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

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.