The Constitution is not a Suicide Pact: The questions and perhaps answers regarding The Serial Suicide Killer’s First Amendment Rights can be found in a statement by Abraham Lincoln
Life is often times filled with many ironies accentuated by the intersecting of seemingly unrelated events and elements that transcends both time and perhaps – at least on the surface, logic.
Let’s consider the case of William Melchert-Dinkel, who faces trial for coaxing two individuals over the Internet to commit suicide and, by his own admission, encouraging dozens of others to follow suit while having the audacity to suggest that they take their lives in front of their web cam for his viewing pleasure.
Taking into account the fact that Melchert-Dinkel violated Minnesota’s assisted suicide law, as well as the laws of the countries of which the two victims were citizens (Canada and the UK), one would not unreasonably believe that this is a fairly straight forward case.
Especially when even those organizations that advocate a persons right to die and support assisted suicide such as Compassion and Choices (formerly the Hemlock Society), have distanced themselves from him as well as his actions.
However, and as those experienced in the law will tell you, rarely if ever is the route from trial to justice a straight one. A point I had emphasized in my August 25th post “Is The Internet A Safe Haven For Serial Killers,” when I wrote the following:
“Given the complexities of the laws involving Internet crime, especially spanning numerous international jurisdictions, there is a very real possibility that Melchert-Dinkel may indeed walk.”
Citing everything from a violation of his right to free speech and what his lawyer Terry Watkins refers to as the vague use of the law and that as a result there is a lack of probable cause, an acquittal despite the admission and corroborating evidence could happen.”
It would appear that there are legal experts who would support Watkins in his position, as well as even those in the media such as Mike Masnick.
Masnick, is the founder and CEO of the weblog Techdirt, which focuses on the news and issues associated with the high tech world. He is also known for coining the phrase “The Streisand Effect,” which is a theory that is based on the belief that any “attempt to censor or remove a piece of information has the unintended consequences of causing the information to be publicized widely and to a greater extent than would have occurred if no censorship had been attempted.” Sounds like a great story for another day.
With regard to the Melchert-Dinkel story, and in particular the vagueness of the Minnesota law, Masnick wrote in his May 14th, 2010 post Is It Illegal To Tell People How To Commit Suicide Online?;
“That “advises” part seems especially broad. Again, this is a tricky situation no matter what. It’s certainly difficult to defend this guy and his actions. But, there are larger issues here, concerning freedom of expression and a potentially overly broad law.”
Masnick’s statement immediately turned my attention to what I can only refer to as one of those intersecting ironies, in which a rhetorical phrase attributed to Abraham Lincoln appears to be both timely and applicable. I am of course talking about the phrase “The Constitution is not a suicide pact.”
Given Melchert-Dinkel’s propensity for entering into “suicide pacts” with his emotionally vulnerable victims, while posing as a young female nurse, the Lincoln statement is eerily powerful.
The sentiments behind the term are based on the premise that constitutional restrictions on governmental power must give way to urgent practical needs.
For example, Lincoln used this statement in response to criticism that his suspension of habeas corpus during the Civil War violated the U.S. Constitution.
Throughout history, such collisions between individual rights and freedoms and protecting the greater good of societal interests are nothing new.
North of the 49th parallel for example, many older Canadians will readily recall the time that then Prime Minister Pierre Elliot Trudeau invoked Canada’s War Measures Act following the FLQ abductions of James Cross and Pierre Laporte, and the subsequent death of Laporte at the hands of his kidnappers in 1970.
Note: Just watch me comment at the 44 second mark of video
Trudeau, who had long been a strong advocate of civil liberties, made the iconic statement that still echoes throughout the halls of Canadian politics “Just watch me” when asked by a reporter how far he would go “in the suspension of civil liberties to maintain order.”
Perhaps it is within the context of the willingness on the part of one of our civil rights champions to quickly impose Martial Law to serve the greater good of the nation that makes the strongest argument for those who sought Melchert-Dinkel’s extradition to Canada to face trial.
While there are rumblings that such an effort is currently underway, as it stands today The Serial Suicide Killer is going to stand trial in the United States.
In light of this present reality, U.S. history does give us possible insight into how the question of Melchert- Dinkel’s free speech may be viewed by a U.S. Jury. Although, we should expand this contemplation of response to include the possibility of a Judge rendering a verdict as Nadia Kajouji’s mother, Deborah Chevalier expressed the belief that her daughter’s killer would likely opt for a hearing of his case before a judge only, versus a jury of his peers.
A good starting point as to what jury and or judge may consider is the Louisiana Purchase in 1803.
Even though Thomas Jefferson did not personally believe that the Constitution bestowed upon the government the “right to acquire or possess foreign territory,” he nonetheless signed the treaty.
His reasons, as he would later write, were based on the following;
“a strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”
Using Jefferson as a point of reference, where is the greater danger to society in the case of Melchert-Dinkel?
In more recent times, Terminiello v. Chicago 337 U.S. 1 (1949) presents another compelling point of reference.
A Catholic priest under suspension, Arthur Terminiello criticized various racial groups and made a number of inflammatory comments during a speech to the Christian Veterans of America group.
During Terminiello’s oratory approximately 1,000 people had gathered in protest outside of the hall, and the resulting inability of the Chicago Police Department to maintain order led to his being fined $100 for violation of the City’s Breach of peace ordinance.
Even though the Illinois Appellate Court and the Illinois Supreme Court affirmed the conviction, Terminiello appealed all the way to the U.S. Supreme Court where Justice William O. Douglas ruled in favor of the priest whose anti-Semitic and pro-Nazi rantings had incited the riot in the first place.
In explaining his decision, Justice Douglas expressed the opinion that Chicago’s Breach of Peace ordinance had violated Terminiello’s First Amendment Rights.
Although Justice Douglas “acknowledged that freedom of speech was not limitless” referencing in particular the “fighting words doctrine” associated with Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942), it did not in his opinion apply to the Terminiello case. Not everyone agreed with Douglas’ decision.
One such dissenting voice was that of Associate Justice Robert Jackson, who in a 24 page response wrote;
“The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
This again raises the question with regard to the Melchert-Dinkel case . . . is a “doctrinaire logic” pertaining to the right of free speech overshadowing the practical wisdom to which Jackson was referring?
There is of course no shortage of case references regarding the rights of the individual versus the interests of society as a whole including Kennedy v. Mendoza-Martinez, in which Justice Arthur Goldberg wrote the court’s opinion that “laws permitting stripping draft evaders of their citizenship,” was “unconstitutional.”
I can even think of the 2006 book by Richard Posner titled “Not a Suicide Pact: The Constitution in a Time of National Emergency,” in which the Judge of the United States Court of Appeals for the Seventh Circuit and professor at the University of Chicago Law School wrote “the scope of constitutional rights must be adjusted in a pragmatic but rational manner.”
What the above examples tell me is that even though there is no doubt that individual freedoms are the linchpin of this great nation, the laws of self-preservation and of saving our country when in danger, balanced by practical wisdom in a pragmatic and rational manner would reasonably indicate that we possess another important freedom. The freedom of choice! A freedom which includes the ability to thoughtfully and intelligently apply the very laws that are there to protect us from harm.
In short, people make laws. And through free will and good conscience, the laws exist to serve the people versus the people serving the law.
The only question that remains is not one of lofty legal debate but more specifically, what in both our individual and collective good conscience is a fair outcome for William Melchert-Dinkel and his victims Nadia Kajouji and Mark Drybrough?