when Carter
instructed him to get back in, she became the cause of the harm
through words alone.102 She told him to get back in the truck and
he did.103
It can be difficult to ascertain whether an actor’s conduct
created a risk of harm.104 The Third Restatement of Torts provides
an example to better illustrate when a duty is owed because a
defendant created the risk of harm.105 A retail store operating in
an unsafe and isolated area might be portrayed as creating a risk
of criminal activity for customers.106 If the characterization were
accepted, a duty would be imposed on the store to mitigate this
risk for the people on site, including employees and customers.107
Yet, establishing whether the store generated such a potential risk
of criminal activity necessitates an assessment of what might have
transpired if the store were not operating.108 Naturally, questions
arise: would a customer have faced a similar threat of attack
elsewhere, or would they have opted out of late-night shopping but
for the store’s existence?109
In Carter, Roy had been treating his mental health issues for
almost five years.110 The year before his death, Roy attempted to
take his own life by taking an overdose of acetaminophen, but he
was saved by a friend who contacted emergency services.111 Even
before he met Carter, Roy had a history of struggling with similar,
self-harming behaviors that he exhibited on the day of his

100. See David, supra note 60.

101. Id.
102. See id.
103. Carter I, 52 N.E.3d 1054, 1063 (Mass. 2016).
104. 2 RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL AND EMOTIONAL HARM
§ 37 (AM. L. INST. 2012).
105. Id.
106. Id.
107. Id.
108. Id.
109. Id. (explaining that there are “specific rules addressing the duty question . . . for
many of the common patterns in which these difficult cases arise”).
110. Carter I, 52 N.E.3d 1054, 1056–57 (Mass. 2016).
111. Id. at 1057.
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222 HOUSTON LAW REVIEW [61:1

suicide.112 Because the risk was already there, the court should not
have concluded that Carter created the risk.
Additionally, depending on the jurisdiction, the fact that
Carter was aware of the victim’s life-threatening situation may
have subjected her to liability.113 Traditionally, American common
law “never imposes a duty to rescue, except when a special
relationship exists.”114 However, as technology continues to
advance, many states have enacted laws that explicitly require a
duty to report.115 Nine states, including Massachusetts, require a
person to report a broad range of crimes, generally including
violence.116 The Massachusetts statute is titled “Reports of Crime
to Law Enforcement Officials” and states that
[w]hoever knows that another person is a victim of
aggravated rape, rape, murder, manslaughter or
armed robbery and is at the scene of said crime
shall, to the extent that said person can do so
without danger or peril to himself or others, report
said crime to an appropriate law enforcement
official as soon as reasonably practicable. Any
person who violates this section shall be punished
by a fine of not less than five hundred nor more than
two thousand and five hundred dollars.117
Being that suicide is not listed in this statute, there was no
duty to report. Moving forward, it would be beneficial for the
Massachusetts legislature to amend the statute to include suicide.
If charged under this statute, the punishment would only be a fine,

112. See id.; see also Jan Ransom & John R. Ellement, Texting Suicide Came After
‘Sick Game of Life and Death’, BOS. GLOBE (June 6, 2017, 12:18 PM), https://www.b
ostonglobe.com/metro/2017/06/06/woman-charged-with-cajoling-friend-commit-suicide-fac
es-involuntary-manslaughter-trial/8ylBhZifsAYU2ix71ZFQTJ/story.html [https://perma.c
c/L958-YJD8] (“In testimony . . . Lynn Roy said her son took an overdose of an over-the-
counter pain prescription in 2012 and was hospitalized.”).
113. See Sharon Yamen et al., Am I My Brother’s Keeper? How Technology Necessitates
Reform of the Lack of Duty to Rescue or Duty to Report Laws in the United States, 28 B.U.
PUB. INT. L.J. 117, 127–28 (2019).
114. Id. at 117, 127, 137 n.159 (listing the categories in which a legal duty is imposed
to rescue others as follows: statutory duties, duties based upon a special relationship, duty
of a professional rescuer (contractual duty), voluntary assumption of care that secludes the
person, thereby preventing others from rendering aid, negligent injury caused by a rescuer,
an innocent injury caused by a rescuer, and the duty to not prevent the giving of aid).
115. Zachary D. Kaufman, Protectors of Predators or Prey: Bystanders and Upstanders
Amid Sexual Crimes, 92 S. CAL. L. REV. 1317, 1342, 1346 (2019) (“Twenty-eight
states . . . have adopted a duty to report, although these statutes’ scopes also vary.”).
116. Id. at 1346, 1347 n.150.
117. MASS. GEN. LAWS ch. 268, § 40 (2022).
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but it is better than nothing and would notify people in this kind
of situation of what is and is not legally acceptable.

