Wednesday, February 29, 2012

'It's A Sunshine Day' in Mass. Federal Court

NEW YORK, NY - OCTOBER 15:  Singer Elle Varner...Image by Getty Images via @daylife"Steal My Sunshine" sang Len in 1999. A New York-based performance artist has filed suit in the United States District Court for the District of Massachusetts alleging that two entertainment companies have done just that.

In Maya Hayuk v. RCA Records, Inc. & Sony Entertainment, Inc. (Case No. 12-cv-10357), the plaintiff alleges a work of art she created in September 2010, entitled "Sunshine" that figured prominently in a music video of the same name by Rye Rye was used without her permission in an October 2011, music video "I Only Want to Give It to You" by Elle Varner.

Hayuk's six-page complaint alleges copyright infringement (17 U.S.C. sec. 101 et seq.) and seeks attorneys' fees, statutory damages, an injunction against the defendants and impoundment of the Varner video. To paraphrase Bill Withers, "Ain't No Sunshine" (without pay).

Tip of the hat to Courthouse News Service, which first reported on this case.
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Tuesday, February 28, 2012

UPDATE: Ind. Appeals Court Asks Trial Judge to Review Order Unmasking Anonymous Blogger

The Indianapolis StarImage via WikipediaThe Indiana Court of Appeals last week ordered Marion County Superior Court Judge S.K. Reid to review her ruling last March to compel the Indianapolis Star to identify an online anonymous poster whose comments are part of an ongoing defamation suit (see "TUOL" post 3/4/11).

The Indianapolis Business Journal reported that to preserve the proper balance between First Amendment-protected anonymous speech and unprotected defamatory speech,  the appellate court ordered Judge Reid to apply the test articulated by a New Jersey appellate court in Dendrite International Inc. v. Does 1-14, 2001 WL 770406 (N.J. Super. A.D.) (Case No. A-2774-00T3). Under the five-part Dendrite test, a party seeking to identify an unnamed Internet poster, must: (1) try to contact the poster and allow the person a reasonable amount of time to respond; (2) identify the poster's precise statement(s) at issue; (3) state a prima facie case in his or her complaint; (4) present sufficient evidence concerning each element of his or her claim; and (5) the court must balance the First Amendment interest in anonymous speech against the strength of the prima facie case and the necessity of disclosure of the anonymous individual's identity. Adapting the Dendrite standard to comply with Indiana law, the Appeals Court is requiring supporting evidence only for the elements of  of the prima facie case that are not dependent on the identity of the poster.

In her initial ruling, Judge Reid said Indiana's shield law [Ind. Code sec. 34-46 1,2] did not protect media defendants against having to divulge the identity of an anonymous blogger who is a potential defendant in a defamation suit. The Star was the lone media outlet among  the Indianapolis Business Journal and WTRV-TV Channel 6 that refused to comply with Judge Reid's ruling to identify individuals who posted comments on the media entity's Website.

The Indiana appellate court said a crucial question in the case is whether the pseudonymous commenter DownWithTheColts is the source of any information given to a news outlet under the Hoosier State's shield law. The appellate panel found DownWithTheColts' comments libelous, but noted that the plaintiff in the underlying defamation suit, Jeffrey M. Miller, former CEO of Junior Achievement of Central Indiana, had yet to prove that the offending statement was false and published with actual malice.

In the appellate decision, Indiana Court of Appeals Judge Nancy H. Vaidik wrote: “While we do not want defamatory commenters to hide behind the First Amendment protection of anonymous speech, we must balance the prospect of too readily revealing the identity of these anonymous commenters.”

The Appeals Court remanded the case to Judge Reid to determine under the jerry-rigged Dendrite test whether Miller meets the requirements to unveil DownWithTheColts.
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Monday, February 27, 2012

Lawsuit Follows When Twitter Followers Follow Tweeter to New Job

phonedogphonedog (Photo credit: Brad Weikel)In a 13-page complaint filed in the United States District Court for the Northern District of California alleging misappropriation of trade secrets, conversion and intentional interference with prospective economic advantage, a Delaware corporation based in Mt. Pleasant, South Carolina, is suing its former editor and video blogger who jumped to a rival company with 17,000 Twitter followers in tow.

