Online Kevorkian’s First Amendment Challenge to Assisted Suicide Convictions Unsuccessful -– State v. Melchert-Dinkel
[Post by Venkat Balasubramani, with comments from Eric]
State v. Melchert-Dinkel, A11-0987 (Minn. Ct. App.; July 17, 2012)
The State of Minnesota prosecuted a Minnesota nurse for engaging in Internet conversations with people who were contemplating suicide. The individuals who committed suicide lived in England (Mark Drybrough, age 31) and Canada (Nadia Kajouji, age 19). (Melchert-Dinkel corresponded with others who allegedly committed suicide, but the prosecution focused on these two.) It’s a sick but interesting case that addresses the First Amendment issue of when the state can criminalize speech that encourages (or causes) others to kill themselves.
Victim 1 – Drybrough: Drybrough spent time on a website where users posted messages about “life, depression, and suicide.” Melchert-Dinkel corresponded with him, posing as “Li Dao, a 25-year-old female nurse in Minnesota.” Drybrough mused about methods of hanging one’s self, and Melchert-Dinkel responded as Li-Dao, offering advice on what would and wouldn’t work. He also asked Drybrough about whether he had a timeline for when he would take the final step and purported to share his own suicidal thoughts and plans. The exchanges between Drybrough and Melchert-Dinkel are chilling and reproduced in detail in the court’s opinion. In one response, Drybrough indicated to Melchert-Dinkel that he was “not yet ready to die with ‘Li Dao.” Unfortunately, five days later, he hanged himself.
Victim 2 – Kajouji: Melchert-Dinkel found Kajouji on a message board where “users post messages describing various suicide methods.” In response to one of her posts, Melchert-Dinkel engaged in a long back-and-forth with Kajouji. This time he posted as “cami” and used the “firstname.lastname@example.org” email address. He portrayed himself as a 31 year old emergency room nurse who, “mirroring Kajouji, suffered from severe depression for many years, had undergone treatment, had not improved despite treatment, had decided to end ‘her’ life by suicide soon, and had considered the effectiveness of various methods of suicide.” Kajouji talked about a plan to stage a drowning accident, but Melchert-Dinkel advised that hanging was superior to drowning for a variety of reasons. He provided Kajouji with advice on the topic, and went so far as to say that he could counsel Kajouji on completing the task while watching along on a webcam. She ultimately drowned herself.
The two suicides occurred in 2005 and 2008, respectively. Tipped off (among other things) by someone who was concerned that a Minnesota resident was encouraging people to kill themselves, the authorities tracked down the posts and communications to Melchert-Dinkel’s computer. Initially he denied making the posts (blaming them on his daughters), but he eventually admitted he asked some 15-20 people to commit their suicide online so he could watch. He said he entered into some 10 mutual “suicide pacts,” although he never had any intentions of actually killing himself.
He was charged with two counts of “advising and encouraging” suicide in violation of a Minnesota statute. He waived his right to a jury trial. The trial court rejected his First Amendment challenge to the prosecution and found him guilty on both counts. On appeal, Melchert-Dinkel argued both that the statute was vague and overbroad, and also that as applied to him violated his First Amendment rights.
Overbreadth: The court says right out of the gate that Melchert-Dinkel’s speech is outside the bounds of protected speech because it’s speech that is “integral to harmful, proscribable conduct.” While suicide is not illegal under Minnesota law, Minnesota’s prohibition on assisting suicide is deeply rooted. Assisted suicide was criminalized in 1886 in Minnesota, and this law has long-remained on the books. Melchert-Dinkel argued that while physically assisting suicide is one thing, actually encouraging someone to commit suicide should be treated differently. The court says that this is similar to the general prohibition against aiding and abetting someone else to commit a crime.
Turning to his overbreadth argument, the court says that the statute only prohibits a narrow category of speech and only restricts someone from “speak[ing] in a manner that purposefully urges or helps another person to kill herself.” It doesn’t touch political or social communication on this topic, such as advocating assisted suicide, promoting suicide acceptance, protesting against laws that oppose suicide, and increasing awareness of the “myriad issues that bear on suicidal ideations, suicide methods, or purported suicide benefits.” Given Melchert-Dinkel’s inability to come up with examples of First Amendment communications that fall under the statute, the court declined to employ the “strong medicine” of overbreadth.
Melchert-Dinkel did raise one overbreadth argument that merited the court’s attention: the proscription on “encouraging” others to commit suicide. The court says “encourage” may capture “supportive or agreeable” communications that the speaker does not necessarily intend to result in a suicide, but the court says that these may fall at the edges of the statute. At its core, the statute prohibits people who actively encourage others to commit suicide, intending for it to occur. Moreover, the statute also prohibits “advising and assisting” someone to kill themselves.
As applied challenge: Melchert-Dinkel’s as applied defense fares no better. The court makes its views clear when it introduces his argument:
[Melchert-Dinkel] contends that the First Amendment, which does not lift a finger to protect a charlatan who falsely advertises, or a slanderer who defames, or a perjurer who lies under oath, should be applied to protect him from mispresenting himself as a nurturing but suffering young nurse and intentionally prodding two suicidal, mentally ill strangers to hang themselves on camera in a phony suicide pact simply so that he could watch or take some sort of pleasure in their deaths.