B. The Court’s Holding Blurred the Line Between Freedom of

Speech and Criminal Liability.
The First Amendment of the U.S. Constitution states that
“Congress shall make no law . . . abridging the freedom of
speech . . . .”118 But this freedom is not absolute.119 The Supreme
Court has created narrow exceptions to the First Amendment but
has never considered whether criminalizing speech that
encourages another to commit suicide violates the right to free
speech.120 The categories of speech that are excluded from First
Amendment protection include “obscenity, defamation,
fraud[ulent speech leading to deception], incitement, fighting
words, true threats, speech integral to criminal conduct, and child
pornography.”121 The most analogous category for the speech at
issue here is fighting words. Fighting words are “those which by
their very utterance inflict injury or tend to incite an immediate
breach of the peace.”122 At first glance, it seems Carter’s speech
may fall under this category, but that is unlikely. As the doctrine
has evolved, courts have become more interested in the context of
the speech rather than the content.123 The Supreme Court has
gone so far as to say that for speech to be considered fighting
words, the words must be directed to an individual in a face-to-
face context.124 Similarly, one could argue that Carter’s speech was
a true threat. The Supreme Court defines true threats as
statements indicating that the speaker intends to commit an act
of unlawful violence against a particular person or group.125

118. U.S. CONST. amend. I.

119. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942); The First
Amendment to the U.S. Constitution, https://my.lwv.org/sites/default/files/first_amendm
ent_to_the_us_constitution_-_money_in_politics.pdf [https://perma.cc/MRU5-J58B] (last
visited July 19, 2023) (“The U.S. Supreme Court has ruled that the government sometimes
may be allowed to limit speech . . . . [T]he content of speech can be limited if it is an
incitement to violence or obscene and without any redeeming social value.”).
120. Yixuan Zhang, If Words Can Kill, How Should Criminal Law Intervene?, 56 AM.
CRIM. L. REV. ONLINE 59, 59 (2019).
121. Victoria L. Killion, The First Amendment: Categories of Speech, CONG. RSCH.
SERV., https://sgp.fas.org/crs/misc/IF11072.pdf [https://perma.cc/8UKN-Q4UB] (last updated
Jan. 16, 2019).
122. Michael J. Mannheimer, The Fighting Words Doctrine, 93 COLUM. L. REV. 1527,
1527 (1993) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).
123. Id. at 1538.
124. Id. at 1534.
125. Virginia v. Black, 538 U.S. 343, 359 (2003).
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224 HOUSTON LAW REVIEW [61:1

Prohibiting true threats “‘protect[s] individuals from the fear of

violence’ and . . . ‘the possibility that the threatened violence will
occur.’”126 However, in Carter, the defendant did not threaten the
victim.127 Nothing indicates that Roy felt threatened and there is
no evidence of the defendant saying, “kill yourself or else.”128
Because Carter’s speech does not fall into one of the excluded
categories, restricting her speech is more difficult. Content-based
restrictions on speech must survive strict scrutiny—the most
exacting type of review—requiring that the restriction “furthers a
compelling interest and is narrowly tailored to achieve that
interest.”129
The first prong of the strict scrutiny analysis is easily satisfied
because regulating speech that encourages suicide serves a
compelling government interest. Preserving human life is
arguably the most compelling government interest.130 However,
the second prong poses more difficulty. The speech restriction
needs to be narrowly tailored to achieve the compelling
government interest.131 The government weighs two important
state interests: preserving human life and protecting the right to
free speech. The government must show that no less restrictive
alternative can achieve its objective.132 A law is unconstitutionally
overbroad if it regulates substantially more speech than the
Constitution allows.133
In Carter, the court found that the restriction of speech was
narrowly tailored because the only speech it made punishable was
“speech integral to [a course of] criminal conduct.”134 In this case,

