Suicide, Cyberspace and the First Amendment

About a year and a half ago, I did a post analyzing the case that was then being brought against William Francis Melchert-Dinkel for allegedly advising and encouraging suicide in violation of Minnesota law.  At that point, all I had access to was the criminal complaint filed against him and various news stories, plus a Wikipedia entry.

Since I wrote that post, Melchert-Dinkel was charged “with two counts of urging suicide” in violation of Minnesota Statutes § 609.215(1).  State v. Melchert-Dinkel, __ N.W.2d __, 2012 WL 2913339 (Minnesota Court of Appeals 2012).  Section 609.215(1) makes it a crime to intentionally advise, encourage or assist another person to commit suicide.  One convicted of violating the statute can be imprisoned for “up to 15 years”, to pay a fine of “not more than $30,000, or both.”  Minnesota Statutes § 609.215(1). 

I do not have space here to go through all the conduct the court’s opinion attributes to Melchert-Dinkel, so I will only describe some of it.  The case started in 2008 when Sergeant William Haider of the St. Paul Police Department was contacted by Celia Blay, a British woman who was concerned about an “online predator” who was “encouraging persons to commit suicide by hanging.” State v. Melchert-Dinkel, supra.  

She said the predator “used a variety of names, including `Li Dao,’ `Falcon Girl,’ and `Cami.’” State v. Melchert-Dinkel, supra.  Blay had traced the predator through a website where users “converse about life, depression, and suicide” and had linked the person’s email address to a “male Minnesota resident.”  State v. Melchert-Dinkel, supra. “Police linked Melchert–Dinkel to the” email address.   State v. Melchert-Dinkel, supra.

Heider learned that Mark Drybrough, had “hanged himself in Coventry, England, at age 31 in July 2005 . . . . five days after the last of a series of email[s] between him and Melchert–Dinkel, who had been representing himself to Drybrough online as `Li Dao,’ a 25–year–old female nurse in Minnesota.”  State v. Melchert-Dinkel, supra.  

The emails began on July 2, 2005, when Melchert-Dinkel used his Li Dao email address to respond to a question Drybrough posted on the website asking whether

`anyone [has] details of hanging methods where there isn't access to anything high up to tie the rope to.’ . . . `Li Dao’ told Drybrough that, `depending on how tall you are . . . you can easily hang from a door using the knob on [one] side to tie the rope to, sling it over the top of the door, attach the noose or loop to yourself then step off and hang successfully.’ 

He also wrote that Drybrough could still hang himself if he is tall, offering, `[Y]ou can still do a partial suspension hanging that way by having the noose ext fairly high up and attaching it to yourself, then lowering yourself into a sitting position or kneeling down so you [can] hang that way.’ He assured Drybrough `[i]t is very effective’. . . . [and] wished Drybrough `good luck.’

State v. Melchert-Dinkel, supra. 

The next day, Drybrough posted a message “asking about easily obtainable drugs suitable for a quick and painless overdose”, but Melchert-Dinkel responded in an email “that discouraged overdosing and urged hanging”.  State v. Melchert-Dinkel, supra.  The two continued their email correspondence until July 22; in some emails, Melchert-Dinkel linked “his own purported plan” to kill himself with the timing of Drybrough’s death, noting that “`I want to die very badly . . . but [will] stay here for you as long as possible.’” State v. Melchert-Dinkel, supra. 

The police also investigated Melchert-Dinkel’s involvement in the 2008 suicide of a 19-year-old Canadian girl, Nadia Kajouji.  According to the opinion, Melchert-Dinkel found

Kajouji on a website where users post messages describing suicide methods. Kajouji posted a message on March 1, 2008, disclosing that she lived alone, suffered from severe depression, and had `not attempted suicide in the past because [she was] terrified of failing.’ 

She requested advice on what suicide method would have the highest chance of success. Posing as `Cami,’ on March 6 Melchert–Dinkel engaged Kajouji in two separate hour-long discussions six hours apart and a shorter, ten-minute discussion on March 9, the last day anyone saw Kajouji alive.

State v. Melchert-Dinkel, supra. 

This is an excerpt from “Cami’s” email correspondence with Kajouji:

Cami: . . . [S]ince ive seen every method used possible at work as a emergency ward nurse[ ] i know what does and don't work so that is why i chose hanging[.] ive tried . . . to see if it hurt and how fast it worked and it was not a bad experience. . . .

Nadia: I am planning to attempt this Sunday.

Cami: wow ok[.] you want to use hanging too? Or can u?

Nadia: I'm going to jump

Cami: well [ ] that is ok but most people puss out before doing that. . . .

Nadia: I want it to look like an accident. There's a bridge over the river where there's a break in the ice. . . .

Cami: ok[.] otherwise I was gonna suggest hanging. . . .

State v. Melchert-Dinkel, supra.  (If you’re interested, the opinion has excerpts from other, similar exchanges.)

When he was interviewed by police, Melchert-Dinkel told them that he had asked

15 to 20 people to commit their suicide using a webcam to capture and transmit the event online. No one ever did. . .  He said he had been `an accessory’ to the suicides of about five people. . . . [and] had entered into approximately 10 `suicide pacts.’ He [said] perhaps five people had ended their lives by suicide after joining him in pacts but was certain about only the Ottawa and Coventry deaths. He admitted . . . he had no genuine plans to kill himself. . . .

State v. Melchert-Dinkel, supra. 

After being charged, Melchert-Dinkel moved to dismiss the charges, claiming they violated the 1^st Amendment.  State v. Melchert-Dinkel, supra.  When the judge denied his motion, he waived his right to jury trial and was convicted after a bench trial.  State v. Melchert-Dinkel, supra.  

