Respondents Brief — Michelle Carter, Petitioner v. Massachusetts

No. 19-62

In the Supreme Court of the United States

_______________

MICHELLE CARTER,

Petitioner,

v.

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE MASSACHUSETTS SUPREME JUDICIAL COURT

_______________

BRIEF IN OPPOSITION

_______________

MAURA HEALEY

Attorney General for the

Commonwealth of Massachusetts

ELIZABETH N. DEWAR*

State Solicitor

MARIA GRANIK

Assistant Attorney General

One Ashburton Place

Boston, MA 02108

bessie.dewar@mass.gov

(617) 963-2204

*Counsel of Record

i

QUESTIONS PRESENTED

1. Whether the First Amendment permits petitioner’s conviction for involuntary manslaughter,

based on wanton or reckless conduct that caused the

victim’s suicide, because the speech at issue was integral to criminal conduct.

2. Whether petitioner’s conviction for involuntary

manslaughter comports with the requirement of the

Due Process Clause of the Fifth Amendment that the

law not be so vague as to encourage arbitrary and discriminatory enforcement, where petitioner no longer

contests that Massachusetts’ common law of involuntary manslaughter gave sufficient notice that her conduct was prohibited.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED......................................... i

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ........................................................ 1

STATEMENT .............................................................. 1

REASONS TO DENY THE WRIT .............................. 7

I.

The Petition Does Not Present a Split of

Authority Warranting the Court’s

Consideration. ....................................................... 7

A. The Claimed Shallow Split Regarding

Speech Integral to Criminal Conduct Is

Illusory. ........................................................... 7

B. The Petition Does Not Identify a Split

Regarding the Fact-Bound Due Process

Question. ....................................................... 12

II. The Decision Below Is Correct. ........................... 13

A. Petitioner’s Conviction for Involuntary

Manslaughter Does Not Violate the

First Amendment.......................................... 14

B. Massachusetts’ Common Law of

Involuntary Manslaughter Is Not

Unconstitutionally Vague as Applied to

Petitioner. ..................................................... 18

CONCLUSION .......................................................... 22

iii

TABLE OF AUTHORITIES

Page

Cases

Broadrick v. Oklahoma,

413 U.S. 601 (1973) .......................................... 22

Brown v. Entm’t Merchs. Ass’n,

564 U.S. 786 (2011) .......................................... 16

Cantwell v. Connecticut,

310 U.S. 296 (1940) .......................................... 22

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942) .......................................... 14

Commonwealth v. Askew,

404 Mass. 532 (1989) ....................................... 19

Commonwealth v. Atencio,

345 Mass. 627 (1963) ....................................... 19

Commonwealth v. Bowen,

13 Mass. 356 (1816) ......................................... 20

Commonwealth v. Campbell,

352 Mass. 387 (1967) ....................................... 19

Commonwealth v. Carlson,

447 Mass. 79 (2006) ......................................... 19

Commonwealth v. Godin,

374 Mass. 120 (1977) ................................... 9, 14

Commonwealth v. Welansky,

316 Mass. 383 (1944) ....................................... 19

Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949) .................................. 6, 8, 10

Hamdan v. Rumsfeld,

548 U.S. 557 (2006) .......................................... 18

iv

Page

Johnson v. United States,

135 S. Ct. 2551 (2015) ...................................... 21

Kolender v. Lawson,

461 U.S. 352 (1983) .................................... 20, 21

Marinello v. United States,

138 S. Ct. 1101 (2018) ...................................... 20

McDonnell v. United States,

136 S. Ct. 2355 (2016) ...................................... 21

N.M. v. Commonwealth,

478 Mass. 89 (2017) ........................................... 3

People v. Relerford,

104 N.E.3d 341 (Ill. 2017) .......................... 11, 12

Persampieri v. Commonwealth,

343 Mass. 19 (1961) ......................................... 19

R.A.V. v. City of St. Paul, Minnesota,

505 U.S. 377 (1992) ......................................... 16

Rogers v. Tennessee,

532 U.S. 451 (2001) .......................................... 17

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ...................................... 21

Smith v. Goguen,

415 U.S. 566 (1974) .......................................... 20

State v. Melchert-Dinkel,

844 N.W.2d 13 (Minn. 2014).................... passim

State v. Melchert-Dinkel,

No. A15-0073, 2015 WL 9437531

(Minn. Ct. App. Dec. 28, 2015) .......................... 8

v

Page

State v. Shackelford,

825 S.E.2d 689 (N.C. Ct. App. 2019) ......... 11, 12

United States v. Alvarez,

567 U.S. 709 (2012) .......................................... 16

United States v. Osinger,

753 F.3d 939 (9th Cir. 2014) ............................ 12

United States v. Stevens,

559 U.S. 460 (2010) .................................. passim

Wood v. Allen,

558 U.S. 290 (2010) .......................................... 10

Yee v. Escondido,

503 U.S. 519 (1992) .......................................... 10

Constitutional Provisions

U.S. Const. amend. V.................................... passim

U.S. Const. amend. I ..................................... passim

Statutes and Rules

U.S. Sup. Ct. R. 10 ........................................ 1, 7, 13

Mass. Gen. Laws ch.119, § 54 ................................ 3

Mass. Gen. Laws ch. 119, § 55A ............................. 4

Mass. R. Crim. P. 26 ............................................... 4

Mass. Super. Ct. R. 70 ............................................ 4

Minn. Stat. § 609.215.......................................... 8, 9

Other Authorities

Neil M. Gorsuch, The Future of Assisted

Suicide and Euthanasia (2009) ....................... 10

1

INTRODUCTION

This petition should be denied because neither of

the two questions presented satisfies the Court’s criteria under Rule 10. First, with respect to this Court’s

