An Interesting Professional Speech Case from 10 Years Ago, Involving Speech About Dead Bodies

This is the first time I have seen it, so I decided to pass it on. Schoeller v. Bd. Bd. (Mass. 2012 (opinion of Justice Fernande duffy)

[T]he Board of Registration of Funeral Directors and Embalmers … permanently revok[ed] Troy J. Schoeller’s licenses to do business in the Commonwealth as a funeral director and embalmer … after Schoeller made comments to a newspaper reporter about his experiences in the embalming profession and those comments were later published as part of an article about Schoeller.

Schoeller never revealed any private or confidential information concerning any of the deceased or grieving family members he was serving. The board concluded that Schoeller violated an ethics regulation which prohibits embalmers from making comments.[ing]”239 Code Mass. Regs. § 3.13(7) (1998), and that he had used unprofessional language in his descriptions of dead bodies. Schoeller’s “gross misconduct and unprofessional conduct that undermine the integrity the profession” was ruled by the board. …

The conduct at issue here occurred in late 2006, when a newspaper reporter sought to interview Schoeller about a retail clothing store Schoeller had opened in the Allston section of Boston…. Schoeller gave statements about his experience as an embalmer and was one of the subjects that night. The newspaper published a story about Schoeller about a week later. It included some of his thoughts about embalming.[, including:]

“‘The medical examiner cut all the bones out of this infant …,’ Schoeller recalls, ‘and they did a calvarian, which means they cut the top of your head off and take out your brain. My baby was shaped like a bear-skin rug. In nine hours, I rebuilt it. Everything was used: masking tapes, duct tape, tape for masking, tissue builders, and wound filler. I worked for nine and a half hours…. Then I put coat hangers, caulk, and a small baby costume on him. His head and chest were also packed. He was amazing. …

“Looking over the menu … before his wife arrives, Schoeller says he can’t order the chicken satay here because when he got it last time, the skewered meat had fat chunks on it. He said, “I don’t like eating fat like that.” “I really dislike embalming obese people like those who are 300 pounds or more. When you slice open a fat individual,’ he said matter-of-factly that ‘butter leaks from’. Yellow oil floats on top and leaks from the wound. If you put butter in the microwave and put it in the water, it turns into little balls — fat globules — and that’s what comes out of fat dead people. It’s so nasty.'” …

“On the walk home to the couple’s … apartment, Schoeller thinks of something else to tell me. “Here’s something I find amusing. Methane is released from decomposing bodies. Your body uses methane to make things happen. It puts all of it in one place: your bowels. It smells just like what you used to work on. It’s okay, I’ll get home. [my wife]It will sound like, “Oh my god,” while I’ll say, “That was Mr. Rosenberg!” [a fictitious name -EV].'”

After seeing Schoeller’s statements in the article, the chapel that employed Schoeller as an embalmer terminated his employment and filed a complaint with the board….

This regulation, taken as a whole, will not only prevent funeral directors or embalmers discussing an integral component of the profession in their personal lives but also would ban them from discussing it. Any comment about a deceased’s condition to bereaved family members or to authorities to whom embalmers and funeral directors are required to report. The board has construed § 3.13(7) more narrowly; it submits that the regulation prohibits only the use of “unprofessional language,” which it defines as comments made “in an undignified and salacious manner about the condition of dead bodies.” As construed by the board, § 3.13(7) prohibits an embalmer or funeral director from making any undignified comments about dead human bodies that have ever been entrusted to his or her care, including when made in a private capacity and not as a professional and when the speech is uttered outside of the presence of the deceased or the bereaved….

The analogy might not work, but the regulations regarding funeral professionals’ speech are similar to the ones governing lawyers. These regulations restrict speech in situations where funeral directors or embalmers act directly in their professional capacity. The board found that Schoeller’s speech, which occurred while he was not rendering professional services, violated § 3.13(7) and “constituted misconduct that undermined the integrity of the profession.” Whether the board may permissibly regulate speech in this context — where the speaker is not acting in his or her professional capacity — turns on whether the restriction is narrowly drawn and whether the board’s interest is sufficient to require that the First Amendment interests at stake must “give way to other compelling needs of society.”

Here, the board has proposed that the compelling societal need to which speech rights must give way is the integrity of the funeral services profession…. It was noted that the Legislature allowed funeral directors and embalmers to use “profane indecent or obscene language” when acting as professionals. This restriction could be detrimental to the integrity of funeral services. We have recognized in other contexts that there is a “special sensitivity” required in the processing and handling of a deceased human body,  and that funeral services “are always rendered and most often contracted for under emotional circumstances.”

The board proposes that these interests require the broadening of limitations on the speech of embalmers and funeral directors to include comments made outside of funeral homes, and would extend the prohibition to comments made by embalmers and funeral directors in any context…. As we have described, however, regulations that attempt to limit the speech of licensed professionals when acting outside of their professional capacity must be narrow, and applied with precision to the type of speech that the board has a legitimate interest in regulating…. [W]e conclude that the board’s generalized interest in maintaining the integrity of the profession cannot outweigh the First Amendment rights of embalmers and funeral directors when acting outside of their professional capacity; and, even if the board’s interest could outweigh those First Amendment rights, § 3.13(7) is not sufficiently narrow to achieve that end.

There are many examples in the record of situations where the regulation of the board could be considered constitutionally protected speech. This can expose funeral directors and embalmers to possible discipline due to the ban on “unprofessional” and “undignified comments. These examples include articles published in professional magazines in which funeral service professionals comment on deceased bodies’ condition in graphic terms some may subjectively consider as unprofessional. {One article in this vein describes the effects of high heat on bodies that resulted in skin slippage that ultimately led to the deaths. An embalmer from Massachusetts provides a tip in another article: A dull [instrument]The cavity chemical will not be able to get into your body. [hollow organs]It may not be able to perform its task, which could lead to gas buildup. Another article describes the restoration of disfigured corpses. It also includes a description on the appearance of bodies that were shipped overseas. The condition of the body “wasn’t good…. The facial tissues were beginning to fall apart from the initial stages of decomposition. A single article is dedicated to reconstructing the faces of teenage boys who had been affected by large tumors. The author writes that the distortion of his face was, and probably will continue to be, the most horrifying thing he’s ever witnessed in his life. The author described the “tissues throughout the body” as “spongy and breaking down from the effects of drug treatment,” and proposed a procedure he had found useful in the circumstances to get “better control of the head.”} … Like these authors, Schoeller did not identify a particular deceased person or reveal confidential information about any decedent’s family. His comments described in detail the process of embalming the dead, an area recognized by the profession as one about which the public knows little and should be more informed….

In summary, while there may be circumstances in which the board can appropriately seek to limit the speech rights of licensed funeral directors and embalmers, in proscribing all “undignified” comments, the board has “traveled in the constitutionally unacceptable direction,”  of banning a substantial amount of protected speech. The board cannot apply § 3.13(7) to restrict such a wide range of speech, nor may it limit that speech by relying on a generalized notion of the integrity of the funeral services profession.