Should It Be Illegal to Tell Someone to Kill Themselves?

Last week, game developer Rachel Bryk died by suicide. Bryk, who was transgender, had been actively goaded on 4chan to kill herself, and in a pretty perfect portrait of how that particular site remains the congealed matter at the bottom of the sewer of the Internet, a thread entitled “Where were you when Rachel died?” sprung up shortly after news of her death broke. (Warning: that link, unsurprisingly, contains some pretty awful transphobia.) If that’s not a depressing enough portrait of online culture, here is Bryk’s Ask.fm page, where, among other things, people actively and maliciously urge her to carry out her suicide threats. Which she did. The whole story is upsetting, tragic, and thoroughly depressing.

I first heard of Bryk’s death via Online Abuse Prevention Initiative founder Randi Harper’s Twitter feed, where she raises a question that is rarely asked:

Is Harper right? Should it be illegal to tell someone to kill themselves, and/or should someone making such a statement face legal consequences if the person they tell to kill themselves actually does so?

The question this immediately raises, of course, is one of freedom of speech. But freedom of speech has never been absolute. The classic example (albeit a rather vexed one, given that it was originally used in a case about whether or not opposing the draft was permissible free speech) is that you can’t falsely yell “Fire!” in a crowded theater. The reasoning is simple: you’re saying something malicious in an attempt to bring harm to people. The actual legal position in the US is subtly different: Brandenburg vs. Ohio (1969) held that banned speech is “that which would be directed to and likely to incite imminent lawless action.”

This can include incitement to violence: violence is illegal, and thus incitement to violence can satisfy the test of “incit[ing] imminent lawless action,” with the caveat that the “imminent” question is relevant here. No one’s suggesting that killing yourself is illegal, so there’s no question at the moment that I can jump online and tell a vulnerable person to kill themselves, and avoid any sort of legal consequences. Should I be able to do so? That’s a different question. There’s a very American aversion to the idea of any sort of speech being criminalized — it seems to fly in the face of the idea that American citizens should be able to say whatever they want, free of oversight by an overbearing government.

America’s high courts are still debating the legality of online death threats. You might argue, however, that trying to convince a person to kill themselves via online harassment is just as harmful — moreso, even, since you can make a death threat without any intention to follow through on it, whereas you have no control over the result of an exhortation to suicide. Clearly, these are different situations: there’s a significant difference between, say, urging a suicidal person on a bridge to jump and pushing them yourself. The fundamental difference here is one of agency: if you push someone, you’re one who has caused their death, whereas if you convince someone to jump, their death is ultimately a result of their own actions. That’s why killing someone is murder, and convincing them to kill themselves is not. But should it be something that should be entirely free of legal consequence?

Freedom of speech aside, there’s also an instinctive aversion to the idea of suggesting that you can be held responsible for the actions of another. But again, this isn’t exactly without legal precedent. There are plenty of cases where people have filed lawsuits against several defendants for the actions of a single defendant, the implication being that the other defendants were responsible for the harm caused even if they didn’t actually carry out the damaging action themselves. (See here, for instance.) There are also cases on record where relatives of someone who has killed themselves have sued someone for “causing” the suicide, and it doesn’t exactly take impressive mental gymnastics to suggest that there might be a chain of causation between saying “you should kill yourself” and the person to which you’re saying this proceeding to kill themselves.

In a purely moral sense, it’s worth considering whether there might ever be a situation in which incitement to suicide might be morally acceptable. There are cases when killing, after all, is justified: self-defense, the defense of others, etc. One might envisage a situation where, say, a woman is married to a man who is both violently abusive and periodically suicidal; by encouraging his desires to cause his own death, she would effectively be acting in self-defense. But even so, that’s not an argument against any sort of law existing at all — after all, the fact that there are circumstances in which homicide is justified doesn’t change the fact that homicide is fundamentally illegal.

Perhaps the best way to answer this question is to think about what law is for. At its most fundamental level, the law exists as part of a social contract, wherein we surrender some part of our liberty in order to be provided with safety and security. This was put most succinctly by John Stuart Mill in On Liberty, wherein he argued that, “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” This idea, which Mill called the “harm principle,” underpins many of the tenets of liberal democracy. Free speech advocates might argue that restricting someone’s right to speak is causing them harm; but what is the law for if not to protect the most vulnerable?

All of which boils down to this fact: words have consequences, and speech carries with it responsibilities. Too often the First Amendment is used as a knee-jerk justification for abrogating those responsibilities — especially online, where anonymity means that pretty much any semblance of human decency is abandoned. People who are suffering from mental illness and/or are suicidal are among the most vulnerable members of our society, and it should be those people the law aims to protect. And if you’re heartless and irresponsible enough to tell a clearly suicidal person to kill themselves, then damn right you shouldn’t walk away without any consequences.

Anyone who is suicidal may receive immediate help by logging onto Suicide.org or by calling 1-800-SUICIDE. Suicide is preventable, and if you are feeling suicidal, you must get help immediately. You can visit Suicide.org or call 1-800-SUICIDE 24 hours a day. You can also call the LGBT National Helpline (888-843-4564 / 800-246-7743 (youth)), or the Trans Lifeline (877-565-8860 in the US, 877-330-6366 for Canada.)