longstanding recognition that speech integral to crime

is not protected by the First Amendment, petitioner

claims a square split with only one other state court,

and the alleged conflict is illusory. The Massachusetts

and Minnesota courts both recognized and applied the

same doctrine, and they appropriately distinguished

between the circumstances here—prosecution of a

common-law offense that is defined by reference to a

defendant’s conduct, not speech—and the very different circumstances presented by a statute specifically

targeting and criminalizing speech concerning suicide.

Second, petitioner does not even attempt to claim a

split of authority on the fact-bound question whether

Massachusetts’ common law of involuntary manslaughter was unconstitutionally vague as applied to

her; she no longer contests that she herself had sufficient notice that her conduct was prohibited; and the

decision below does not conflict with this Court’s precedent regarding the necessity of adequate guidance for

law enforcement.

STATEMENT

1. Petitioner was found guilty in Massachusetts Juvenile Court for the involuntary manslaughter of Conrad Roy, III. Pet. App. 41a. Having spent weeks exhorting Roy to kill himself, petitioner was on the

phone with Roy for more than 80 minutes during the

evening of his death by suicide; heard his labored

2

breathing as he asphyxiated himself with carbon monoxide in his truck; and ordered Roy to get back into the

fume-filled truck when he stepped out. Pet. App. 6a10a.

The record includes “voluminous” text messages

between petitioner and Roy. Pet. App. 3a n.2. As the

Supreme Judicial Court (SJC) below described, petitioner carried out a “systematic campaign of coercion”

that “targeted the equivocating young victim’s insecurities and acted to subvert his willpower in favor of her

own” in the last weeks of his life. Pet. App. 62a. Petitioner exchanged many messages with Roy discussing

the method he chose to kill himself, namely, carbon

monoxide poisoning in his enclosed truck. See, e.g.,

Pet. App. 4a n.3, 49a-50a n.6. She knew Roy had previously attempted suicide but had abandoned or foiled

his own attempts, and she taunted him that he would

purposely fail in killing himself again. Pet. App. 6a;

see, e.g., Pet. App. 7a n.5. And she repeatedly urged

him that he “just [had] to do it” and that “the time

[was] right,” and berated him “for his indecision and

delay.” Pet. App. 4a-5a n.4, 6a; see, e.g., Pet. App. 4a5a n.4, 6a-7a n.5, 45a-50a nn.3-6 (collecting text messages).

Ultimately, Roy obtained a gasoline-powered water

pump to generate carbon monoxide. Pet. App. 8a. On

the evening of July 12, 2014, he “drove his truck to a

local store’s parking lot and started the pump.” Pet.

App. 9a. “While the pump was operating, filling the

truck with carbon monoxide,” petitioner and Roy were

in contact by phone. Id. Cell phone records show that

they were on the phone for two calls, each spanning

more than 40 minutes: one from Roy to petitioner at

6:28 P.M., and the other from petitioner to Roy at 7:12

3

P.M. Pet. App. 9a, 50a n.7. The same evening, petitioner told two friends by text that she thought Roy

had killed himself, and she described being on the

phone with Roy. Pet. App. 9a. At 8:02 P.M., she wrote

to a friend: “he just called me and there was a loud

noise like a motor and I heard moaning like someone

was in pain, and he wouldn’t answer when I said his

name. I stayed on the phone for like 20 minutes and

that’s all I heard.” Id.

On the afternoon of the next day, July 13, 2014, a

police officer found Roy’s body in his truck parked in

the store parking lot. Pet. App. 44a. “He had committed suicide by inhaling carbon monoxide that was produced by a gasoline powered water pump located in

the truck.” Pet. App. 3a.

Later, on September 15, 2014, petitioner wrote to a

friend that, while she was on the phone with Roy on

the evening of his suicide, he stepped out of the truck

because he became frightened as the pump was filling

the cabin with carbon monoxide, and petitioner ordered him back into the truck. Pet. App. 10a (he “got

out of the car because it was working and he got scared

and I fucking told him to get back in”). Petitioner also

wrote to the friend that petitioner “was talking to him

on the phone when he did it” and “could have easily

stopped him or called the police but [she] didn’t.” Pet.

App. 51a.

