John Tlumacki/The Boston Globe via Getty Images

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This week, 20-year-old Michelle Carter was convicted of involuntary manslaughter in the suicide of her boyfriend, Conrad Roy — even though she was miles away when he died. The case is a tragic one from top to bottom and it’s hard to muster much sympathy for Carter. But the decision was an overreach.

Roy took his own life after a series of unsettling text messages between him and Carter wherein she encouraged him to kill himself; when he tried to asphyxiate himself in his car, got scared, and got out, she told him to get back in the car, and he died. That phone call and her text messages, prosecutors said, were enough to prove she caused his death. Carter is set to be sentenced Aug. 3 and faces up to 20 years in prison.

Reading the texts, you get a picture of two very disturbed young people, and Carter in particular seems cold and manipulative. But is that the same as her killing him?

The classic involuntary manslaughter case is killing someone while driving drunk — the defendant didn’t mean to take someone’s life but their reckless, negligent actions inarguably did just that. But for their decision to drive drunk, the person they hit and killed would not have been hit and killed. Carter did encourage Roy to kill himself. Where it gets trickier, though, is in that “but for” — did she cause him to die, so that but for her actions, he would be alive? Could she have killed him even though she wasn’t there? Can you even kill someone with words alone?

Where words become criminal can be tricky, especially when the claim is that the words themselves caused another’s death. Re-position the Carter case and it’s easy to see how a murkier situation could arise. Imagine a woman is dying of terminal cancer and has a series of conversations with her partner about ending her own life. Imagine he is supportive and, as her plans gain steam, encouraging. Should the partner of the woman who ends her own life be charged with involuntary manslaughter as well?

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That, of course, is a much more sympathetic case than that of a teenager pushing her mentally ill boyfriend to end it all. Unlike a terminal cancer patient in this hypothetical, Roy might still be alive if he had received appropriate psychological care and support. Unlike that same hypothetical patient, Carter pushed Roy to kill himself — that she told him to get back in the car after he halted his suicide attempt was a decisive fact for the judge in the case. And from the texts introduced at the trial, it doesn’t sound as though Roy and Carter had long, thoughtful conversations about mental illness and end-of-life choices; it sounds like they were both troubled young people feeding off each other’s problems and Carter transitioned from being moderately supportive to being a truly toxic force who pushed Roy toward death.

It would be difficult, though, to look at the Carter case and the hypothetical cancer patient, and criminalize one scenario and not the other — not impossible, but a significant challenge. Carter’s defense team emphasized that she initially encouraged Roy to get help and Roy himself had attempted suicide before — Carter didn’t introduce the idea, even as she eventually promoted it and even as she pushed him to complete his suicide when he hesitated. All of that makes this less a clear-cut case of one person haranguing the other into ending their own life, even as it’s hard to interpret Carter’s chilling messages as reflecting anything other than her desire for Roy to die by his own hand.

But the ugliness of this particular case doesn’t negate the underlying principle: that to be guilty of manslaughter, you have to have actually killed someone, and words don’t kill people. Roy was a vulnerable young man with a history of suicide attempts. And speech, even bad speech, is widely protected by the First Amendment. It isn’t in society’s best interests to criminalize conversations about suicide — imagine, again, the woman with the terminal illness and her supportive partner.

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There are lines even to free speech and it would appear Massachusetts just drew a new set. Using your words to recklessly create a dangerous situation — the classic scenario of yelling “Fire!” in a crowded theater — has long been something that could be legally penalized, if it was reasonably foreseeable that someone would get hurt. But in the past half-century, courts have allowed for even more expansive free speech rights, and for speech to be criminal today, the speech must intend to incite “imminent lawless action,” and it must also be actually likely to incite such action. That’s a very high bar. And given that there’s no Massachusetts law against assisting someone in committing suicide, and that suicide is by definition self-inflicting and not homicide, it’s hard to see what lawless action Carter incited for which she is now being held accountable.

Even as courts have increasingly evaluated cases where online bullying led victims to suicide or attempted suicide, they’ve largely sidestepped the question of whether such harassment could meet the bar for a manslaughter conviction, with prosecutors instead charging defendants with lesser crimes. Lori Drew, a mother in Missouri, was accused of using a fake Myspace profile to harass a 13-year-old girl, Megan Meier, who died by suicide after Drew’s bullying; she was initially convicted of computer fraud but the verdict was thrown out. At Rutgers University in New Jersey, after a young man named Tyler Clementi died by suicide, his roommate, Dharun Ravi, was convicted on charges of bias intimidation for using a webcam to spy on Clementi having sex; Ravi’s conviction, too, was eventually tossed and he pleaded guilty to attempted invasion of privacy.

Communicating via text and electronic forms of communication is a normal part of modern life, and arguably one problem is that our laws have not caught up. It’s hard to watch the Carter case — or the Drew case, or the Ravi case — and not conclude that these people who did such awful things shouldn’t be guilty of something. But the impulse to punish bad behavior doesn’t mean they should be guilty of just about anything. Even as Carter seems like a young woman without a moral compass, a depraved and cruel person who acted appallingly and should certainly find herself legally penalized for something, manslaughter seems to be a step too far. Holding someone legally responsible for another’s suicide — not criminalizing assisting someone with suicide or bullying them or harassing them, but holding them primarily accountable for the death itself — criminalizes speech that, while bad, should not be illegal. If we want to criminalize behavior like Carter’s (or Drew’s or Ravi’s), our legislatures should take the time to craft careful new criminal codes that fold in our modern, more virtually connected reality. But prosecutors shouldn’t shoehorn charges where they don’t really fit and judges shouldn’t compromise our robust First Amendment freedoms even in difficult, ugly cases.

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Roy’s death is a tragedy, one of a great many reminders that too many people – especially young people — are not getting the mental health care they need. It is a chilling reminder that the most vulnerable among us are often susceptible to the manipulations and abuses of others who may themselves be disturbed, or simply selfish and cruel — and that abusers can also come in the form of petite blonde teenage girls.

But that doesn’t make Carter a killer.

If you or someone you know needs help, please call the National Suicide Prevention Lifeline at 1-800-273-TALK(8255) or visit their website.



Jill Filipovic is the author of . Follow her on Twitter.