McGovern: Free speech may mean free pass for Michelle Carter – Boston Herald

Posted: August 4, 2017 at 12:55 pm

The First Amendment and the winding road of the appellate process are the only things keeping Michelle Carter out of jail.

And the constitutional issue may be what sets her free forever.

Carter, who yesterday was sentenced to 212 years behind bars with only 15 months to actually serve was given a last-second reprieve by Judge Lawrence Moniz. He held off on the punishment at the behest of Carters attorneys who argued that she shouldnt be jailed for a conviction that may not stick.

This is a novel case involving speech, said Joseph Cataldo, Carters lead attorney. These are legitimate issues that are worthy of presentation to the appeals court.

The crux of the argument is that Carter didnt commit a crime when she convinced Conrad Roy III, through texts and phone calls, to get back in his truck as it filled with deadly carbon monoxide fumes. Her communications, according to Cataldo, were protected by the First Amendment.

Massachusetts does not have an assisted-suicide or an encouragement of suicide law in place, and this is violative of the First Amendment, Cataldo said outside court.

Some may remember that the Supreme Judicial Court already ruled on this case and allowed Carters involuntary manslaughter trial to move forward in 2016. However, the high court did not fully tackle the First Amendment ramifications that surround the case.

In his decision, former Justice Robert Cordy mentioned the First Amendment only three times all in footnotes and brushed over the idea that Carters speech may have been protected without a hefty analysis.

But other courts that have dug deeper into this thorny issue have come out differently. In Minnesota, for example, the states high court struck down a law that prohibited people from encouraging or advising suicide, finding that the statute violated the First Amendment.

Speech in support of suicide, however distasteful, is an expression of a viewpoint on a matter of public concern, and, given current U.S. Supreme Court First Amendment jurisprudence, is therefore entitled to special protection as the highest rung of the hierarchy of First Amendment values, the court wrote in its 2014 decision.

Cataldo has 30 days to file his notice of appeal, and from there the trial court record will be put together and a time frame will fall into place. It could take a year, or it could drag on longer. The SJC can, on its own, grab the appeal before the state Appeals Court hears it a move that would show the high court is particularly interested in the case.

I think that will happen here. Two years ago, SJC Chief Justice Ralph Gants told me that his court wasnt interested in calling legal balls and strikes. No, he said the SJCs job is to set the strike zone and dictate clear precedent that other courts in the commonwealth need to follow.

This is one of those cases. In our evolving digital age, where we can communicate with a touch of a button, its important to outline when a text or call or tweet becomes criminal.

Yesterday, Bristol prosecutor Maryclare Flynn seemed to notice that Moniz was about to set Carter free pending her appeal and made a last-ditch effort to change his mind.

This is not a suicide case, she said. This is not a First Amendment case.

Maybe not, but now a high court will have to decide whether or not its both.

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McGovern: Free speech may mean free pass for Michelle Carter - Boston Herald

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