ATLANTA — Georgia's top court is considering a high-profile debate over whether a state law designed to discourage assisted suicides also violates free speech rights.
The arguments came before the Georgia Supreme Court on Monday after years of litigation between state authorities and four members of the Final Exit Network charged with breaking the law for helping a 58-year-old cancer-stricken man die.
Defense attorneys contended at oral arguments that the 1994 state law used to charge the four violates First Amendment rights and should be struck down by the justices. If the government was interested in preventing suicide, defense attorney Robert Rivas argued, then lawmakers should have adopted a law specifically outlawing it.
But prosecutors countered that the Georgia law doesn't infringe on the speech rights of people who support assisted suicide, only those who take concrete steps to carry one out. Forsyth County District Attorney Penny Penn argued that Georgia law doesn't even ban assisted suicide — as long as it's not being publicly advertised.
The four members of the network were arrested in February 2009 after John Celmer's death at his north Georgia home. They were arrested after an eight-month investigation by state authorities, in which an undercover agent posing as someone seeking to commit suicide infiltrated the group.
A grand jury in March 2010 indicted Ted Goodwin, the group's former president; group member Claire Blehr; ex-medical director Dr. Lawrence D. Egbert; and regional coordinator Nicholas Alec Sheridan. The four pleaded not guilty to charges that they tampered with evidence, violated anti-racketeering laws and helped the man kill himself.
The four hired a host of well-known defense attorneys, who soon took aim at what they believed to be the weak point in the case: The Georgia law that makes it a felony for anyone who "publicly advertises, offers or holds himself or herself out as offering that he or she will intentionally and actively assist another person in the commission of suicide and commits any overt act to further that purpose."
They claimed it violated their free speech rights because instead of criminalizing suicide or assisted suicide, it bans people from publicly speaking about assisted suicide and then participating in the death. They asked a Forsyth County judge in December to dismiss the charges on free speech grounds.
The judge rejected the request in April, ruling that "pure speech is in no way chilled or limited by the law." The case was sent to the Georgia Supreme Court, which is expected to release a ruling within months. The case, which is closely watched by legal observers and right-to-die advocates, could not only decide the future of the prosecution but also reshape Georgia's end-of-life policy.
Penn, the Forsyth prosecutor, argued the law doesn't remotely infringe on free speech rights because advocates can broadcast their views about assisted suicide as long as they don't take action. She said the law was aimed at preventing assisted suicides from the likes of Dr. Jack Kevorkian, the late physician who sparked the national right-to-die debate.
"The concern is not with a private actor — a family, a friend, a clergy member," said Penn, who said "privately offered" assisted suicides would likely be tolerated under the law.
Rivas, the defense attorney, said the law should be struck down because it doesn't pass the First Amendment's "smell test." He said the law punishes only those involved in assisted suicides if they speak publicly about it, but does nothing to block an assisted suicide from being carried out by friends, families, or even a sworn enemy or prospective heir.
"If Georgia had any interest in the prevention of assisted suicide, Georgia law would simply prohibit it," he said.