126. Id. at 360 (quoting R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992)).
127. See Carter I, 52 N.E.3d 1054, 1057–59 (Mass. 2016).
128. Id.
129. Reed v. Town of Gilbert, 576 U.S. 155, 171 (2015). When it applies strict scrutiny,
the Court requires the government to demonstrate that its law “furthers a compelling
interest and is narrowly tailored to achieve that interest.” Citizens United v. Fed. Election
Comm’n, 558 U.S. 310, 339–40 (2010).
130. See Ronald Steiner, Compelling State Interest, FIRST AMEND. ENCYC., https://ww
w.mtsu.edu/first-amendment/article/31/compelling-state-interest [https://perma.cc/KP9Q-
4CC2] (last visited Jan. 29, 2023) (“An interest is compelling when it is essential or
necessary rather than a matter of choice, preference, or discretion.”).
131. Reed, 576 U.S. at 171.
132. Robert M. Bastress, Jr., Note, The Less Restrictive Alternative in Constitutional
Adjudication: An Analysis, a Justification, and Some Criteria, 27 VAND. L. REV. 971, 997
(1974).
133. Richard Parker, Overbreadth, FIRST AMEND. ENCYC., https://www.mtsu.edu/first-
amendment/article/1005/overbreadth [https://perma.cc/CS3W-24TS] (last updated Sept.
2017).
134. Carter II, 115 N.E.3d 559, 571 (Mass. 2019) (quoting United States v. Stevens,
559 U.S. 460, 468 (2010)).
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the speech was integral as it was “a systematic campaign of

coercion on which the virtually present defendant embarked—
captured and preserved through her text messages—that targeted
the equivocating young victim’s insecurities and acted to subvert
his willpower in favor of her own.”135 Thus, “[o]nly the wanton or
reckless pressuring of a person to commit suicide that overpowers
that person’s will to live has been proscribed.”136
The standard prescribed by the court is unworkable. At what
point does pressure overpower a person’s will to live? Many, if not
all people, will endure hardship and pressure throughout their
lives. According to a study performed by the American Bar
Association in 2017, 17% of law students suffer from depression,
25% of law students are at risk for alcoholism, 37% of law students
report mild to severe anxiety, and 6% of law students report
having suicidal thoughts in the last year.137 If this is the applicable
standard, then one may argue that the pressures put on law
students by professors and parents are sufficient to overpower a
person’s will to live. Does that mean that speech is not protected?
The standard used by the court in Carter leaves many line-
drawing problems.
Further, the court found that the speech in question was
“speech integral to criminal conduct,” thus restricting speech
based on the content.138 However, the court does not apply the
narrowly tailored requirement, but rather determines that the
speech at issue falls within “well-defined and narrowly limited
classes of speech.”139 The court held, “[w]e are therefore not
punishing words alone, as the defendant claims, but reckless or
wanton words causing death. The speech at issue is integral to a
course of criminal conduct and thus does not raise any
constitutional problem.”140

