Chicago-Kent Law Review Volume 87 Issue 2 Women's Legal History: A Global Article 17 Perspective April 2012 Dueling Values: The Clash of Cyber Suicide Speech and the First Amendment Thea E. Potanos Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Constitutional Law Commons, First Amendment Commons, and the Internet Law Commons Recommended Citation Thea E. Potanos, Dueling Values: The Clash of Cyber Suicide Speech and the First Amendment, 87 Chi.- Kent L. Rev. 669 (2012). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol87/iss2/17 This Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. DUELING VALUES: THE CLASH OF CYBER SUICIDE SPEECH AND THE FIRST AMENDMENT THEA E.POTANOS* INTRODUCTION** Societies now face a grave ethical dilemma in relation to the internet. Western societies pride themselves on freedom of speech, yet here we have a medium which has the potential to circumvent the tradi- tional social controls.1 Late on March 9, 2008, Canadian college student Nadia Kajouji left the warmth of her Carleton University dorm room, walked to a nearby bridge, and jumped to her death in the icy Rideau River.2 Six weeks later, during the spring thaw, her body was found.3 She was not yet nineteen.4 In the days before her death, Kajouji, who had spiraled into depression after a romantic breakup and a miscarriage, researched suicide methods online.5 A forensic search of her computer later re- vealed that she had asked for advice at the pro-suicide newsgroup alt.suicide.holiday, writing that she had been depressed for as long as she could remember, was terrified her suicide attempt would fail, and wanted a "quick out" with "the highest chance of success."6 Cami, a young and sympathetic nurse, also suicidal, was one of those who responded. Cami proposed that she and Nadia enter into a * J.D., Chicago-Kent College of Law, 2011; B.A., Columbia University, 1995. The author is a former member of Lyric Opera of Chicago's young artist program and has sung leading and sec- ondary roles with various U.S. opera companies. A huge thank you to Professor Steven Heyman for his invaluable help in conceptualizing this Note, and to Sam Coe and Andrew Jung for their patience and constructive comments. ** In December 2011, a prepublication draft of this note was made available to the Assis- tant Rice County Attorney in connection with preparation of the state's appeal brief for State v. Melchert-Dinkel, filed January 30, 2012. 1. Pierre Baume, Christopher H. Cantor & Andrew Rolfe, Cybersuicide: The Role of Interac- tive Suicide Notes on the Internet, 18 J.CRISIS INTERVENTION & SUICIDE PREVENTION 73, 78 (1997). 2. Beth Johnston, Man Allegedly Coaxed Canadian's Suicide, OTTAWA SUN, Feb. 26, 2009, http://cnews.canoe.ca/CNEWS/Crime/2009/02/26/8538881-sun.html. 3. Id. 4. State v. Melchert-Dinkel, No. 66-CR-10-1193, slip op. at 15 (D. Minn. Mar. 15, 2011). 5. Kajouji's Video Diary Shows Path to Suicide, CBC NEWS CANADA, http://www.cbc.ca/news/canada/ottawa/story/2009/10/09/ottawa-kajouji-fifth-estate-diary- suicide.html (last updated Oct. 9, 2009). 6. Melchert-Dinkel, No. 66-CR-10-1193, at 15-16. 669 670 CHICAGO-KENT LAW REVIEW [Vol 87:2 suicide pact and tried hard to persuade Nadia to hang herself.7 It was quick, painless and effective.8 She told Nadia what kind of rope to buy and where to get it, and said that if Nadia had a web cam, she, Cami, could watch to make sure that Nadia positioned the rope just right.9 Once Nadia was dead, Cami would hang herself.io Eventually, the police discovered that "Cami" was one of several online aliases used by William Melchert-Dinkel, a forty-seven year old nurse from Minnesota who has characterized himself as having an "ob- session" with suicide.11 Some two years after Nadia Kajouji died, the state of Minnesota charged Melchert-Dinkel with two counts of assist- ed suicide in connection with her death and the 2005 death of Mark Drybrough, a British man who hanged himself by following detailed instructions allegedly provided by Melchert-Dinkel in an email.12 In the past decade, thousands of readily-accessible, suicide-related web sites have proliferated on the internet.13 Many of these sites are "pro-suicide"-that is, they do not seek to prevent suicide but accept it as a viable life choice, may facilitate suicide pacts, and may allow the exchange of detailed information on suicide methods to flow un- 7. Id. at 16-19. 8. Id. at 23. 9. Id. at 21. 10. State's Omnibus Brief at 2, Melchert-Dinkel (No. 66-CR-10-1193). 11. Complaint & Statement of Probable Cause at 3, Melchert-Dinkel (No. 66-CR-10-1193). 