On appeal, he claimed he statute was unconstitutional (i) “on its face because it is overbroad” and/or (ii) because his discussions with Drybrough and Kajouji were speech protected by the 1^st Amendment, so that even if the statute is constitutional, it was unconstitutional as applied to “the specific conduct that led to his conviction."  State v. Melchert-Dinkel, supra. 

As Wikipedia notes, there are two ways to challenge legislation: “[A] facial challenge to a statute seeks to invalidate it in its entirety because every application is unconstitutional, whereas an as-applied challenge seeks to invalidate a particular application of a statute.”  So Melchert-Dinkel was trying both.

The Court of Appeals began its analysis of his facial challenge by noting that a statute

ordinarily is presumed constitutional. . . . But this is not so with statutes that restrict 1st Amendment rights; those statutes are not presumed constitutional.  . . . [C]ontent-based regulation of speech is presumptively unconstitutional. . . . The state bears the burden of proving such a statute is constitutional. . . . . Melchert–Dinkel points out the content-oriented nature of § 609.215(1), noting it concerns only the subject of suicide, and on this feature he contends that [it] is presumptively unconstitutional.

State v. Melchert-Dinkel, supra.  The court also explained, however, that his

contention that the statute is presumptively unconstitutional assumes wrongly that [it] regulates the type of speech that does not by its nature fall outside of 1st Amendment protection. The 1st Amendment does not protect all speech absolutely. . . . 

It has `never included a freedom to disregard’ certain categories of restrictions the states traditionally have enforced based particularly on the content of the speech. U.S. v. Stevens, 130 S. Ct. 1577 (2010). . . The categories of speech that have been deemed not to implicate the 1st Amendment are obscenity, defamation, fraud, incitement, speech integral to criminal conduct, and fighting words.

State v. Melchert-Dinkel, supra. 

The Court of Appeals found § 609.215(1) did not violate the 1^st Amendment because “because, to the extent it prohibits speech, it prohibits speech that is integral to harmful, proscribable conduct.”  State v. Melchert-Dinkel, supra. It pointed out that while committing suicide “is not itself a crime in Minnesota”, this does “not reflect a public policy approving suicide or tolerating assisted suicide.”  State v. Melchert-Dinkel, supra. 

And after noting that Melchert-Dinkel did not claim “the state would violate the Constitution by punishing a person for physically assisting another to commit suicide”, the court found “speech that intentionally advises, encourages, or assists another to commit suicide is an integral part of the criminal conduct of physically assisting suicide.” State v. Melchert-Dinkel, supra.  It also found that “such speech is an integral part of another person’s suicide” and suicide “remains harmful conduct the state opposes as a matter of public policy.”  State v. Melchert-Dinkel, supra.  The court therefore held that, given all this, the state can “criminalize the prohibited speech without running afoul of the 1^st Amendment.”  State v. Melchert-Dinkel, supra. 

The court then addressed Melchert-Dinkel’s second argument:  that the statute was unconstitutional “because some of its reach extends into speech that is protected by the 1^st Amendment.”  State v. Melchert-Dinkel, supra.  It rejected that argument because it found that § 609.215(1)

expressly prohibits only a narrow type of speech -- speech that intentionally advises, encourages, or assists another in that person's suicide. Paraphrased, a person cannot speak in a manner that purposefully urges or helps another person to kill herself. 

State v. Melchert-Dinkel, supra.  It noted that the statute’s narrow focus means it does not outlaw speech that promotes “suicide acceptance”, advocating for a right to commit suicide, protecting laws that oppose suicide, etc.  State v. Melchert-Dinkel, supra.

The Court of Appeals also rejected Melchert-Dinkel’s argument that applying the statute

`proscribe[s] discussion about the topic [of suicide] and hanging, and wanting to watch.’ But we do not see this restriction in the statute, which does not on its face proscribe discussion of suicide or hanging so long as the speaker does not advise or encourage or help another to commit suicide. 

A suicide advocate or opponent may discuss suicide as thoroughly as he prefers; he simply may not . . . advise a suicidal person to hang herself or encourage or help her do so. And as disturbing as the idea might be, the statute also does not prohibit a person from discussing his desire to watch someone else commit suicide.

State v. Melchert-Dinkel, supra. 

The court did note that the state might violate the 1^st Amendment if its statute

punished speech that only theoretically and indirectly encourages suicide but creates no direct connection between the prohibited speech and the harmful conduct. . . . So, . . . the government does not overcome a free-speech challenge to a statute that bans virtual child pornography on the theory that pedophiles might use the virtual child pornography to encourage children to participate in sexual activity. . . .

But § 609.215 does not raise that concern. Its elements allow punishment only when a direct rather than theoretical or indirect connection links the prohibited encouragement conduct (intentionally encouraging suicide) and the harm to be avoided (the actual suicide of the person whom the defendant intentionally encouraged to kill herself). . . . 

By punishing a person for engaging in speech that intends to influence another to commit suicide only when the other person actually commits suicide, the statute penalizes only speech that is integral to the harmful conduct that the state seeks to prevent.

State v. Melchert-Dinkel, supra (emphasis in the original).

As this recent news story explains, Melchert-Dinkel is taking the issue to the Minnesota Supreme Court, and will remain out on bail until the appeal is heard and determined.  It also notes that he “faces about a year in jail” if the conviction is not reversed.    

And if you want to read more about him and about his involvement in the Kajouji and Drybrough suicides, check out Wikipedia’s entry on him.

(And, as a footnote, suicide is not a crime in Minnesota or in any other U.S. state, as I explained in a post I did several years ago.  Statutes like the one at issue here are basically aiding-and-abetting-what-is-not-a-crime statutes, as I also explained in that post.)