USA Today reported on the case, PhoneDog, LLC v. Noah Kravitz (Case No. 3:11-cv-03474), in which the plaintiff, an 11-year-old company that provides information, news and reviews concerning phones and related technology, sued the defendant, who went to work in December 2010, for PhoneDog rival TechnoBuffalo. Not to go off-topic, but what is this technogeek obsession with the animal kingdom?

According to the lawsuit, PhoneDog has analogized Kravitz's  faithful Twitter followers to a proprietary customer list and wants the defendant to kick in $340,000, or $2.50 apiece for the 17,000 followers over an eight-month period. The plaintiff's Website also asserts that the defendant previously promised not to use the Twitter account to say sweet things about technology companies other than PhoneDog.  Kravitz contends PhoneDog over-inflated the worth of the followers, and that Twitter, not PhoneDog, is the true owner of the Kravitz account at issue.

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Fox News: Facebook Means 'Business' Peeking at Smartphone Users' Text Messages

Česky: Logo Facebooku English: Facebook logo E...Image via WikipediaAs it readies its own personal messaging service, social media monolith Facebook's research apparently includes poring over smartphone users' text messages, according to a London Times' article cited by Fox News.

Smartphone users of the Facebook app have been providing helpful intelligence to the social networking platform. Facebook offered assurance that users will be prompted to grant permission for the company to access personal text messages once Facebook's message service goes beyond the trial phase and is up and running. The Fox News story, however, notes a London Times-commissioned survey by YouGov in which 70 percent of smartphone users polled admitted they never review terms and conditions of use when downloading an app.

From a privacy standpoint, Facebook's "it's just business" rationale is akin to a locksmith walking in on people showering in their homes as part of his research into developing a better bathroom door lock.
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Pacific Paywall: LA Times Online Adds Subscription Fee in March

Partial front page of the Los Angeles Times fo...Image via WikipediaBeginning March 5, visitors to the Los Angeles Times online edition can only read 15 free articles a month before having to pony up for a subscription.

After a special introductory four-week subscription rate of 99 cents, online readers will be asked to pay $1.99 a week to read the Times' daily and Sunday edition, the paper announced last Friday. Subscribers to the print version of the daily can access the online edition free of charge. Digital-only viewing cost $3.99 a week.

Besides erecting a paywall, the Times print version is consolidating its Food, Home and Health sections into a Saturday "Lifestyle" section.

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Friday, February 24, 2012

Mug Shots Not for Public Consumption, Appeals Court Rules

Seal of the United States Court of Appeals for...Image via WikipediaIn World Publishing Co. v. U.S. Department of Justice (Docket No. 11-5063), the United States Circuit Court of Appeals for the Tenth Circuit this week unanimously decided that prisoner "mug shots" are not subject to production under the Freedom of Information Act [5 U.S.C. sec. 552 et seq.].

As reported by the plaintiff Tulsa World, the 10th Circuit three-judge panel in a 15-page decision joined their brethren on the 11th Circuit Court of Appeals in ruling that inmates' photos are exempt under the federal act.  The United States Court of Appeals for the Sixth Circuit previously reached the opposite conclusion, suggesting that the issue may reach the Supreme Court sooner or later.

The Tulsa daily sought mug shots of six prisoners, arguing that the proliferation of camera phones, video and the like in modern society serve to diminish the prisoners' expectation of privacy, but the 10th Circuit wasn't buying. In fact, Judge Paul Kelly turned the World's argument around, noting that the widespread availability of photos elsewhere negates the paper's need for the prisoner photos.

The appeals court upheld the ruling of United States District Court for the Northern District of Oklahoma Judge Terence Kern, who last year exempted federal inmate mug shots under the FOIA. The Tulsa World sued the U.S. Marshalls Service in 2009 to obtain the photos.
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Thursday, February 23, 2012

Knox Appeals Slander Conviction

PERUGIA, ITALY - NOVEMBER 24:  Amanda Knox spe...Image by Getty Images via @daylifeFive months after an Italian appellate court overturned her 2009 murder conviction in the brutal 2007 slaying of her English roommate Meredith Kercher, 24-year-old Amanda Knox is asking the appeals court in Perugia, Italy, to reverse a slander conviction.

