FAN.11 (First Amendment News) — Encouraging Suicide, First Amendment Protected?


{see news item after one immediately below re suicide case}

Barcelona, April 14, 2014. I’m walking down a narrow street in Spain when I come upon a large town square (Plaza de San Jaime). Turns out that it’s the site of the offices of the Generalitat de Catalunya (a national entity) — the perfect place for dissidents to gather to protest against this or that or for this or that. On this day, the protestors were preparing for a rally to champion their anti-monacrchist movement. Mind you, I don’t have a horse in this race, if only because I know next to nothing about the history and politics of Spain . . . other than Francisco Franco was a murderous tyrant. Still, the sight of dissent is, for me, a welcome one. That people may freely assemble and voice their grievances is always a good sign. Make of them what you will, but I stand firmly with them when it comes to exercising such rights of dissent. Of course, it’s always easier when you agree with the cause, but such a narrow mindset misses the point of peaceful dissent — that others may actually loathe what we hold dear and thus attempt to change our world. Those others may be anti-monarchists in Spain or anti-abortionists in South Carolina. Where freedom is the constituted form of government, free speech means that such dissidents deserve their day in the courtyard of public opinion. By that measure, I say bully for the guy with the rebellious flag, his fist-a-flyin’, who has the bravado to protest in front of the seat of power. 

Minnesota Court Rules that First Amendment Protects Encouraging a Suicide

My friend Professor Sherry Colb has just posted an informative and thoughtful piece on the Verdict blog concerning a recent ruling by the Minnesota Supreme Court in the case of State of Minnesota v. Melchert-Dinkel. The case involved a First Amendment challenge to a state statute that provided:“Whoever intentionally advises, encourages, or assists another in taking the other’s own life may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both.” The free speech issue in the case was whether advising or encouraging or assisting suicide falls within one of the traditionally unprotected categories of speech. By a 4-1 vote, the Court held that the sections of the law in question violated the First and Fourteenth Amendments. Justice Alan C. Page dissented (two Justices did not participate).

Justice G. Bary Anderson began his majority opinion with the following statement: “After communicating with appellant William Melchert-Dinkel, Mark Drybrough and Nadia Kajouji each committed suicide.” Later, he added: “Posing as a depressed and suicidal young female nurse, Melchert-Dinkel responded to posts on suicide websites by Mark Drybrough of Coventry, England, and Nadia Kajouji of Ottawa, Canada. In each case, he feigned caring and understanding to win the trust of the victims while encouraging each to hang themselves, falsely claiming that he would also commit suicide, and attempting to persuade them to let him watch the hangings via webcam. Drybrough, who was 32 years old at the time Melchert-Dinkel contacted him in 2005, had suffered from significant mental and physical health problems for many years . . . . His contact with Melchert-Dinkel began after the appellant responded to Drybrough’s posting in an online forum about suicide asking about methods to commit suicide by hanging without ‘access to anything high up to tie the rope to.’ Melchert-Dinkel described how to commit suicide by hanging by tying a rope to a doorknob and slinging the rope over the top of the door. . . . . On March 1, 2008, 19-year-old Nadia Kajouji of Ottawa, Canada, posted a message on a suicide website asking for advice on suicide methods that would be quick, reliable, and appear to be an accident to her family and friends. Five days later, Melchert-Dinkel responded, pretending to be a 31-year-old emergency room nurse who was also suicidal. Again, he presented himself as a caring and compassionate friend who understood Kajouji’s plight and wanted to help.”

Mark Drybrough hung himself to death while Nadia Kajouji jumped off a bridge, contrary to Melchert-Dinkel’s advice that she hang herself immediately. She, too, died as a result of her actions.

Professor Colb analyzed the relevant categories of unprotected speech — fraud, incitement, and encouraging criminal activity — to determine their fit, if any, to the facts of the case. She concluded that “advising or encouraging a suicide in a direct and targeted manner, which the law in question contemplates, does not fall within the protection of the First Amendment, as it represents incitement to imminent lawlessness.” By contrast, she noted: “In the very different context of physician-assisted suicide, for instance, my view would be that a doctor should be allowed to provide assistance to a patient but should never be allowed to try to persuade an ambivalent patient that he really should go ahead and end his own life.”

In a future column I hope to add a few thoughts of my own and invite some First Amendment types weigh in to see how they might analyze this case. Stay tuned. Meanwhile, take a look at Sherry’s more extended post on the case over at the Dorf on Law blog.

Another “Free Speech Zone” Falls. According to an Associated Press report: “The Virginia Community College System has agreed to suspend its student demonstrations policy in response to a lawsuit filed by Thomas Nelson Community College student Christian Parks. Both sides have asked a federal judge in Norfolk to put the case on hold until May 2 while a new policy and settlement details are negotiated.” Mr. Parks was represented by David Hacker of the Alliance Defending Freedom. Free speech zones like the Virginia Community College one are consistently defeated in court. Even so, according to  Greg Lukianoff (president of the Foundation for Individual Rights in Education), as of last November “one in five public four-year colleges we surveyed had unduly restrictive free speech zone policies.” (See here.) 

