Limiting Free Speech (47): Incitement to Commit Suicide

An interesting story in the press some time ago:

A former nurse from Faribault, Minn., was convicted of two felonies Tuesday when a judge ruled he had used “repeated and relentless” tactics during Internet chats that coaxed two people to kill themselves.

Rice County District Judge Thomas Neuville found that William Melchert-Dinkel, 48, “imminently incited” the suicides of Mark Drybrough of Coventry, England, and Nadia Kajouji of Ottawa, Ontario. Drybrough, 32, hanged himself in 2005, and Kajouji, 18, jumped into a frozen river in 2008.

In a 42-page ruling that found Melchert-Dinkel guilty of two counts of felony advising and encouraging suicide, Neuville wrote that it was particularly disturbing that Melchert-Dinkel, posing as a young, suicidal, female nurse, tried to persuade the victims to hang themselves while he watched via webcam….

Neuville, in rejecting the free-speech defense, noted that inciting people to commit suicide is considered “Lethal Advocacy,” which isn’t protected by the First Amendment because it goes against the government’s compelling interest in protecting the lives of vulnerable citizens. (source, source)

I guess that’s correct, even though the case doesn’t really fit with any of the commonly accepted exceptions to free speech rights. We’re not dealing here with incitement to murder or a death threat – standard exceptions to free speech, even in the U.S. And neither is it speech that incites illegal activity – another accepted exception. Suicide isn’t murder and isn’t illegal (anymore). Abstract and general advocacy of crime and violence is – or should be – protected speech, but not the advocacy or incitement of specific and imminent crime or violence if this advocacy or incitement helps to produce the crime or violence. If speech intends to produce specific illegal or violent actions, and if, as a result of this speech, these actions are imminent and likely, then we have a good reason to limit freedom of speech. Examples of such speech:

None of these forms of speech should be protected, and laws making them illegal are perfectly OK. On the other hand, claiming that all politicians deserve to die or that people shouldn’t pay their taxes are, in most cases, forms of protected speech because they probably do not incite or help to bring about imminent lawless activity.

The problem is that none of this is applicable here. Suicide isn’t illegal, and neither is it violence as we normally understand the word. So, the commonly accepted exception to free speech rights that I just cited can’t possibly justify the conviction of Melchert-Dinkel. He did of course advocate, incite and cheer on his victims, and his advocacy, incitement and cheering probably helped to produce their suicides. But a suicide is not a crime or an act of violence. At least not as such. One could argue that the encouragement of a suicidal person should be viewed as a form of murder. And if that statement goes too far for you, you may want to consider the fact that causing someone else’s death is in general a crime, whichever way you do it. Moreover, if the victims in this case were suffering from depression or a mental illness, the state has a duty to provide healthcare, and allowing someone else to worsen their depression or illness to the point that they kill themselves is not consistent with this duty.

So, while the encouragement of suicide in general, the teaching the methods of suicide or the claim that non-suicidal people should go and kill themselves (“you don’t deserve to live”, “why don’t you just go and kill yourself”) are all forms of protected speech, the same is not the case for speech that encourages specific suicidal people to kill themselves.

Limiting Free Speech (37): Incitement to Murder and Death Threats

Should a joke about killing the president be protected by the right to free speech and the First Amendment? Or a poll on Facebook asking if Obama should be assassinated? Or a rap song about “killing a cop”? Or do such things cross a line beyond which the government can intervene, can limit the freedom of speech of those involved, and can punish them for having committed a crime? I would say: it depends.

In US jurisdiction, the Brandenburg v. Ohio case stipulates that abstract advocacy of violence is protected speech under the First Amendment. However, it is equally acceptable, also according to Brandenburg v. Ohio, that speech which incites imminent, illegal conduct – including violence – may itself be made illegal:

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

So, advocacy of violence can only be prohibited when there is clear incitement of an imminent violent act, as well as the likelihood that this incitement produces or helps to produce such an act.

In the specific case of death threats, the Supreme Court case is Watts v. United States (1969). There it says that only true threats aren’t constitutionally protected; mere hyperbole, humor or offensive methods of stating political opposition are protected. What is a “true threat? According to Virginia v. Black (2003),

a statement can’t be a punishable threat unless it’s made “with the intent of placing the victim in fear of bodily harm or death.” Thus, following Black, a statement is a punishable threat only if a reasonable listener would understand it as a threat of attack and the speaker intended that the listener get that impression. (source)

Personally, I wouldn’t place too much weight on the second clause in that last sentence (after the “and”). I think it’s sufficient that the listener gets the impression of a threat and that the threat produces reasonable fear, even when the person stating the threat didn’t really mean it and was just joking (hence no real “intent”). So a joke about a bomb while on an airplane shouldn’t be protected, while a joke on the radio about killing the president should be protected, because the president or anyone else would probably not take it very seriously. The context of the threat is important. Even when there is clear intent and therefore not just a joke, but no likelihood of the threat being carried out, I would also propose to protect freedom of expression. The main focus is on the reaction of the reasonable recipient and the risk to which he or she is exposed (this focus contains a subjective and a factual element: perception/reaction and factual risk).