According to online stories by Reuters and MSNBC, Knox, a former University of Washington student currently living in Seattle, was on the wrong end of an action for slander brought by Diya "Patrick" Lumumba, a bar owner whom she implicated in Kercher's death. He was released after two weeks' incarceration for lack of evidence.  Knox claims police, during their interrogation, coerced her into pointing the finger at Lumumba, according to press accounts.

No timetable has been set for when the Perugia court will take up the appeal.

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Publisher Projects Paywall Proliferation

Gannett Logo used until March 2011.Image via Wikipedia"Good fences make good neighbors," poet  Robert Frost wrote in Mending Wall (1914), but McLean, Virginia-based media conglomerate Gannett Co. believes the 80 paywalls it plans to erect by the end of 2012 for the online editions of the 80 community newspapers it owns will make annual subscription revenues climb 25 percent.

Forbes Magazine reported yesterday that Gannett's Robert Dickey, president of community publishing, said a metered payment system will be in place for Gannett newspapers that likely will offer from five to 15 free articles monthly before Website visitors have to pay for content. Presently, six Gannett dailies have digital paywalls in place (see "TUOL" post 7/1/10).

The Forbes article noted that Gannett's leaky flagship, USA Today, will not follow the paywall route of its sister publications for now, as the nationwide paper is in the throes of upgrading and making over its Website.
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Wednesday, February 22, 2012

UPDATE: Public Giggs

LONDON, ENGLAND - MAY 28:  Ryan Giggs (L) and ...Image by Getty Images via @daylifeWelsh soccer star Ryan Giggs, Manchester United's left-winger, this week in London's High Court consented to lifting the anonymity injunction issued last April by Mr. Justice (David) Eady that prevented The Sun from identifying him as the married celebrity allegedly romantically involved with Imogen Thomas, the former Miss Wales and Big Brother competitor.

The Guardian reports that Mr. Justice (Michael) Tugendhat noted anonymity in the matter had been inapplicable since February 1.  That Giggs purportedly engaged in a six-month affair with Thomas was not a state secret as not only did the foreign press "out" him [see "TUOL" post 5/18/11], but also, Brits gleefully tweeted about the relationship and Democrat MP John Hemming identified Giggs in the House of Commons, where he was shielded from the court order by parliamentary privilege.

Mr. Justice Tugendhat is weighing Giggs' claim for damages against The Sun for allegedly invading his privacy.

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Syria Conflict Claims Lives of Two Western Journalists

English: President Bashar al-Assad, Aleppo, Ab...Image via WikipediaSunday Times foreign correspondent Marie Colvin and French photographer Remi Ochlik were killed by a mortar blast in Homs, Syria, The Washington Post reports.

The American-born Colvin, twice a recipient of the British Press Awards' Foreign Correspondent of the Year, lost an eye to a shrapnel wound in 2001 while covering a story in Sri Lanka. The Syrian government has a lockdown on information, making difficult to independently verify the circumstances of the journalists' deaths, the Post account stated.

Not including Colvin and Ochlik, eleven journalists have been killed in 2012, a half-dozen of whom were confirmed to have died in the performance of their duties, according to the Committee to Protect Journalists.
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Tuesday, February 21, 2012

Google's Safari Hijinks Prompts Congressmen to Seek FTC Inquiry

Apple Safari iconImage via WikipediaFederal Trade Commission Chair Jon Leibowitz last Friday received a letter from Congressmen Ed Markey (D-Mass.) and Joe Barton (R-Texas) urging the agency to probe whether social media giant Google has engaged in "unlawful privacy practices" by using source code chicanery to bypass Web browser Safari's privacy settings, Jurist ( reports.

Responding to a Feb. 17 article that appeared in The Wall Street Journal, the Representatives, who serve in the Congressional Bi-Partisan Privacy Caucus, queried the FTC concerning whether Google's actions that enabled it to track Safari users without their consent ran afoul of a 2011 settlement agreement between the FTC and Google occasioned by the social network Google Buzz's breach of privacy rights during its launch. The accord prohibits Google from misrepresenting its privacy policies to users and requires user consent before the sharing of personal information with third parties.