Conflict in DC Circuit — The Meat & Minerals Cases In FAN.9 I mentioned the  American Meat Institute v. AGRI (D.C. Cir., March 28, 2014) case. That’s the controversy involving  a federal rule that requires, among other things, country-of- origin labeling (“COOL”). Since that post, the Courts of Appeals for the District of Columbia has agreed to hear the case en banc. In a related matter, and as Professor Ruthann Robson has recently noted,the D.C. Circuit just handed down a significant decision in National Association of Manufacturers v. Securities and Exchange Comm’n. The majority opinion was authored by Senior Judge A. Raymond Randolph with Judge David Sentelle joining him and Judge Sri Srinivasan concurring in part. The panel held that a part of the Dodd-Frank Wall Street Reform and Consumer Protection Act (15 U.S.C. § 78m(p)(1)(A)(ii) & (E)) ran afoul of the First Amendment.

The provision in question required companies to inform the Securities and Exchange Commission and state on their website if their products were not “DRC [Democratic Republic of the Congo] conflict free.” The law was Congress’ response to the Congo War and lawmakers’ attempt to curb any trade in minerals with those armed groups that might benefit by such trade in gold, tantalum, tin, and tungsten mines in the Congo. The law mandated that the SEC  issue regulations requiring firms using “conflict minerals” to investigate and disclose the origin of those minerals. Though the Court ruled against the Appellants (three business groups) under the Administrative Procedure Act, it nonetheless sustained their compelled speech First Amendment attack. In his majority opinion, Judge Randolph declared:

The Commission argues that rational basis review is appropriate because the conflict free label discloses purely factual non-ideological information. We disagree. Rational basis review is the exception, not the rule, in First Amendment cases. . . . The Supreme Court has stated that rational basis review applies to certain disclosures of “purely factual and uncontroversial information.” Zauderer v. Office of Disciplinary Counsel . . . But as intervenor Amnesty International forthrightly recognizes, we have held that Zauderer is “limited to cases in which disclosure requirements are ‘reasonably related to the State’s interest in preventing deception of consumers.’” R.J. Reynolds Tobacco Co. v. FDA . . . (D.C. Cir. 2012). No party has suggested that the conflict minerals rule is related to preventing consumer deception. In the district court the Commission admitted that it was not. . . . That a disclosure is factual, standing alone, does not immunize it from scrutiny because “[t]he right against compelled speech is not, and cannot be, restricted to ideological messages.”

Later in his opinion, Judge Randolph added:

At all events, it is far from clear that the description at issue—whether a product is “conflict free”—is factual and non- ideological. Products and minerals do not fight conflicts. The label “conflict free” is a metaphor that conveys moral responsibility for the Congo war. It requires an issuer to tell consumers that its products are ethically tainted, even if they only indirectly finance armed groups. An issuer, including an issuer who condemns the atrocities of the Congo war in the strongest terms, may disagree with that assessment of its moral responsibility. And it may convey that “message” through “silence.” . . .  By compelling an issuer to confess blood on its hands, the statute interferes with that exercise of the freedom of speech under the First Amendment.

In a closing footnote Judge Randolph also stated: “We only hold that the statute violates the First Amendment to the extent that it imposes that description requirement. If the description is purely a result of the Commission’s rule, then our First Amendment holding leaves the statute itself unaffected.” Judge Srinivasan took exception to the First Amendment portion of the majority opinion:

An essential step in the majority’s First Amendment analysis is that the relaxed standard for reviewing compelled commercial-speech disclosures set forth in Zauderer applies only if the disclosure requirement serves a governmental interest in preventing consumer deception. That precise question is currently pending before our en banc court in American Meat Institute v. United States Department of Agriculture. In that case, a panel of this court (of which I was a member) issued an opinion upholding labeling requirements for meat products under Zauderer’s standard, which requires that disclosure mandates be “reasonably related” to the government’s interests. . . . The full court, acting on the panel’s suggestion has now voted to rehear the case en banc, with oral argument set to take place on May 19, 2014. The en banc court will receive supplemental briefing on the question whether review of “mandatory disclosure” obligations can “properly proceed under Zauderer” even if they serve interests “other than preventing deception.” My good colleagues in the majority here assume the answer to that question is no, and their decision on the First Amendment claim rests on that assumption. But if the en banc court in American Meat decides otherwise, the First Amendment claim in this case presumably would need to be reconsidered afresh.

The Court did, however, let stand another part of the law that required publicly traded manufacturers to disclose to investors whether any tantalum, tin, gold or tungsten used in their products originated from the conflict-ridden Democratic Republic of Congo. (See here) The government is likely to seek en banc review of the minerals case, perhaps by way of a request that it be consolidated with the en banc review in the meat case (though the May 19th date for arguments in that case might then have to be changed). The Lawyers Peter D. Keisler argued the cause for the Appellants. Tracey A. Hardin, Assistant General Counsel, Securities and Exchange Commission, argued the cause for Appellee. Among the several amicus briefs filed on both sides, there was one filed by the American Petroleum Institute in support of Appellants, whose lead lawyer was Eugene Scalia.

Note: For early commentary on the case, see:

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  • Prewett v. Weems, April 14, 2014 (6th Cir.) (re award of damages in federal civil action under 18 U.S.C. § 2255  for compensation for abuse of children in the making of illegal pornography. Presumed damages of $1 million reversed on statutory interpretation grounds).

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Last FAN Column: FAN.10 (Justice Stevens’ proposal to amend 1st Amendment) and FAN.10.1 (Jefferson Center’s Muzzle Awards).

Next FAN Column: Wednesday, April 23rd (re forthcoming launch of First Amendment Salon in D.C., N.Y.C., and Philadelphia).  

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