“Do You Know Where Your Brother Is?”[1]: Commonwealth v. Carter and “Pure Speech”

By: Ben Schroff

Smart phone with text message bubbles.
On July 13, 2014, police found Conrad Roy’s body in his truck in a parking lot. He died by suicide. Roy met Michelle Carter while both visited family in Florida in 2012; they discovered that they both lived in Massachusetts. The pair maintained a long-distance relationship, mainly through phone calls and text messages. Roy and Carter frequently discussed Roy’s mental illnesses, including his suicidal ideations. [2]  Roy attempted suicide many times between October 2012 and July 2014, and each time he would abandon the attempt and seek help. When Carter sought inpatient treatment for an eating disorder, she tried persuading Roy to join her. Roy refused. After her own treatment, Carter aided Roy’s preparations to die by suicide.[3]

The court record holds a cornucopia of text messages between the couple regarding Roy’s research on how to commit suicide and Carter’s suggestions. Carter also offered encouragement, promising to take care of Roy’s family and telling him that they would understand his decision to take his life.  Carter increasingly expressed her frustration with Roy, claiming that he had not followed through with his plans to seek help after his suicide attempts. In her vexation, she then asked Roy to promise that he would go through with his commit suicide attempt. [4]

In July 2014, Roy attempted suicide again. Midway, he changed his mind and asked Carter for help. Carter did not help him. She ordered Roy to return to the vehicle and die. Meanwhile, Carter was texting her friends, stating that she believed Roy was committing suicide.[5]  She even texted Roy’s sister to inquire “Do you know where your brother is?”

Carter was arrested and the trial court found her guilty and held that her command to Roy to get back into the truck constituted involuntary manslaughter. The Supreme Judicial Court of Massachusetts (SJC) affirmed the decision of the lower court, rejecting Carter’s claim that the First Amendment shielded her from a conviction based on “pure speech.”  Carter is currently set for release in May 2020, but that is not the end of her case. Carter has appealed to the Supreme Court to reexamine her First Amendment claim, again arguing that her conviction should not be based on her “pure speech.”[6]

First, Carter’s Petition for Certiorari asserts that the Supreme Judicial Court of Massachusetts misinterpreted the Court’s opinion in Giboney v. Empire Storage & Ice Co.[7]  Carter claims that the SJC misapplied Giboney by holding that Carter’s speech was “verbal conduct” that brought about Roy’s suicide. Carter argues that her words must have been integral to broader conduct “in violation of a valid criminal statute” for Giboney to apply.[8]

Second, Carter supports this argument by citing the Minnesota Supreme Court holding in State v. Melchert-Dinkel.[9]  However, in this case, the defendant that encouraged the third parties’ suicide posed as a young female nurse responding to posts on suicide websites.[10]  Carter was no stranger to Roy. The two were dating and frequently texted or talked on the phone.[11]  

Third, Carter explains that the SJC’s opinion is in conflict with other state supreme court decisions.[12]  These state supreme courts hold that involuntary manslaughter via “pure speech” is unconstitutional. However, these cases dealt with stalking over the Internet where people were interacting over forums, rather than having a close relationship with individuals.

Fourth, Carter argues that the SJC created a new category of speech: a “new ‘coerced suicide’ exception to the First Amendment.”[13]  Carter further argues that the SJC affirmed her conviction based only on her speech, rather than any action she took.   She argues this contradicts the holding of the  Supreme Court that disallows lower courts from creating new categories of speech “out of whole cloth.”[14] 

However, the SJC did not simply create a new category. The court recognized the coercive power of an individual’s speech when that person is close to someone with mental illness. Society’s understanding of mental health has greatly increased. Individuals facing severe depression often have one person who they cling to— normally a close friend or significant other. When the person affected by depression faces a suicidal episode, they will reach out to that person for help or to make their final goodbyes. In these critical moments, the confidant holds immense persuasive power over that individual. The confidant’s words of advice or commands are understood as explaining the best interest of the depressed individual. This gives the confidant an inordinate amount of power.