According to the Journal article, Google employed special computer code that deceived Safari, Apple's Web browsing software, into allowing Google to monitor Safari users, neutralizing Safari's default settings that block user tracking. The Journal article claims Google disabled the code soon after the Journal contacted the social media company for the article.

Google is set to implement its new privacy policy March 1. The company was targeted earlier this month in a lawsuit filed in the United States District Court for the District of Columbia by the Electronic Privacy Information Center against the FTC (Case No. 1:2012-cv-00206). The suit, filed under the Administrative Procedure Act [5 U.S.C. sec. 706(1)] seeks injunctive relief that would compel the FTC to enforce the consent order of October 13, 2011, in In the Matter of Google, Inc. (FTC File No. 1023136).

Google is also under fire from the European Union, which this month sent a letter to Google urging it to delay implementing its new privacy policy until the EU fully investigates it.

Readers taken aback by Google's behavior in this matter are well-advised to heed comedian Bill Maher's reminder that it's no accident that within the name Google is the word ogle.

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Federal Appeals Court Says NY Shield Law Protects Former WSJ Reporter

English: Logo of The Goldman Sachs Group, Inc....Image via WikipediaIn a 12-page decision, a three-judge panel of the United States Circuit Court of Appeals for the Second Circuit last week ruled an ex-Wall Street Journal reporter was protected by New York's shield law from having to testify in a former client's civil suit against Goldman Sachs.

In Baker v. Goldman Sachs et al. (Case No. 11-cv-1591), the appellate court affirmed U.S. District Court for the Southern District of New York Judge Barbara Jones's quashing of a subpoena of former WSJ scribe Jesse Eisinger, whom the court held was  privileged against having to testify under New York Civil Rights Law sec. 79-h.

Eisinger was targeted for a deposition based on articles he wrote for the Journal on February 16, 2000, and in August 2000, concerning Belgian software company Lernout & Hauspie. Some of the company's executives were jailed for misrepresenting the company's revenues and the entity went bankrupt. Plaintiffs James and Janet Baker, whose company, Dragon Systems, produces Dragon Dictation voice-recognition software, sued Goldman Sachs for allegedly failing to exercise due diligence regarding Lernout & Hauspie, which merged with the Bakers in a stock deal. The L&H shares became worthless after the company went belly-up.

Eisinger's articles at issue concerned a Lehman Brothers analyst who raised doubts about L&H's stock valuation and revenues and quoted sources regarding L&H's Asian earnings, respectively. Under New York's shield law, reporters have a qualified privilege against having to disclose unpublished information not obtained under a promise of confidentiality, but are absolutely privileged when news is acquired under a promise of confidentiality.

The Second Circuit panel said the Baker case involved a qualified privilege, which the plaintiffs did not overcome, the Court held, because they failed to show a critical need for the information, that the information sought was material and relevant to their lawsuit and that the information in question was unavailable from an alternative source.

The case is reported on in depth by the Reporters Committee for Freedom of the Press Website (
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Friday, February 17, 2012

UPDATE: Ecuador High Court Upholds Libel Judgment for President Correa

PRESIDENTE RAFAEL CORREA EN EL CIUDADANO TVPRESIDENTE RAFAEL CORREA EN EL CIUDADANO TV (Photo credit: Presidencia de la República del Ecuador)A $40 million libel judgment awarded last July to Ecuador's President Rafael Correa against  the El Universo daily newspaper and its ex-opinion editor Emilio Pallacio has been upheld by a three-judge panel of  the Latin American nation's highest court, CNN reports.

The 48-year-old Correa, who has led Ecuador since 2008, sued when the defendant published an article accusing him of ordering security forces last September to open fire in a hospital filled with civilians. (See "TUOL" post 1/26/12.)