135. Id. (quoting Carter I, 52 N.E.3d 1054 (Mass. 2016)).

136. Id. at 572.
137. New Study on Lawyer Well-Being Reveals Serious Concerns for Legal Profession,
AM. BAR ASS’N (Dec. 2017), https://www.americanbar.org/news/abanews/publications/you
raba/2017/december-2017/secrecy-and-fear-of-stigma-among-the-barriers-to-lawyer-well-b
ei/ [https://perma.cc/ET7M-LCYN]. A more recent study showed that when entering law
school, fewer than 10% of law students reported depression. After one semester, the number
increased to 27%. After two semesters, the number increased to 34%. After three years,
40% of students report depression. Janet Thompson Jackson, Legal Education Needs a
Wellness Reckoning, BLOOMBERG L. (Apr. 7, 2021, 3:01 AM), https://news.bloomberglaw.co
m/us-law-week/legal-education-needs-a-wellness-reckoning [https://perma.cc/F5MQ-HTC9].
138. See Killion, supra note 121; Carter II, 115 N.E.3d at 572.
139. Carter II, 115 N.E.3d at 571 (quoting Brown v. Ent. Merchs. Ass’n, 564 U.S. 786,
804 (2011)).
140. Id. at 572.
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226 HOUSTON LAW REVIEW [61:1

This holding is inconsistent with the idea that suicide is not a

crime.141 If taking one’s own life is not a crime, then the speech in
question is not integral to a course of criminal conduct. The court
seems to work backwards in that it starts with the assumption
that there was a crime and then says the speech was in
furtherance of the crime; however, a crime never occurred.
Similarly, this holding will make it onerous for people to seek help.
Individuals may distance themselves from depressed or suicidal
individuals due to the fear of saying the wrong thing and
potentially being held criminally liable. Carter argued that she did
what she did to help Roy.142 Carter said she knew that if he did not
succeed that time, he would keep attempting suicide and she did
not want him to live like that.143 The ambiguity in speech makes
it easy to imagine a situation where a person’s intentions are pure,
but their words do more harm than good.
Since Carter, many states have enacted statutes that
criminalize assisting, aiding, and encouraging suicide.144 Many
constitutional challenges have been brought, arguing that these
statutes violate the First Amendment.145 In most cases, the courts
have rejected the constitutional challenges, but in some, they have
agreed.146 In State v. Melchert-Dinkel, the defendant challenged
the constitutionality of a state statute that made it illegal to
“intentionally advise[ ], encourage[ ], or assist[ ] another in taking
the other’s own life.”147 The court found the statutory prohibition
against assisting another in committing suicide survived strict
scrutiny, but found that nothing in the definitions of “advise” or
“encourage” required a direct, causal connection to a suicide.148
Moreover, the restrictions on advising and encouraging were
sufficiently wide-reaching to allow the State to pursue legal action

141. Suicide, supra note 33.

142. Greg Hanlon & Jeff Truesdell, Michelle Carter Case: The ‘Texting-Suicide’ Case
Five Years After Sentencing, PEOPLE, https://people.com/crime/michelle-carter-trial-gallery-
key-moments-conrad-roy-suicide/ [https://perma.cc/UY8B-GV5Y] (last updated Aug. 3,
2022, 9:28 AM).
143. Id. (“‘I knew he would do it all over the next day and I couldn’t have him live the
way he was living anymore,’ Carter allegedly wrote to Boardman. ‘I couldn’t do it. I wouldn’t
let him.’”).
144. Guyora Binder & Luis Chiesa, The Puzzle of Inciting Suicide, 56 AM. CRIM. L.
REV. 65, 114–15, 118 (2019).
145. Deborah F. Buckman, Validity of Criminalization of Urging or Assisting Suicide
Under State Statutes and Common Law, 96 A.L.R. 6th 475, 482 (2014).
146. See State v. Melchert-Dinkel, 844 N.W.2d 13, 23–24 (Minn. 2014).
147. Id. at 16 (quoting MINN. STAT. § 609.215 (2012)).
148. Id. at 23 (“Unlike the definition of ‘assist,’ nothing in the definitions of ‘advise’ or
‘encourage’ requires a direct, causal connection to a suicide.”).
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against general conversations about suicide involving groups or