Carter’s power over Roy was demonstrated by the vast amount of text messages introduced at trial. The text messages from Roy showed his mental state:


“On July 12, 2014, between 4:25 A.M. and 4:34 A.M., they exchanged the following text messages:

DEFENDANT: ‘So I guess you aren’t gonna do it then, all that for nothing’

DEFENDANT: ‘I’m just confused like you were so ready and determined’

VICTIM: ‘I am gonna eventually’

VICTIM: ‘I really don’t know what I’m waiting for .. but I have everything lined up’

DEFENDANT: ‘No, you’re not, Conrad. Last night was it. You keep pushing it off and you say you’ll do it but u never do. Its always gonna be that way if u don’t take action’

DEFENDANT: ‘You’re just making it harder on yourself by pushing it off, you just have to do it’

DEFENDANT: ‘Do u wanna do it now?’

VICTIM: ‘Is it too late?’

VICTIM: ‘Idkk it’s already light outside’

VICTIM: ‘I’m gonna go back to sleep, love you I’ll text you tomorrow’

DEFENDANT: ‘No? Its probably the best time now because everyone’s sleeping. Just go somewhere in your truck. And no one’s really out right now because it’s an awkward time’

DEFENDANT: ‘If u don’t do it now you’re never gonna do it’

DEFENDANT: ‘And u can say you’ll do it tomorrow but you probably won’t’”[15]

Carter’s words and Roy’s compliance showed that Carter was Roy’s closest confidant.

Finally, Carter argues that the SJC common law of involuntary manslaughter cannot survive strict scrutiny when it comes to assisted or encouraged suicide.[16]  Regulations of speech are valid under the First Amendment through an application of strict scrutiny. There must be a compelling interest, the regulation must be narrowly tailored to meet that interest, and it must also be the least restrictive means possible to achieve the interest.[17]  The government has a compelling interest in the continued survival of its citizens. This can be seen in national security, criminal statutes, and health law. In the Carter case, the compelling government interest in its citizens’ lives was narrowly tailored to a defendant who was in constant contact with the victim, knew about the victim’s mental health problems, and still coerced the victim to complete his suicide attempt. Preventing speech that encourages a particular person’s suicide is also the least restrictive means. Carter’s relationship with Roy included constant communication. Roy’s mental health was a consistent topic of conversation, especially Roy’s suicidal ideations.

Whether the Supreme Court grants certiorari to Carter or not, it is important that the law adapts with our current understanding of mental health. The manipulation of individuals to take their own lives cannot become common practice, especially when the individual doing the manipulation is the closest confidant of the person affected by mental health problems.


[1] Commonwealth v. Carter, 115 N.E.3d 559, 565 Footnote 7 (Mass. 2019).

[2] See id. at 562.

[3] See id. at 563.

[4] See id. at 563-64.

[5] Id. at 565.

[6] Petition for Cert. at i.

[7] Id. at 10

[8] Id. (quoting Giboney v. Empire Storage & Ice Co.)

[9] Id. at 11-13 (citing State v. Melchert-Dinkel, 844 N.W.2d 13 (Minn. 2014)).

[10] Id. at 11 (citing Melchert-Dinkel, 844 N.W.2d at 16-17).

[11] Commonwealth v. Carter, 115 N.E.3d 559, 562 (Mass. 2019).

[12] Petition for Cert. at 13.

[13] Id. at 20.

[14] Id. (citing Pickup, 740 F.3d at 1221 (O’Scannlain, J., dissenting)).

[15] Commonwealth v. Carter, 115 N.E.3d 559, 565 Footnote 5 (Mass. 2019).

[16] Petition for Cert. at 22.

[17] See Reed v. Town of Gilbert, AZ, 135 S. Ct. 2218, 2231 (2015); Citizens United v. FEC, 558 U.S. 310, 340 (2010).