The Committee to Protect Journalists blasted the court decision in a statement issued from its New York headquarters.  Pallacio, who not only is responsible for $30 million of the judgment, but also faces a three-year jail term under the court ruling, presently is seeking asylum in Miami, according to CNN.
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Burroughs Co. Sues Comic Book Publisher that Apes Tarzan

Česky: Edgar Rice Burroughs English: Edgar Ric...Image via WikipediaIn Edgar Rice Burroughs, Inc. v. Dynamic Forces Entertainment, Inc. et al., filed this week in the United States District Court for the Southern District of New York, the family-owned business that holds the copyrights to Edgar Rice Burroughs' literary icons, Tarzan and John Carter, has sued a comic book publisher and entertainment company for publishing unauthorized works based on the characters.

Defendants Dynamic Forces Entertainment and Dynamite Entertainment have yet to respond to the 33-page complaint that includes 10 counts, ranging from claims of trademark infringement [15 U.S.C. sec. 1114(1)] and unfair competition [15 U.S.C. sec. 1125(a)] to copyright infringement and deceptive trade practices. As reported by the Law Blog of The Wall Street Journal (, the suit initiated by ERB, Inc., a company created by the author in 1923, 27 years before his death, that is owned principally by his grandchildren and great-grandchildren, alleges the defendants' Lord of the Jungle and Warlord of Mars comic book series infringe on Burroughs' Tarzan the Ape Man and John Carter of Mars. ERB is based in Tarzana, California (no, seriously).

Dynamite Entertainment, which was founded in 2005, publishes licensed franchise comic book series adaptations based on famous literary figures, including Sherlock Holmes, Dracula and Zorro. Time will tell whether the defendant this time slipped on a banana peel by purportedly "aping" the lovable vine-swinging lug who has appeared in books, comics, television series and nearly 90 films.

"Me process server, You sued."
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Thursday, February 16, 2012

AP Targets Aggregator Meltwater News in Copyright Infringement Suit

Image representing Meltwater Group as depicted...Image via CrunchBaseWire and wire clippers are natural foes, which explains the 41-page copyright infringement complaint filed in the United States District Court for the Southern District of New York yesterday by The Associated Press, the 166-year-old news agency, against 11-year-old Meltwater News, a San-Francisco-based news clipping service.

As reported by Reuters, the New York Post, the Above the Law blog and elsewhere, AP, a New York nonprofit corporation, sued Meltwater, a Delaware corporation that digitally clips news stories to enable clients to track their own press coverage, in a six-count complaint that includes claims for copyright infringement and hot news misappropriation.

AP alleges the defendant is stealing its copyrighted content and selling the information to Meltwater clients without paying AP a licensing fee.  There's no love lost here, as AP President and CEO Tom Curley released a statement branding Meltwater "a parasitic distribution service that competes directly with traditional news sources without paying license fees to cover the costs of creating those stories." The lawsuit seeks damages and injunctive relief.

AP last July, partnered with The New York Times, The Washington Post, and more than two dozen other news organizations to launch NewsRight, a licensing service that monitors the use of copyrighted content on Internet outlets, including blogs and Websites.
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No Brotherly Love for Philly Journos as Layoffs Loom

The sign above the entrance to The Philadelphi...Image via WikipediaThe Philadelphia Media Network ("PMN"), owner of The Philadelphia Inquirer, Philadelphia Daily News and will resort to layoffs if a voluntary buyout program available to employees through the end of the month doesn't yield three dozen fewer workers, reports.

Newspaper Guild leaders received the grim news yesterday that PMN needs to slash its workforce by 37 positions that may come from across-the-board and include reporters, cartoonists, photographers, editorial writers and copy editors, among other classifications. The number of staffers who opt for the buyout will dictate how many layoffs occur, according to

The respective newsrooms of the Inquirer, Daily News and will merge when they relocate, which is scheduled for June. PMN is looking to unload the media properties via auction (see "TUOL" post 1/31/12).
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Wednesday, February 15, 2012

Criminal Libel's 'Rockie' Future in Colorado

Colorado state welcome sign, along Interstate ...Image via Wikipedia
Politics makes for strange bedfellows as a  Colorado Republican legislator, backed by the ACLU and the state's press association, has filed a bill to eliminate the offense of criminal libel, a class 6 felony.

