She Seems Nice…

This article represents a prime example of why one should not rely on journalists to explain legal issues.

Michelle Carter, girlfriend from hell

Michelle Carter rejected her ex-boyfriend’s grandstanding. He threatened suicide and she gave him advice and encouragement. He took it and succeeded in committing suicide. A District Attorney in Massachusetts prosecuted her for Manslaughter and won.

Carter has lost appeals at both the State and Federal levels. She contended that she was exercising free speech and should not have been convicted. The good news is that she has almost completed her sentence and will be available for dating in a couple of months.

Everybody has heard the saying that you can’t yell fire in a crowded theater. Supreme Court Justice Oliver Wendell Holmes came up with that in 1919. Here is a picture of Justice Holmes and a link to his famous decision.

Justice Oliver Wendell Holmes

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic … The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Oliver Wendell Holmes, Schenck V United States

Exercising free speech is not without consequences. Many an ass kicking has commenced behind a comment that caused offense. I’m not an attorney and I didn’t stay at a Holiday Inn Express. So take or leave my comments about Holmes’ fire and theater comment as you will.

The first requirement is a direct cause and effect. Second, the response is based entirely upon the stimulus. One moment people are enjoying the show and in the next they are a screaming mob heading for the exits. There is only one cause, the shout of fire.

Ah, but boyfriend was inclined towards suicide. He threatened it in the past. This is akin to the guy on the ledge and the crowd below yelling jump. Except it isn’t.

The guy is on the ledge, threatening suicide. Check. The crowd shouts encouragement. Check. The stimulus, “Jump” is neither here nor there. The guy had an agenda going in. Prove that shouts of the crowd are his deciding factor. It can’t be done, the guy who can answer that is no longer available to answer questions.

What Changed?

What Ben Franklin said in 1735 holds true today. What has changed is technology.

The problem that prosecutors face is to prove beyond a “reasonable doubt” that the cause and effect are directly related. That is, that one wouldn’t have happened without the other.

Many a murder has been accomplished after a variation of: “I’m gonna kill you!” was uttered before witnesses. The rapidly cooling corpse is proof of the statement. I’ve never heard a defendant claim a free speech right, in making the threat.

Abbie Hoffman and the Chicago Seven stirring up a crowd of like minded individuals in Chicago in 1968 were found innocent of sparking a riot. The crowd was inclined that way in the first place. There was no way to demonstrate that anything the Chicago Seven said pushed the rioters over the top.

Where Michelle Carter screwed up is she embraced technology. By texting back and forth, she ignored Benjamin Franklin’s advice. Yeah, she got rid of boyfriend. But she left a written record of her interaction with the dearly departed. A blow by blow record was contained in their texts, right up until the time he did the deed. She has only her thumbs to blame.

It pains me to say this because I believe authorities in Massachusetts are fascist by inclination and on-board with stifling free speech. In this case, the District Attorney was right. There is a perfectly good reason why the Supreme Court rejected Carter’s appeal. Justice Holmes settled the matter almost 100 years ago.