'Homicide by words' hypothetical - First Amendment and jurisdictional questions

Question

This hypothetical is based on the ongoing prosecution of Mandie Reusch.

Mr Y lives in Nevada, and Ms X lives in Wyoming. Ms X also suffers from depression and PTSD. They still speak to each other, and they have joint custody of their children.

Mr Y is the ex-partner of Ms X. Over the last few months since their breakup, which was caused by Mr Y's infidelity, Mr Y continues to have many arguments with his ex. Consequently, Mr Y sends Ms X messages of similar nature to those of Mandie Reusch's for a couple of weeks.

One day, Ms X decides to fly to California. On the same day, Mr Y is flying back home from New Jersey. They both fly on private jets. The previous night, they had an extremely heated and personal altercation on the phone.

Whilst Mr Y is in the air on his flight back, he once again sends many of these messages to Ms X, who is, at this point, still in Nevada, driving to the airfield. But she sees these messages, and this is around the point where her suicidal thoughts begin to be more active than passive.

During her flight, Ms X receives more of those extremely mean-spirited messages from Mr Y (in which he uses secrets that she trusted him with against her, explains how he told others about her secrets and so on). Mr Y sends these messages while his flight is still in New Jersey airspace. After everything that's happened, Ms X considers it too much to bear, and she takes her own life during her flight. When she does this, she is exactly over the border between Wyoming and Nebraska.

In none of the messages does Mr Y explicitly tell or direct Ms X to end her own life.

I have two questions:

1. With these facts, assuming Mr Y was charged with involuntary manslaughter (like in MA v. Carter) or aiding a suicide, based solely or almost solely on the messages, under which jurisdiction would he be charged?

2. Is Mr Y's speech in this case protected by the First Amendment?

Thank you for your answers.

Answer 1

1. With these facts, assuming Mr Y was charged with involuntary manslaughter (like in MA v. Carter) or aiding a suicide, based solely or almost solely on the messages, under which jurisdiction would he be charged?

Applicable Law

States have jurisdiction both over crimes that are committed in the state and over crimes that cause harm in a state.

The classic law school example is a murder committed by shooting someone with a gun across a state line. Both the state where the gun is fired and the state where the person is shot have jurisdiction over the crime.

Jurisdiction generally requires a purposeful act directed at someone or something in the state where the harm is suffered in most cases. But that isn't a hard and fast rule of constitutional law in other contexts, and there are few cases on point. I would consider this to be an open question.

Certainly, however, the mere fact that the victim of a crime is transported to another state for medical treatment, where that victim then dies from causes relate to the crime, does not give the state where the death ultimately occurs in the hospital jurisdiction over the offense.

Double Jeopardy

Indeed, the constitutional protection against double jeopardy does not prohibit both states from independently convicting and punishing the same defendant for the same crime in this situation under the "dual sovereignty" doctrine. As background, the Colorado Supreme Court decided a dual sovereignty double jeopardy case today.

Application To Facts

(The application to the facts has been revised upon closer examination of them.)

The line about "Ms X, who is, at this point, still in Nevada," is confusing because she was in California before and isn't described as ever being in Nevada. I presume that "still in California" was really meant.

Mr. Y could be charged (at least) in Nevada or New Jersey from which the continuing course of communications was sent (undue emphasis on the final communication is probably inappropriate), and Wyoming, to which the bulk of the communications were directed and where the bulk of the harm was suffered.

California and Nebraska do not seem to be places to which the communications were really directed or where the greatest harm was suffered. Momentary presence in Nebraska air space is probably insufficient.

There are also a set of statutes that specifically address crimes committed during an airplane flight (see also here) that has been discussed in other answers at this website. To the extent that this is treated as a homicide committed while in flight, 49 USC § 46506, might also allow for a federal criminal prosecution.

I'm not sure that this is really a crime committed in flight, however, as it involved a course of conduct. A single email or a single moment of death doesn't really capture it. It is more analogous to a poisoning taking place in many doses over a period of time.

2. Is Mr Y's speech in this case protected by the First Amendment?

No. First Amendment considerations do apply to crimes involving communications between people that are not false, but if there is sufficient intent to cause suicide or other harm, the First Amendment yields to other considerations. The freedom of speech is not absolute. The exact place that the line is drawn is a matter of ongoing litigation.

This specific issue is explored in depth in Clay Calvert, "The First Amendment and Speech Urging Suicide: Lessons from the Case of Michelle Carter and the Need to Expand Brandenburg Application" 94 Tulane Law Review 79 (November 2019).

This article is responsive to that case of Commonwealth v. Carter, 115 N.E.3d 559 (Mass. 2019). The article explains in its introduction that:

In February 2019, the Massachusetts Supreme Judicial Court in Commonwealth v. Carter' affirmed Michelle Carter's conviction for involuntary manslaughter as a youthful offender based on her urging Conrad Roy to commit suicide.' In doing so, the court rejected Carter's claim that her conviction violated her First Amendment' right of free speech. Specifically, it reasoned that Carter's words with Roy immediately before and while he died were "integral to a course of criminal conduct and thus [did] not raise any constitutional problem."

In brief, Massachusetts's high court concluded that Carter's speech caused Roy's death' and that the First Amendment provided her no refuge.'