2. A Bristol County grand jury indicted petitioner

as a youthful offender on a charge of involuntary manslaughter, under Mass. Gen. Laws ch. 119, § 54, on

February 6, 2015. Pet. App. 43a (noting that petitioner was 17 years old at the time of Roy’s death at

age 18); see also N.M. v. Commonwealth, 478 Mass. 89,

4

91 n.5 (2017) (explaining youthful-offender status under Massachusetts law). After the Juvenile Court denied petitioner’s motion to dismiss the indictment, petitioner sought and obtained interlocutory review at

the SJC. Pet. App. 52a. The SJC found that the Commonwealth had presented sufficient evidence to the

grand jury “to support a finding of probable cause that

the defendant’s conduct (1) was intentional; (2) was

wanton or reckless; and (3) caused the victim’s death.”

Pet. App. 56a (footnote omitted). The SJC also rejected due process and First Amendment challenges to

the indictment that petitioner had advanced. Pet.

App. 55a n.11, 62a n.17. Ultimately, the SJC “conclude[d] that there was probable cause to show that

the coercive quality of the defendant’s verbal conduct

overwhelmed whatever willpower the eighteen year

old victim had to cope with his depression, and that

but for the defendant’s admonishments, pressure, and

instructions, the victim would not have gotten back

into the truck and poisoned himself to death.” Pet.

App. 61a.

3. Petitioner was convicted of involuntary manslaughter after a jury-waived trial. Pet. App. 2a. The

trial court, sitting as factfinder, believed “some explanation of [the] verdict” was “warranted” and gave an

oral statement that the court cautioned “should not be

construed as a complete explanation” of its findings of

fact and conclusions of law. Pet. App. 31a; see also id.

(noting written findings not required in the absence of

a request); Mass. Gen. Laws ch. 119, § 55A; Mass. R.

Crim. P. 26; Mass. Super. Ct. R. 70. The court found

that the Commonwealth had proven beyond a reasonable doubt that petitioner’s communications to Roy between June 30 and July 12 “constituted wanton and

reckless conduct by her.” Pet. App. 31a-32a. The court

5

further found that the Commonwealth had proven beyond a reasonable doubt that petitioner caused Roy’s

death, based specifically on the evidence that petitioner instructed Roy to get back in the truck after he

got out seeking air (an action by Roy consistent with

his past averted suicide attempts), as well as her failure to take any of the readily available measures to

prevent his death after she instructed him to get back

into the truck. Pet. App. 34a-36a.

The trial court sentenced petitioner to two and a

half years in jail, with 15 months to be served and the

balance suspended, and five years of probation. See

Commonwealth v. Carter, SJC-12502, Doc. No. 21

(Mass. Feb. 11, 2019) (denying motion for stay of sentence pending this petition).

4. The SJC affirmed petitioner’s conviction on appeal. Pet. App. 2a. The court began by rejecting petitioner’s sufficiency challenge. Id. Noting that there

was “no question in this case that the Commonwealth

proved beyond a reasonable doubt that the defendant

engaged in wanton or reckless conduct,” Pet. App. 15a

n.9, the court upheld the trial court’s conclusion with

respect to causation: petitioner’s instruction to Roy to

get back into the truck “overpowered the victim’s will

and thus caused his death,” and “she did absolutely

nothing to help him” after he followed her instruction.

Pet. App. 16a-17a.

The SJC also rejected petitioner’s renewed First

Amendment and due process challenges. Pet. App.

18a-25a. The SJC reaffirmed its earlier conclusion

that no First Amendment violation “results from convicting a defendant of involuntary manslaughter for

reckless and wanton, pressuring text messages and

phone calls, preying upon well-known weaknesses,

6

fears, anxieties, and promises, that finally overcame

the willpower to live of a mentally ill, vulnerable,

young person, thereby coercing him to commit suicide.” Pet. App. 20a-21a. Petitioner’s “systematic

campaign of coercion” was “speech integral to [a course

of] criminal conduct,” long understood to be exempt

from First Amendment protections. Pet. App. 23a

(quoting United States v. Stevens, 559 U.S. 460, 468

(2010) (citing Giboney v. Empire Storage & Ice Co., 336

U.S. 490, 498 (1949))). The court further concluded, in

the alternative, that even if the restriction on petitioner’s conduct in this case were viewed as reaching

protected speech and subject to strict scrutiny, the

prohibition of “the wanton or reckless pressuring of a

person to commit suicide that overpowers that person’s will to live” would survive such scrutiny, as the

prohibition was narrowly tailored “to further the Commonwealth’s compelling interest in preserving life.”

Pet. App. 25a.

The SJC also reaffirmed its conclusion from the

grand-jury appeal that the law of involuntary manslaughter is not unconstitutionally vague as applied to

petitioner’s conduct. Pet. App. 18a. Rather, the court

found, petitioner’s actions constituted wanton or reckless conduct causing the victim’s death, thus satisfying the elements of involuntary manslaughter as long

defined by Massachusetts case law. Id. The court also

noted that prior Massachusetts cases dating back centuries had made clear “that a person might be charged

with involuntary manslaughter for reckless or wanton

conduct, including verbal conduct, causing a victim to

commit suicide.” Pet. App. 19a-20a (collecting cases).