The court says it is “confident that the Constitution does not immunize [his] morbid, predatory behavior simply because it appears in the form of written words.” Melchert-Dinkel also argued that his words do not satisfy the Brandenburg incitement test because nothing he said caused an “immediate” or imminent harmful response from the listener. The court says that his words did cause an imminent or immediate reaction, and also says that it’s not convinced that the reaction needs to be “immediate” under First Amendment law. Finally, he argued that his speech is protected because nothing he said actually caused the deaths of the individuals in question—they were already suicidal. The court says that the First Amendment does not require this sort of a causal link, but in any event, the evidence raises the inference of such a link.
The result in the case may seem appropriately driven by the natural revulsion for Melchert-Dinkel’s conduct, but this shouldn’t necessarily drive the legal analysis. In this respect, the Lori Drew case is an obvious parallel, even though the statute used to prosecute Drew was clearly not intended for her conduct, and interpreting the statute in the manner urged by the government would have easily captured otherwise innocent actors.
Coming back to this case, the court’s First Amendment analysis feels clunky in certain parts. It seems circular to say that the speech is not protected because it’s integral to criminal conduct .. when the crime is the speech itself. The analogy to aiding and abetting also feels out of place, given that suicide is not a crime under Minnesota law. To the extent he aided and assisted the victims, he was not helping them do anything that was criminal under Minnesota law. (This feels like something out of a law school exam question.) A final point is that the Supreme Court has been increasingly protective of speech in many respects. I don’t know if any of the recent decisions bear directly on the First Amendment analysis in this case, but it was interesting to not see any mention of cases like US v. Alvarez (stolen valor, where the Court did lift a finger to protect a charlatan); the video game case (Brown v. Entertainment Merchants Association); and Snyder v. Phelps (Westboro). The court did discuss US v. Stevens (the dogfighting depiction case) but it seemed to ignore the Supreme Court’s rejection of a “free floating First Amendment test” where the value of speech is measured against its societal costs. (“As a free-floating test for First Amendment coverage, that sentence is startling and dangerous.”) In fact, this sort of weighing is exactly what the court ended up doing.
The final challenge is that I wasn’t sold on the causation side–it’s difficult to prove, but you don’t get the sense that Melchert-Dinkel’s online chats played the requisite causal role in the deaths of the victims. It’s not as if he provided the means to take the final act where those means were not widely known or otherwise available (and his victims didn’t necessarily seem to utilize his information anyway).
As a judge on this case, I would have struggled. I certainly see Eric’s point below about Melchert-Dinkel providing a Kevorkian-like online counseling service, but the fact that he engaged directly with the victims was troubling. The fact that he engaged in subterfuge also makes him a tough First Amendment champion (but see US v. Alvarez). That said, what would have made this case much tougher is if Melchert-Dinkel had just published content that was generally available on methods of committing suicide and even generally encouraging individuals to commit suicide.
It’s easy to castigate Melchert-Dinkel. After all, he seemed to get perverse pleasure from steering people towards committing suicide, and his repeated requests that they webcast their deaths signal a sick voyeuristic interest in watching the event. However, after reading the opinion and the conversation transcripts, I also got a sense that Melchert-Dinkel viewed himself as providing a Dr. Kevorkian-like service. He wasn’t only trying to maximize his own pleasure derived from other people’s deaths, but he was trying to provide helpful information to people who were making literally the most important decision of their life: if and how they wanted to commit suicide. Obviously, as a society, we’d prefer it if Melchert-Dinkel deployed his energies to counsel people away from suicide–but from a free speech perspective, I wouldn’t want to excise accurate and comprehensive information about if and how to commit suicide from the information ecosystem.
I can sort of rationalize the court’s opinion by drawing the same distinction we make in legal circles about rendering legal advice. Publishing general information on legal topics to a mass audience isn’t the practice of law; providing individualized counseling on legal topics in a one-to-one format typically is. The court implicitly drew this distinction, willing to uphold the conviction from a First Amendment challenge because of the one-to-one nature of Melchert-Dinkel’s “counseling.” Had his advice and guidance been less personalized, the court surely would have been more supportive of the underlying First Amendment interests.
Instead, I fear the court was so swayed by the unsavory aspects of Melchert-Dinkel’s conduct (such as using fake personalities, making suicide pacts he never intended to keep, and his repeated requests for webcasting) that the opinion was insufficiently protective of the underlying and real First Amendment problems with Melchert-Dinkel’s conviction. From my perspective, the statute is unquestionably too broad on its face, so at minimum the court should have limited the statute’s application. Melchert-Dinkel’s conduct and the suicides it contributed to are tragedies, but so is an opinion that doesn’t respect the First Amendment.
Volokh: Freedom of Speech No Defense for Urging A Particular Person to Commit Suicide (discussing the lower court opinion)