Embalmer takes speech case to Mass. high court

Feb 10, 6:16 AM EST


Embalmer takes speech case to Mass. high court

By DENISE LAVOIE

AP Legal Affairs Writer

BOSTON (AP) -- Troy Schoeller admits he could have chosen his words more carefully when he talked to a reporter about bodies he worked on as an embalmer at a funeral home.

Among a litany of graphic remarks Schoeller made was that he hates embalming fat people. He also described the body of a baby as a "bearskin rug" and made other crude observations about the difficulties of his work.

After his comments were published in The Boston Phoenix, the state board that licenses funeral directors and embalmers revoked his license. Now Schoeller is challenging that punishment before the highest court in Massachusetts, arguing the revocation violates his constitutional right to free speech.

"I didn't lie about anything," he said. "I didn't say anything that was wrong."

Schoeller argues that state regulators chose to enforce a vague and overly broad provision of the code of conduct that prohibits funeral directors and embalmers from commenting on the condition of a body entrusted to their care.

Funeral directors and embalmers routinely talk about their work in trade journals and other publications to inform a curious public, and the provision should not be interpreted as barring them from ever talking publicly about what they do, said his lawyer, Jason Benzaken. Schoeller is the first embalmer in Massachusetts to be disciplined on those grounds, the lawyer said.

Schoeller's statements were truthful, did not disclose confidential information and pertained to a matter of "legitimate public concern," and were therefore protected by the First Amendment and the state constitution, Benzaken said.

"People are interested in it; people have a right to know what happens to their deceased family members when they are brought into a funeral home," he said.

But the state Board of Registration of Funeral Directors and Embalmers found that Schoeller violated the code of conduct by talking about bodies in his care in an "unprofessional" manner.

"Sensitivity, dignity, respect are at the very heart of this profession," Assistant Attorney General Sookyoung Shin said.

"If his comments are OK, then any funeral director or embalmer in the state would have license to go out and describe the types of bodies that he finds nasty or that he finds amusing," Shin said during arguments before the Supreme Judicial Court last month. "And if I'm someone whose loved one has just died ... the last thing I would want is to feel as though the funeral home to which I've entrusted my loved one's remains is mocking the condition of the body."

Schoeller, 35, worked as an embalmer for 13 years in Florida and Massachusetts before his license was revoked in 2010. He said he agreed to be interviewed by The Phoenix, an alternative weekly newspaper, after he opened a clothing store called Horror Business in Boston in 2006.

Schoeller said the reporter took notes during their first meeting, so he knew whatever he said could be published. He said the second meeting was in a restaurant and much more casual, and he did not realize for much of the evening that the reporter was recording their conversation.

In the article, Schoeller discusses his specialty, reconstructive art, describing how he works to restore traumatized bodies so families can see their loved ones the way they knew them one more time. He also made graphic remarks about how the bodies of overweight people react to the embalming process - describing it, among other things, as "nasty" - and offered crude descriptions of his biological reactions to the fumes emanating from bodies.

His remark about the infant came while he was describing how he started with a baby "that looked like a bearskin rug."

"I had to rebuild it in nine hours. I used everything: duct tape, masking tape, tissue builder, wound filler. ... I put, like, coat hangers and caulk in there and put him into a little baby outfit. He even weighed enough, too, because I packed his head and his chest. He looked awesome," he said.

Schoeller said his remarks were an attempt to show how he took pride in his work and how it is an art to him.

"I tried to explain in my layman's terms how some of these deceased people, how much work went into making them look good so the family could have a lasting impression for the last time," he said.

Schoeller said he would have used different language if he had realized his comments were going to be published.

Ethical regulations for funeral directors and embalmers differ from state to state, but it is a clear violation in all states for funeral directors or embalmers to talk publicly in a way that identifies a deceased person entrusted to their care, said Lisa Carlson, executive director of the Funeral Ethics Organization.

Other professions also restrict workers from talking about the people they serve. Under the federal health privacy rules, providers are restricted from disclosing personal health information about patients. Lawyers are also bound by confidentiality rules to not disclose what their clients tell them.

Schoeller said he did not identify anyone in his remarks to the reporter.

"If he's just generally talking about fat people, that's just poor taste," Carlson said. "If he worked at my funeral home, I'd fire him for not having good judgment."

The Supreme Judicial Court is expected to rule on the case within three months. The court could allow the revocation to stand, or could send the case back to the board and say the sanction seems excessive, or could reverse the finding of the board.

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