7

REASONS TO DENY THE WRIT

I. The Petition Does Not Present a Split of Authority Warranting the Court’s Consideration.

The petition’s alleged conflict on the First Amendment question is illusory, and petitioner does not even

attempt to argue that the lower courts are divided on

the fact-bound due process question. This Court’s review is therefore unwarranted. See Sup. Ct. R. 10.

A. The Claimed Shallow Split Regarding

Speech Integral to Criminal Conduct Is Illusory.

The petition presents no actual conflict regarding

the “long-established” exception to the First Amendment’s protections for “speech integral to criminal conduct.” Stevens, 559 U.S. at 468, 471. In the sole case

petitioner identifies to allege a “direct conflict,” Pet. 8,

the Supreme Court of Minnesota recognized this exception but found that it did not apply in the very different case presented to it, which concerned a statute

that prohibited advising, encouraging, or assisting another’s suicide. See State v. Melchert-Dinkel, 844

N.W.2d 13 (Minn. 2014). That statute has no analogue in Massachusetts, and the Minnesota court’s

reasoning is inapposite in the context of petitioner’s

common-law involuntary manslaughter conviction.

The petition’s further resort to cases regarding stalking statutes is likewise unavailing.

Melchert-Dinkel struck down in part a Minnesota

statute that criminalized speech based on its content.

The law at issue prohibited “intentionally [1] advis[ing], [2] encourag[ing], or [3] assist[ing] another in

8

taking the other’s own life.” 844 N.W.2d at 19 (quoting

Minn. Stat. § 609.215). As part of its analysis, the

court rejected the State’s argument that speech

reached by the statute fell within the First Amendment’s exception for speech integral to criminal conduct: suicide was not illegal in Minnesota, and the exception has never been held to extend to “speech that

is integral to merely harmful conduct, as opposed to

illegal conduct.” Id. at 20 (discussing Giboney, 336

U.S. at 498). The court then upheld under strict scrutiny the statute’s prohibition on assisting suicide, because it was “narrowly drawn to serve the State’s compelling interest in preserving human life,” but struck

down the advising and encouraging prongs as insufficiently narrowly tailored. Id. at 22-24. 1

There is no doctrinal split between Melchert-Dinkel

and the decision below upholding petitioner’s involuntary manslaughter conviction. The Minnesota court

recognized that the First Amendment does not protect

speech integral to criminal conduct but declined to apply the exception there to insulate from any scrutiny

under the First Amendment a statute that restricted

speech based on its content. 844 N.W.2d at 18-20

1 Following a remand to the trial court and second appeal,

Minnesota’s intermediate appellate court ultimately upheld

Melchert-Dinkel’s conviction under the “assisting” suicide prong

with respect to one death where Melchert-Dinkel had provided

instructions to the decedent that the decedent had apparently followed in committing suicide. State v. Melchert-Dinkel, No. A150073, 2015 WL 9437531, at *5-*9 (Minn. Ct. App. Dec. 28, 2015)

(unpublished decision). The court reversed a second conviction

arising from a different death in which the court found MelchertDinkel had given the decedent mere encouragement and advice

not rising to the level of assistance under the statute as construed

by the Minnesota Supreme Court. Id. at *9-*11.

9

(identifying the statute as “content-based” and calling

the State’s analysis “circular,” because it would “effectively uphold[] the statute on the ground that the

speech prohibited by section 609.215 is an integral

part of a violation of section 609.215”). No such circularity exists here, where, by contrast, petitioner’s

speech was integral to her commission of a longstanding common-law crime—involuntary manslaughter—

that “makes no reference to restricting or regulating

speech, let alone speech of a particular content or

viewpoint”; rather, “the crime is directed at a course of

conduct,” and “the conduct it proscribes is not necessarily associated with speech.” Pet. App. 21a. In particular, petitioner was convicted for causing the death

of another through wanton or reckless conduct, with

“wanton or reckless” defined in Massachusetts not by

the content of a defendant’s speech, but rather the nature of her conduct: conduct “involv[ing] a high degree

of likelihood that substantial harm will result to another.” Commonwealth v. Godin, 374 Mass. 120, 129

(1977) (quotation omitted); accord Pet. App. 15a n.9.

The decision below therefore represents a straightforward application of the exception, rather than requiring “an expansion,” Melchert-Dinkel, 844 N.W.2d at

20.

Nor are the decisions inconsistent in their respective strict scrutiny analyses—an issue and alternative

basis for affirmance below that is discussed in the petition but arguably not fairly included in the questions

presented. 2 Most fundamentally, Melchert-Dinkel and

2 The petition’s first question asks “[w]hether Carter’s convic-

tion for involuntary manslaughter, based on words alone, violated the Free Speech Clause of the First Amendment, because

10

the SJC’s decision are not at odds for the simple reason that they arise from distinct legal and factual contexts. As petitioner acknowledges, Pet. 27, Massachusetts is not among the dozens of states that have statutes criminalizing conduct that assists another’s suicide. See generally Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia 43-44 & nn.186, 192

(2009) (surveying such statutes and acknowledging

Massachusetts as among the “few” states without

one). Accordingly, no Massachusetts court has addressed the narrow-tailoring questions presented by

such statutes.