particular individuals.149
The State of California has a statue that says, “[a]ny person
who deliberately aids, advises, or encourages another to commit
suicide is guilty of a felony.”150 This law became effective in 2019
and, despite its arguable overbreadth, has yet to be ruled
unconstitutional.151 This statute does not seem to come within the
narrowly tailored standard necessary when restricting content-
based speech.152 Some people are much more easily “encouraged”
than others—should that be a factor? It leaves unclear as to what
point speech passes the threshold necessary to be charged under
this statute. Is telling someone to kill themselves once enough? Is
doing nothing when someone says they want to kill themselves
enough?
Despite efforts, Massachusetts still lacks a law criminalizing
the act of coercing someone to commit suicide.153 In 2021,
“Conrad’s Law,” Bill S.1032, received a hearing in the Judiciary
Committee.154 On February 7, 2022, the committee agreed to send
the bill for further study.155 No further actions have been
reported.156 Being that Conrad’s Law does not define “encourage,”

149. Id. at 24 (explaining that “[s]peech in support of suicide . . . is an expression of a

viewpoint on a matter of public concern” and “is therefore entitled to special protection”).
150. CAL. PENAL CODE § 401(a) (West 2023).
151. Id.
152. See Ruth Ann Strickland, Narrowly Tailored Laws, FIRST AMEND. ENCYC.,
https://www.mtsu.edu/first-amendment/article/1001/narrowly-tailored-laws [https://perma
.cc/BN8A-XDWK] (last visited Oct. 13, 2023) (“The Supreme Court has ruled that
government regulation of First Amendment rights must be ‘narrowly tailored,’ which
means that laws must be written precisely to place as few restrictions as possible on First
Amendment liberties.”). In other words, the restriction should not be so broad as to
impermissibly include speech that is protected by the First Amendment.
153. Heather Morrison, ‘Conrad’s Law,’ Bill Created After Michelle Carter Texting
Suicide Case, Still Not Passed; Case gets Looked at Through New Lens of Hulu’s ‘The Girl
from Plainville’, MASS LIVE (Mar. 29, 2022, 2:27 PM), https://www.masslive.com/pol
itics/2022/03/conrads-law-bill-created-after-michelle-carter-texting-suicide-case-still-not-p
assed-case-gets-looked-at-through-new-lens-of-hulus-the-girl-from-plainville.html [https://
perma.cc/9HQ2-2Y6Q].
154. An Act Relative to Preventing Suicide, S.B. 1032, 192nd Sess. (Mass. 2021),
https://malegislature.gov/Bills/192/S1032/BillHistory [https://perma.cc/L8QX-RASF] (last
visited July 17, 2023) (stating that on March 29, 2021, the Senate referred the bill to the
Committee on the Judiciary).
155. Id.
156. See generally id.
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if passed, it will likely be found unconstitutional due to its

vagueness and disregard for free speech principles.157

C. The Court Deprived Carter of Her Due Process Rights by

Deciding Law Retroactively.
The U.S. Supreme Court has consistently interpreted due
process, as required by the Constitution, to ensure no person is
obligated “to speculate as to the meaning of penal statutes.”158 In
fairness, “[a]ll are entitled to be informed as to what the [law]
commands or forbids.”159 Thus, the state is prohibited from
prosecuting defendants “unless the statute ‘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.’”160
Fairness drives this constitutional standard by allowing people to
knowingly conduct their lives in a way that avoids punishment.161
This safeguards against capricious enforcement of the law by law
enforcement, jurors, and judges.162 Additionally, these standards
give enforcers guidance as to how te people expect them to conduct
their professional responsibilities.
In Carter, “the defendant argue[d] that she lacked fair notice
that she could be convicted of involuntary manslaughter for her
role in the victim’s suicide and that her conviction therefore
violated her right to due process.”163 Carter contended that the
common “law of involuntary manslaughter was unconstitutionally
vague as applied to her conduct.”164 The court rejected this
argument.165 The standard the court used was “[a] statute is
unconstitutionality vague if [people] of common intelligence must
necessarily guess as its meaning . . . . If a statute has been
clarified by judicial explanation, however, it will withstand a
challenge on grounds of unconstitutional vagueness.”166 The court