12. Id. at 1. In March 2011, the trial court convicted Melchert-Dinkel of two counts of assist- ed suicide under Minnesota Statute 609.215, rejecting the argument that his speech was protect- ed by the First Amendment. Melchert-Dinkel, No. 66-CR-10-1193, at 31-32, 41-42. On November 4, 2011, Melchert-Dinkel filed an appeal with the Minnesota Court of Appeals. He argues that "the trial court created a new category of prohibited speech, in violation of U.S. Supreme Court rul- ings." Ex-nurse Appeals Encouraging Suicides Conviction, CBS MINNESOTA.COM, Nov. 4, 2011 http://minnesota.cbslocal.com/2011/11/04/ex-nurse-appeals-encouraging-suicides- conviction/. The case is State v. Melchert-Dinkel. See Minn. App. Ct. Case Mgmt. System, http://macsnc.courts.state.mn.us/ctrack/publicLogin.jsp, Case No. A110987. 13. Adekola 0. Alao et al., Cybersuicide: Review of the Role of the Internet on Suicide, 9 CYBERPSYCHOL. & BEHAv. 489, 490 (2006) (stating that "[t]here are more than 100,000 web sites on the internet that deal with methods of committing suicide"); see also Recupero et al., Googling Suicide: Surfing for Suicide Information on the Internet,69 J. CLINICAL PSYCHIATRY 878, 878 (2008) (stating that "[t]he internet... features numerous resources for the suicidal person, ranging broadly from support groups or crisis intervention sites discouraging individuals from commit- ting suicide to pro-suicide groups and how-to-suicide instructions that would not otherwise be easily accessible to the average suicidal person"); Lucy Biddle et al., Suicide and the Internet,336 BRIT. MED. J. 800 (2008). Biddle and her colleagues hypothesized that "most people use [popular] search engines" and "rarely look beyond the first page of results," and conducted simple searches for suicide methods using several popular search engines. A review of the first ten hits from each search yielded 240 discrete sites, ninety of which "were dedicated suicide sites. Half of these were judged to be encouraging, promoting or facilitating suicide." 2012]1 CYBER SUICIDE SPEECH AND THE FIRST AMENDMENT 671 checked through message boards, chats and emails.14 Disturbing as this is, no current law explicitly prohibits it, even though media reports and small-scale case studies in the psychiatric literature suggest a di- rect link between visits to suicide chat rooms and completed sui- cides.is This Note will explore how some speech which would otherwise be punishable currently flourishes unchecked on the internet, thus "circumvent[ing] [] traditional social controls."16 Application of assist- ed suicide laws to cyber speech may occur infrequently. But where it does, punishment of this speech should not automatically be foreclosed by the First Amendment. Assisted suicide is currently unlawful in the majority of states, as it has been for hundreds of years in Anglo- American society. The First Amendment has never protected speech which is an integral part of criminal conduct,17 and that principle should not be changed for cyber speech. Part I of this Note provides background information on suicide- related cyber space. Part II summarizes relevant First Amendment and assisted suicide law. Part III analyzes two kinds of suicide-related cyber speech-encouraging suicide, and assisting or "teaching" suicide by providing detailed suicide methods-and explores how they fare under several traditional First Amendment doctrines. It concludes that suicide-related cyber speech should not be analyzed under the Court's test for illegal advocacy; rather, speech which counsels or encourages suicide-including cyber-suicide speech-should be identified as a traditional category of unprotected speech, or, alternatively, analyzed under strict scrutiny. Part IV presents a brief conclusion. 14. See, e.g., Recupero, supra note 13, at 879 (noting the existence of "pro-suicide or 'pro- choice' suicide forums that not only avoid discouraging [users] from suicide, but sometimes go so far as to provide them with step-by-step suicide instructions or with the necessary means and encouragement to carry out a suicide attempt."); Baume, supra note 1, at 77 (hypothesizing that young man participating in suicide newsgroup "may have felt compelled by his internet participa- tion to follow through with suicide," and positing that "were it not for his public commitments he might have been able to adopt a more constructive approach to problem-solving without losing face."). See also About ASH, http://ash2.wikkii.com/wiki/AboutASH (last visited Oct. 4, 2010) (stating that purpose of the web site is "to provide suicidal people and those suffering from a severe physical illness with the ability and freedom to make a fair, well-informed and unforced choice about whether they should live or die.").