Moreover, insofar as one can nevertheless compare

the Minnesota and Massachusetts courts’ strict scrutiny analyses, they are not inconsistent. Melcherther communications, which were found to have caused Roy’s suicide, did not constitute speech that was ‘an integral part of conduct in violation of a valid criminal statute[.]’” Pet. i (quoting

Giboney, 336 U.S. at 498). The question whether petitioner’s

speech lacked protection because it was integral to committing

involuntary manslaughter is distinct from the additional questions whether the underlying common-law criminal prohibition

survives or is even subject to strict scrutiny, see Pet. 22-23. These

latter questions are thus arguably only “related to,” but not included in, the question presented as framed by petitioner, and

therefore not before the Court. Yee v. Escondido, 503 U.S. 519,

537 (1992); see also Wood v. Allen, 558 U.S. 290, 304-05 (2010)

(whether counsel’s strategic decision was reasonable was not

fairly included in the question whether counsel had made a strategic decision). And if the strict-scrutiny issues are not before the

Court, the SJC’s alternative ruling below—that Massachusetts’

common-law prohibition on involuntary manslaughter as applied

in the circumstances of this case meets strict scrutiny, see Pet.

App. 24a-25a—would preclude petitioner from obtaining meaningful relief even if she were to prevail in her contention that her

speech was not unprotected under Giboney.

11

Dinkel upheld Minnesota’s assisting suicide prohibition as narrowly tailored to serve “the State’s compelling interest in preserving human life,” but struck

down the advising and encouraging prohibitions because they restricted speech merely “support[ing] or

rall[ying] courage,” without “a direct, causal connection to a suicide.” 844 N.W.2d at 21-23. The court

concluded that Minnesota could constitutionally proscribe “assist[ing]” suicide in the form of speech “targeted at a specific individual” that did have “a direct,

causal connection to a suicide.” Id. at 23. The SJC

cited Melchert-Dinkel for this very point in the grandjury appeal. Pet. App. 62a n.17. And, in the post-conviction appeal, in alternatively holding that the law of

involuntary manslaughter as applied here would survive strict scrutiny because it was “necessary to further the Commonwealth’s compelling interest in preserving life,” the SJC similarly emphasized how the

required causation element—that the defendant’s

wanton or reckless conduct actually caused the victim’s death—narrowed the law’s reach. Pet. App. 25a

(“[o]nly the wanton or reckless pressuring of a person

to commit suicide that overpowers that person’s will to

live has been proscribed”). Thus, no meaningful division exists between the courts’ analyses of the distinct

circumstances presented in each case.

Finally, petitioner’s references to two cases striking down stalking convictions also do not limn a split

regarding speech integral to criminal conduct. See

Pet. 13-17 (discussing State v. Shackelford, 825 S.E.2d

689 (N.C. Ct. App. 2019), and People v. Relerford, 104

N.E.3d 341 (Ill. 2017)). In both cases, concerning “virtually identical” statutes, the courts declined to find

the defendants’ speech to be integral to criminal conduct and therefore wholly unprotected, because the

12

statutes suffered from the same circularity defect

identified in Melchert-Dinkel: they defined stalking as

a course of conduct consisting of two or more communications to or about a person, with no requirement

that the communications be in furtherance of an unlawful purpose. Shackelford, 825 S.E.2d at 697-98;

Relerford, 104 N.E.3d at 352. By contrast, as the Illinois Supreme Court recognized, “speech is ‘fully outside’” the First Amendment’s protection “when it is a

mechanism or instrumentality in the commission of a

separate unlawful act.” 104 N.E.3d at 352 (quoting

Stevens, 559 U.S. at 471, and rejecting the State’s reliance on cases including United States v. Osinger, 753

F.3d 939 (9th Cir. 2014) (upholding federal stalking

statute against facial challenge because statute required malicious intent and harm to the victim)). As

discussed, involuntary manslaughter is indeed such

an unlawful act, defined not by the content of a defendant’s speech but instead by the high degree of risk involved in the intentional conduct that causes the victim’s death. The stalking cases, too, are therefore not

inconsistent with the decision below.

In sum, the petition does not identify a split of authority on the First Amendment question presented.

To the extent the increasing availability of evidence of

common-law crimes in the form of defendants’ own

electronic communications raises distinct First

Amendment concerns, those questions warrant further percolation.

B. The Petition Does Not Identify a Split Regarding the Fact-Bound Due Process

Question.

The petition does not attempt to allege a conflict

among lower courts on the second question presented.

13

See Pet. 24-38. Instead, petitioner’s contention appears to be that the SJC departed from this Court’s

due process jurisprudence because, in the SJC’s discussion of the Massachusetts common-law precedent

for petitioner’s prosecution, the SJC “[f]ocus[ed] on”

whether petitioner had adequate notice that her conduct was prohibited, but did not expressly state that

Massachusetts law enforcement officers also had constitutionally adequate guidance under the same precedent. Pet. 29-30 (discussing Pet. App. 18a-20a). And

petitioner does not ask this Court to review the SJC’s

conclusion that she herself did have adequate notice.