157. See Niko Dimopoulos, Note, Cause of Death? Speech: The Problems with
Criminalizing the “Encouragement” of Suicide, 24 QUINNIPIAC HEALTH L.J. 211, 220, 228–
29 (2021).
158. Theodore J. Boutrous, Jr. & Blaine H. Evanson, Essay, The Enduring and
Universal Principle of “Fair Notice”, 86 S. CAL. L. REV. 193, 195 (2013).
159. Id.
160. Id. (quoting Skilling v. United States, 130 S. Ct. 2896, 2927–28 (2010)).
161. Id.
162. Id.
163. Carter II, 115 N.E.3d 559, 569 (Mass. 2019).
164. Id.
165. Id.
166. Id. (quoting Commonwealth v. Crawford, 722 N.E.2d 960, 966 (2000)).
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said, “it has long been established in common law that wanton or
reckless conduct that causes a person’s death constitutes
involuntary manslaughter.”167
Again, the court seems to work backwards. Even though the
wanton or reckless conduct element is well-established in
Massachusetts, it has not been well-established that words alone
can satisfy that element.168 Similarly, manslaughter is a common
law crime that has not been codified in Massachusetts. In a
majority of states, a person may only be tried for an offense that is
specified in the statutory law of the state.169 For due process
purposes, a “statute must give sufficient notice to enable a
reasonable person to comprehend what is prohibited.”170 In
Washington v. Glucksberg, the U.S. Supreme Court held that
Washington’s statute criminalizing the promotion of suicide
attempts did not violate the Fourteenth Amendment’s guarantee
of due process because the statute provided notice and a right to
assistance in committing suicide was not a fundamental liberty
interest.171 This case differs in that there was not a statute
prohibiting the encouragement of suicide and the right to free
speech is a fundamental liberty interest.172 Thus, Carter did not
receive fair notice and was deprived of her due process rights.

IV. CONCLUSION
The court’s holding in Carter v. Commonwealth was incorrect
because the First Amendment protected Carter’s speech. Though
immoral, the speech was not illegal, and the content-based

167. Id.
168. Id.
169. Hans-Heinrich Jescheck et al., Criminal Law, BRITANNICA, https://www.britann
ica.com/topic/criminal-law [https://perma.cc/MU8N-F9PU] (last updated June 30, 2023)
(“In the majority of the U.S. states, the common law of crimes has been repealed by
legislation. The effect of such actions is that no person may be tried for any offense that is
not specified in the statutory law of the state.”).
170. State v. McKnight, 576 S.E.2d 168, 176 (S.C. 2003); Philip A. Dynia, Vagueness,
FIRST AMEND. ENCYC. (2009), https://www.mtsu.edu/first-amendment/article/1027/vague
ness [https://perma.cc/YS2P-BAXK] (explaining that “due process requires that a law
provide fair warning and provides a ‘person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly’” (quoting Grayned
v. City of Rockford, 408 U.S. 104, 108 (1972))).
171. Washington v. Glucksberg, 521 U.S. 702, 728, 735 (1997) (“We therefore hold that
WASH. REV. CODE § 9A.36.060(1) (1994) does not violate the Fourteenth Amendment, either
on its face or ‘as applied to competent, terminally ill adults who wish to hasten their deaths
by obtaining medication prescribed by their doctors.’”).
172. U.S. CONST. amend. I (“Congress shall make no law . . . abridging freedom of
speech.”).
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restriction imposed by the court should not have survived strict

scrutiny. Additionally, Carter was deprived of her Fifth
Amendment right to due process. This was the first time the court
convicted someone of common law manslaughter under these
circumstances and without a statute expressly prohibiting the
speech. Thus, Carter was deprived of notice and convicted of an
arguably previously unrecognized crime. Even though we now
have this precedent, the standard is unworkable because it is
vague and overly broad. The court’s holding blurred the line
between free speech and criminal conduct. The Supreme Court
should take up a case like Carter to restore First Amendment
rights and set the record straight.

Victoria Lujan