Supreme Court cert decision due in Michelle Carter case.

Byline: Kris Olson

Michelle Carter, who was convicted of involuntary manslaughter for in the words of the Supreme Judicial Court overcoming her 18-year-old boyfriend's "willpower to live," may know by the time this story is published if the U.S. Supreme Court intends to hear her appeal.

Carter's cert petition and Attorney General Maura T. Healey's opposition to it were scheduled to be discussed at the Supreme Court's Jan. 10 conference. If the case follows the normal course, its disposition would be revealed in an order list issued at 9:30 a.m. on Jan. 13.

But some court watchers think the court may well decide to hold Carter v. Massachusetts, revisiting the decision of whether to grant cert once it resolves a potentially related case out of the 9th U.S. Circuit Court of Appeals set to be argued on Feb. 25, United States v. Sineneng-Smith.

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"Many observers rightly believe the distinction between conduct and speech, which is at the center of the conflict in this case, is incoherent, with courts able to decide in their discretion whether speech is incidental or essential to a criminal act."

Northeastern Law professor Michael Meltsner

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At issue in Sineneng-Smith is the federal law prohibiting "encouraging or inducing illegal immigration for commercial advantage or private financial gain." Like Carter, the case involves "speech integral to criminal conduct," which the court has said lies outside the boundaries of First Amendment protection.

"The court might say, 'Let's see how [Sineneng-Smith] shakes out, and if we say something useful, give the Massachusetts Supreme Judicial Court another chance to revisit [Carter] in light of our teachings,'" said UCLA law professor and First Amendment scholar Eugene Volokh.

If instead the court decides Sineneng-Smith on a theory less instructive for Carter, Michelle Carter may then get her day before the high court.

Boston University School of Law professor Gerald F. Leonard agrees that Sineneng-Smith and Carter both offer the Supreme Court the opportunity to work out the First Amendment limits on criminalization in a couple different statutory contexts.

But whether the court views Carter as a good companion to Sineneng-Smith or merely redundant remains to be seen.

"I could see them deciding that Sineneng is enough for them to get at the issue, or that their interest in Sineneng is driven by an interest in the federal immigration statute in that case and that they really aren't interested in state manslaughter cases like Carter," Leonard said.

But in addition to the importance of the issues involved in Carter, the fact that there may be a "sequel" Suffolk County District Attorney Rachael S. Rollins' recent...

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