Pet. i; see also Pet. 24, 29-30. This request for factbound review—of whether, with respect to the conduct

proven here, Massachusetts’ common law of involuntary manslaughter gave sufficient guidance to Massachusetts law enforcement, where petitioner does not

contest that it did give sufficient notice to her—does

not satisfy this Court’s Rule 10(c). Moreover, for the

reasons discussed below, no such departure from the

Court’s precedent occurred. See pp. 18-22, infra. The

petition’s second question presented therefore also

does not warrant this Court’s review.

II.

The Decision Below Is Correct.

This Court’s review is unwarranted not only because the petition does not meet Rule 10’s standards,

but also because the decision below correctly resolved

the highly fact-specific issues pressed in the petition.

First, the SJC correctly concluded that petitioner’s

speech was unprotected because it was integral to the

commission of involuntary manslaughter, and, in the

alternative, that even if the speech were protected,

Massachusetts’ prohibition of involuntary manslaughter as applied to the facts of this case satisfied strict

14

scrutiny. Second, the SJC correctly rejected petitioner’s due process challenge, because Massachusetts’ longstanding common law of involuntary manslaughter gave both adequate notice to petitioner and

sufficient guidance to law enforcement.

A. Petitioner’s Conviction for Involuntary

Manslaughter Does Not Violate the First

Amendment.

This Court has identified “speech integral to criminal conduct” as among the “‘well-defined and narrowly limited classes of speech, the prevention and

punishment of which have never been thought to raise

any Constitutional problem[.]’” Stevens, 559 U.S. at

468-69 (quoting Chaplinsky v. New Hampshire, 315

U.S. 568, 571-72 (1942)). Inasmuch as petitioner’s

wanton or reckless conduct causing Roy’s death was

carried out by speech, that speech was therefore unprotected because it was integral to the commission of

involuntary manslaughter.

Petitioner was convicted of involuntary manslaughter under Massachusetts law: “an unlawful

homicide unintentionally caused by an act which constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless

conduct.” Godin, 374 Mass. at 126 (quotation omitted). While the offense does not require proving that

the defendant intended to cause the death, the defendant’s conduct that caused the death must be intentional and must be wanton or reckless. See id. at 129

(“The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial

harm will result to another.” (quotation omitted)). As

15

the SJC below observed, “because wanton or reckless

conduct requires a consideration of the likelihood of a

result occurring, the inquiry is by its nature entirely

fact-specific.” Pet. App. 59a. Accordingly, the SJC focused on the “specific circumstances of this case” in

upholding the prosecution and eventual conviction of

petitioner for involuntary manslaughter. Pet. App.

60a; see also Pet. App. 12a-17a (rejecting petitioner’s

challenge to the sufficiency of the evidence).

The SJC likewise engaged in a fact-specific analysis in correctly concluding that “[t]he only speech

made punishable” by its decision in petitioner’s case

was “‘speech integral to [a course of] criminal conduct,’” and that petitioner’s speech was therefore unprotected. Pet. App. 23a (quoting Stevens, 559 U.S. at

468). The course of conduct that formed the basis for

petitioner’s conviction 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.” Id. (quotation omitted). More specifically, as the court had described in rejecting petitioner’s sufficiency challenge on causation, these facts

included that “the vulnerable, confused, mentally ill,

eighteen year old victim had managed to save himself

once again in the midst of his latest suicide attempt,

removing himself from the truck as it filled with carbon monoxide”; that he was “badgered back into the

gas-infused truck by the defendant, . . . the person who

had been constantly pressuring him to complete their

often discussed plan, fulfill his promise to her, and finally commit suicide”; and that “after she convinced

him to get back into the carbon monoxide filled truck,

she did absolutely nothing to help him: she did not call

16

for help or tell him to get out of the truck as she listened to him choke and die.” Pet. App. 17a. Hewing

to these facts, the SJC emphasized that its decision

reached “[o]nly the wanton or reckless pressuring of a

person to commit suicide that overpowers that person’s will to live.” Pet. App. 25a.

Because this case thus concerns a fact-specific application of a settled common-law prohibition of certain conduct, it is distinguishable from the cases cited

by petitioner where this Court declined to apply the

rule that speech integral to criminal conduct is unprotected. See Pet. 20-22. Each such case involved a statute drafted to single out and prohibit speech based on

its content. See Stevens, 559 U.S. at 464-65 (depiction

of animal cruelty); United States v. Alvarez, 567 U.S.

709, 715-22 (2012) (false claim to have received Congressional Medal of Honor); Brown v. Entm’t Merchs.

Ass’n, 564 U.S. 786, 790-99 (2011) (violent video

games); R.A.V. v. City of St. Paul, Minnesota, 505 U.S.

377, 391 (1992) (fighting words “that insult, or provoke

violence, ‘on the basis of race, color, creed, religion or

gender’”); see also Melchert-Dinkel, 844 N.W.2d at 1920 (encouraging or advising suicide). No such contentbased speech regulation exists here, where the Massachusetts offense of involuntary manslaughter “is directed at a course of conduct, rather than speech, and

the conduct it proscribes is not necessarily associated

with speech.” Pet. App. 21a (quotation omitted). As

this Court recognized in R.A.V., “words can in some

circumstances violate laws directed not against speech

but against conduct.” 505 U.S. at 389 (“[A] law against

treason, for example, is violated by telling the enemy

the Nation’s defense secrets[.]”).