The Associated Press reports that Sen. Greg Brophy, who represents the Eastern Plains, wants to repeal the 19th century law that has been applied seven times over the past two years, including against Howling Pig editor Thomas Mink (see "TUOL" posts 12/15/11, 6/6/11 & 7/22/10). Critics argue the law suppresses First Amendment freedom of speech as it subjects individuals who broadcast or publish defamatory comments about another to up to 18 months in the hoosegow and a maximum $100,000 fine for a first offense.

Pursuant to Colorado Revised Statutes Title 18-13-105: "A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel."

The Colorado Press Association and the ACLU support Brophy's repeal effort, while the state's District Attorney's  Council has remained neutral, according to the AP account. Brophy is quoted in the wire service story as saying: “I think it tramples on the First Amendment rights of people to write and/or post online things that they want to post, and so I’m just seeking to strike the statute. Pretty plain and simple.”
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UPDATE: Stalin's Grandson Strikes Out in Court Again

Joseph Stalin, seated outdoors at Berlin confe...Image via WikipediaThe Russian Information Agency ( reports that Moscow's Tverskoy District Court has thrown out a libel suit against deputies of the lower house of parliament (State Duma) brought by Yevgeny Dzhugashvili, grandson of Josef Stalin, who ruled the Soviet Union for 25 years with an iron fist and a bushy mustache.

Dzhugashvili is expected to appeal the ruling, which sought a refutation of claims that his infamous grandpa presided over the execution of more than 20,000 Polish Officers and civilians imprisoned in Katyn, a blintz throw from Smolensk, Russia. The Soviet Union maintained for years that the Nazis were responsible for the mass murder in 1941, but former Soviet Union President Mikhail Gorbachev in 1990 turned over classified documents to the Polish government, admitting the execution of the prisoners occurred in 1940 and was carried out by the NKVD--the People's Commissariat for Internal Affairs, the secret police who engaged in political repression during the Stalin regime.

The Russian News Agency reported that Dzhugashvili  sued the Duma for 100,000,000 rubles ($3.3 million) after the lower house of parliament declared in November 2010, the Stalin regime was to blame for the Katyn slaughter, but that lawsuit was tossed by the court, which said he failed to provide evidence to support his damages claim. The litigious grandson previously stumbled in a libel suit against the Novaya Gazeta newspaper in 2009. which had called Grandpa Jo a "bloody cannibal." (See "TUOL" posts 10/14/09 & 9/9/09).

Apparently, the air of a dictator is more powerful and successful than the heir of a dictator.
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Tuesday, February 14, 2012

Is Speaking Ill of the Dead Protected by the 1st Amendment?

English: An study guide for embalmers publishe...Image via WikipediaThe Massachusetts Supreme Judicial Court is expected to decide in the next three months whether a funeral home embalmer's First Amendment rights were violated when a Commonwealth regulatory agency revoked his license over published controversial remarks concerning corpses.

The SJC heard arguments January 6 in the case of Troy J. Schoeller v. Board of Registration of Funeral Directors and Embalmers (Docket No. 10980) in which the 35-year-old Schoeller sued after the state board pulled his license in 2010 for allegedly violating 239 C.M.R. sec. 3.13(7) that bars embalmers and funeral directors from commenting on the condition of any human body entrusted to their care.

According to an Associated Press account, Schoeller, an embalmer specializing in reconstructive art who plied his trade in Florida and Massachusetts for more than 13 years, was twice interviewed for a 2006 article in the alternative weekly newspaper, The Boston Phoenix prompted by his opening a clothing store called Horror Business. During his second interview, which occurred in a restaurant, Schoeller allegedly made several offensive comments concerning his work, such as purportedly expressing distaste for embalming fat people and allegedly likening an infant's body to a "bearskin rug."

Schoeller's counsel contends his client is the first embalmer in the Commonwealth ever to be disciplined for such conduct and claims the regulation at issue is over-broad and violates Schoeller's freedom of speech. He also argues that funeral directors and embalmers discuss their work in trade journals and other publications as a matter of course because of public interest. The assistant attorneys general representing the Commonwealth, however, suggest Schoeller's conduct was unprofessional and his purported comments were insensitive.

Although he maintains he didn't say anything that was untruthful, Schoeller cedes in the AP article that he might have been more artful in his choice of words.  Perhaps it's an occupational hazard that those who spend their work day among the dead forget how to speak to the living.

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