17

Finally, to the extent the question is properly before the court, but see p. 9 n.2, supra, the SJC did not

err in concluding in the alternative that, even if strict

scrutiny applied, the law here was “narrowly circumscribed to serve” Massachusetts’ “compelling interest

in preserving life.” Pet. App. 24a-25a. Indeed, petitioner does not contest that a criminal prohibition on

wantonly or recklessly coercing a person into suicide,

and thereby causing that person’s death, serves the

Commonwealth’s unquestioned interest in preserving

life. See Pet. 22-23. And the SJC emphasized that it

did not purport to address “the prosecution of end-oflife discussions” more generally or “discussions about

euthanasia or suicide targeting the ideas themselves,”

and that prosecutions in “these very different contexts” would “rais[e] important First Amendment concerns.” Pet. App. 24a-25a. Although petitioner complains that “nothing in [the decision below] prevents

prosecutors from charging involuntary manslaughter

in those situations,” Pet. 23, those situations were not

before the court in this case. The SJC is not a legislature and cannot enact a statute regulating assisting

suicide across a wide array of factual circumstances.

See Rogers v. Tennessee, 532 U.S. 451, 460-61 (2001)

(recognizing that state courts, “acting in their common

law capacity,” “can only act in construing existing law

in actual litigation” (quotation omitted)). Moreover,

not having raised an overbreadth claim, petitioner

cannot obtain reversal of her conviction through speculation about different prosecutions that might occur

in the future under different facts, notwithstanding

the SJC’s express caution that such prosecutions

18

would pose distinct First Amendment questions, Pet.

App. 25a. 3

B. Massachusetts’ Common Law of Involuntary Manslaughter Is Not Unconstitutionally Vague as Applied to Petitioner.

The SJC also properly rejected petitioner’s claim

that “the law of involuntary manslaughter is unconstitutionally vague as applied to her conduct.” Pet. App.

18a. While “an act does not become a crime without

its foundations having been firmly established in precedent,” Pet. 26 (quoting Hamdan v. Rumsfeld, 548

U.S. 557, 602 n.34 (2006) (opinion of Stevens, J.)), this

is not a case where the foundations were lacking.

“It has long been established in [Massachusetts’]

common law that wanton or reckless conduct that

3 In evoking the possibility of prosecutions in circumstances

different from her own, petitioner now in essence appears to be

attempting to raise a limited overbreadth challenge to Massachusetts’ common law of manslaughter as applied in the context of

“[a]ssisted or [e]ncouraged [s]uicide” generally. Pet. 22-23. But,

as discussed, the SJC expressly disclaimed that its opinion

should be read so broadly and repeatedly emphasized that its decision reached only the “systematic campaign of coercion” at issue

here. Pet. App. 23a, 24a n.15 (quoting Pet. App. 62). And at no

point in either her grand-jury or post-conviction appeals has petitioner raised an overbreadth challenge as such (whether limited

or otherwise). See, e.g., Brief of Defendant-Appellant, Commonwealth v. Carter, SJC-12502, Doc. No. 7, at 45-49 (Mass. June 29,

2018). This Court should therefore decline to consider any such

challenge at this late stage. See Stevens, 559 U.S. at 473 n.3 (declining to consider limited as-applied overbreadth challenge because defendant had failed to “adequately develop[] a separate

attack on a defined subset of the statute’s applications” in the

courts below).

19

causes a person’s death constitutes involuntary manslaughter.” Pet. App. 18a (citing Commonwealth v.

Campbell, 352 Mass. 387, 397 (1967), and cases collected therein); see also, e.g., Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). The definition of “wanton or reckless” conduct—intentional conduct that involves “a high degree of likelihood that substantial

harm will result to another”—too has been settled for

decades in Massachusetts. Welansky, 316 Mass. at

399. And Massachusetts law is clear that “the intervening conduct of a third party”—including the victim’s own conduct—“will relieve a defendant of culpability only if such an intervening response was not reasonably foreseeable.” Commonwealth v. Askew, 404

Mass. 532, 534-35 (1989); see also, e.g., Commonwealth v. Carlson, 447 Mass. 79, 84 (2006) (reasonably

foreseeable that victim would forego life support).

Moreover, there is common-law precedent in Massachusetts for involuntary manslaughter liability

where a defendant’s wanton or reckless conduct involved a high degree of likelihood that substantial

harm would result specifically in the form of a victim’s

own suicide. Pet. App. 19a. In one case, for example,

a defendant taunted his wife, who had previously attempted suicide and who had just threatened to commit suicide in response to his stated intent to divorce

her, that she was “chicken—and wouldn’t do it”; instructed her to get a rifle and loaded it for her; and

then gave her advice on how to reach the trigger by

taking off her shoes. Persampieri v. Commonwealth,

343 Mass. 19, 22-23 (1961). See also, e.g., Commonwealth v. Atencio, 345 Mass. 627, 627-29 (1963) (affirming involuntary manslaughter convictions arising

from the defendants’ participation in a “game” of “Russian roulette” and noting “[t]here is no controversy as

20

to definition” of the elements of involuntary manslaughter); Commonwealth v. Bowen, 13 Mass. 356,

359 (1816) (recounting jury instruction that defendant

could be guilty of murder where he urged a fellow prisoner to commit suicide, so long as the defendant “was

instrumental in the death”).

Accordingly, before this Court, petitioner no longer

contests that Massachusetts law defines involuntary

manslaughter “with sufficient definiteness that ordinary people can understand what conduct is prohibited,” Pet. 29 (quoting Kolender v. Lawson, 461 U.S.

352, 357 (1983)), and, in particular, no longer contests

that she herself had sufficient notice that her own conduct was unlawful. See, e.g., Pet. i, 29-30. Rather, petitioner’s sole contention is that, notwithstanding the

SJC’s unchallenged conclusion that Massachusetts

law gave her sufficient notice of the unlawfulness of

wantonly or recklessly coercing a vulnerable person

into committing suicide, Massachusetts law nevertheless defies the core due process principle that criminal

laws must be “written or interpreted ‘in a manner that

does not encourage arbitrary and discriminatory enforcement[.]’” Pet. 29 (quoting Kolender, 461 U.S. at

357).

But the cases on which petitioner relies, where this

Court struck down criminal laws for failing to “establish minimal guidelines to govern law enforcement,”

Smith v. Goguen, 415 U.S. 566, 574 (1974), are inapposite here. See Pet. 29-32. This is not a case involving a vague statutory provision in the absence of any

“judicial construction,” Goguen, 415 U.S. at 578; nor

does the Commonwealth seek “to rely upon prosecutorial discretion to narrow the otherwise wide-ranging

scope of a criminal” prohibition, Marinello v. United

21

States, 138 S. Ct. 1101, 1108 (2018). To the contrary,

petitioner’s conviction is consistent with decades of

common-law precedent establishing straightforward

elements, against which fact-specific circumstances

may be assessed. This is also not a case where a

broadly applicable statute “furnishes a convenient tool

for harsh and discriminatory enforcement by local

prosecuting officials, against particular groups

deemed to merit their displeasure,” like the statute in

Kolender authorizing police to stop any person on the

street to demand “credible and reliable” identification.

461 U.S. at 360 (quotation omitted). Rather, as the

SJC repeatedly emphasized, its decision upholding petitioner’s conviction applies only in the limited circumstances where a person has died as the result of wanton or reckless conduct. Pet. App. 20a, 25a. And, for

similar reasons, this case does not entail “‘more unpredictability and arbitrariness than the Due Process

Clause tolerates.’” Sessions v. Dimaya, 138 S. Ct.

1204, 1216 (2018) (quoting Johnson v. United States,

135 S. Ct. 2551, 2558 (2015)) (“crime of violence” residual clause required court to “picture the kind of conduct that the crime involves in ‘the ordinary case’” and

then assess whether it presents “some not-well-specified-yet-sufficiently-large degree of risk”). Indeed, petitioner’s tacit concession in this Court that she herself

did not lack constitutionally sufficient notice undermines any such claim of unpredictability.

Petitioner’s assertion that the decision below

“‘cast[s] a pall of potential prosecution’” over numerous disparate factual situations, Pet. 33 (quoting

McDonnell v. United States, 136 S. Ct. 2355, 2372

(2016)), is thus unfounded. Again, the SJC expressly

limited its holding under Massachusetts’ longstanding

common law of involuntary manslaughter to the facts

22

here: “the wanton or reckless pressuring of a person to

commit suicide” that thereby caused the person’s

death. Pet. App. 24a-25a. Thus, any “pall” has been

cast only over such cases—and not, for example, “endof-life discussions” more generally, Pet. App. 24a.

Common-law crimes are not unconstitutional simply

because, conceivably, on different facts, an “aggressive” prosecutor could pursue a potentially unconstitutional conviction, Pet. 32. See Broadrick v. Oklahoma, 413 U.S. 601, 614 (1973) (noting that, in Cantwell v. Connecticut, 310 U.S. 296 (1940), “[t]he Court

did not hold that the offense ‘known as breach of the

peace’ must fall in toto because it was capable of some

unconstitutional applications” like Cantwell’s prosecution for playing a religious record on a public street

to willing listeners; “in fact, the Court seemingly envisioned [the offense’s] continued use against ‘a great

variety of conduct destroying or menacing public order

and tranquility’” (quoting Cantwell, 310 U.S. at 308)).

The SJC was therefore correct to reject petitioner’s

due process claim.

CONCLUSION

The petition for a writ of certiorari should be denied.

23

Respectfully submitted,

MAURA HEALEY

Attorney General for the

Commonwealth of Massachusetts

ELIZABETH N. DEWAR*

State Solicitor

MARIA GRANIK

Assistant Attorney General

One Ashburton Place

Boston, MA 02108

bessie.dewar@mass.gov

(617) 963-2204

*Counsel of Record

November 22, 2019