First Amendment Likely Protects "Death Doulas"

From Richwine v. Matuszak, decided last week by Chief Judge Holly Brady (N.D. Ind.):

Plaintiff … is a "death doula." Through her business and co-Plaintiff, Death Done Differently LLC …, Richwine speaks with people about a difficult topic, one many people avoid: death and dying. This includes providing individualized advice to clients and their families to plan for death, options for funeral goods and services, and how they would like to be remembered. Defendants—officials of the State of Indiana—ordered Richwine to cease speaking unless she obtains a funeral-director license for herself and a funeral-home license for her business….

Richwine sued under the First Amendment, and the court granted her a preliminary injunction, concluding that she was likely to succeed on the merits:

The Order restricts Plaintiffs' speech in two ways. First, it prohibits Plaintiffs from providing education or individualized advice about end-of-life care. Second, the Order prevents Plaintiffs from advertising those services on their website….

As with lawyer speech, the government cannot escape the First Amendment by claiming it is regulating conduct when the supposed "conduct triggering coverage under the statute consists of communicating a message." Holder v. Humanitarian Law Project (2010). This is all the more true considering the Supreme Court's decision in NIFLA v. Becerra (2018). Prior to NIFLA, some Courts of Appeals recognized "professional speech" as its own category of speech subject to a different rule. But the Supreme Court expressly rejected that notion. NIFLA ("This Court's precedents do not permit governments to impose content-based restrictions on speech without 'persuasive evidence…of a long (if heretofore unrecognized) tradition' to that effect…This Court's precedents do not recognize such tradition for a category called 'professional speech.'"). And all authority Defendants cite in support came well before NIFLA. Thus, Indiana's statutes are not exempt from heightened scrutiny merely because they regulate the professional speech of licensed funeral directors. States cannot exercise "unfettered power to reduce a group's First Amendment right by simply imposing a licensing requirement."

That said, Defendants' enforcement of the funeral licensing scheme against Plaintiffs is content based. The statutes' enforcement here turns entirely on the topics that Plaintiffs discuss and the messages they express. On their face, the funeral licensing statutes ban unlicensed "counseling of individuals concerning methods and alternatives for the final disposition of human remains" and "counseling of survivors" about the same. Under the authority of those statutes, the Board ordered Plaintiffs to cease "[d]iscussion of funeral options"; "verbal guidance" and "consultation" with families about death care; "provid[ing] advice" about funeral services; and "counseling consumers" about those topics. Any violation of the Order requires examination of the content of Plaintiffs' messages.

Even still, NIFLA maintained two exceptions which "afforded lesser protections for professional speech." The first is an exception for laws that "require professionals to disclose factual, noncontroversial information in their 'commercial speech.'"A lower level of scrutiny applies to laws that compel disclosures in certain contexts. Second, "[s]tates may regulate professional conduct even though that conduct incidentally involves speech." …

The Court is not convinced that the individualized advice and education that Plaintiffs provide is commercial speech, unlike their website's advertisements. And the Order is drafted broadly enough to encompass much more than just commercial speech. It Orders Plaintiffs to "refrain from counseling consumers, whether individually or in educational events open to the public, in any manner and through any medium, concerning methods and alternatives for the final disposition of human remains." Further, nothing in the Order indicates that Plaintiffs could resume offering their services if they made a factual, noncontroversial disclosure. Instead, Plaintiffs are banned completely from discussing certain topics whether or not those discussions are commercial in nature….

As for the second NIFLA exception, "the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech." Burdens are "incidental" when they flow from the core purpose of the regulation….

[It is true that Del Castillo v. Secretary, Florida Dep't of Health (11th Cir. 2022),] allowed a state to transform pure speech about diet advice into non-expressive conduct by simply labeling it "the practice of dietetics" [and thus upheld a licensing requirement for people offering such advice]. Applying the same rationale, professors' lectures could become "the practice of instruction"; musicians' songs could become "the practice of composing" and; writers' op-eds could become "the practice of journalism." Pursuant to Del Castillo, as long as the government can permissibly regulate some form of conduct, they could chill vast amounts of speech. "States cannot choose the protection that speech receives under the First Amendment" simply by calling "something a 'profession'" just because "it involves personalized services and requires a professional license from the State."

All Plaintiffs do is speak. Indiana's funeral-licensing laws specifically prohibits "the counseling of individuals concerning methods and alternatives for the final disposition of human remains" without a license. This provision, which the Board relied on in its Order, "directly regulate[s] speech." And the Order only bars Plaintiffs' services that involve speech. As applied to Plaintiffs, "the conduct triggering coverage under the statute consists of communicating a message." Holder 561 U.S. at 28. Because "NIFLA rejected the proposition that First Amendment protection turns on whether the challenged regulation is part of an occupational-licensing scheme" and Indiana's funeral-licensing scheme directly regulates speech, ordinary First Amendment principles apply.

Indiana's content-based restriction of Plaintiffs' speech receives strict scrutiny…. To survive strict scrutiny, "the Government must prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest." Defendants must "specifically identify an 'actual problem' in need of solving and the curtailment of free speech must be actually necessary to the solution." "Though there is no exact definition of a compelling interest, it is one 'of the highest order' and is only found in 'rare cases.'"

To that end, Defendants provide two interests which they believe are of the highest order. The first is public health and safety. Indeed, the statutes here require arrangement "for the final disposition of human remains in compliance with public health and safety laws and in a manner that prevents the spread of infectious disease." Defendants suggest that they can regulate Plaintiffs' advice that their client can choose the option of a funeral home and, in normal circumstances, safely keep a body at home for three days after death. Yet the only evidence that they provide is the declaration of an IPLA investigator and a cemetarian who stated that keeping a body un-embalmed or un-refrigerated for too long can create "potential" health concerns in "certain" circumstances. That kind of "mere speculation and conjecture" falls short. {In any event, Indiana law turns Defendants' argument on its head. While Defendants posit that keeping a body at home for three days is a public health concern, Indiana gives next of kin "up to 72 hours or three days from the time of death to contact the funeral home of their choice … to determine the final disposition of the decedent's remains" before the obligation to arrange for disposition passes to another. The Court acknowledges the common sense that dead bodies pose a risk in some circumstances within that time frame. But it is axiomatic to give people three days from death before they even have to contact a funeral home while claiming that Plaintiffs' advice poses a risk to public health.} Nor have Defendants provided any compelling evidence of an "actual problem."

The second interest is consumer protection. Defendants assert that Indiana has compelling interests in protecting consumers from making poor choices about the disposition of their loved ones and avoiding the duplicative costs of hiring Plaintiffs to help select services which ultimately are conducted by a licensed funeral director. In support, Defendants provide two Attorney General employees' testimony which expressed concerns that Plaintiffs' services overlapped with that of a licensed funeral director. Defendants also provided a funeral director's testimony who stated one of their "biggest concerns" was Plaintiffs "accompanying [families] to the funeral home to assist them in selecting funeral services."

The Court is not convinced that Defendants have shown a compelling interest in consumer protection. Although consumer protection may be compelling in some situations, there is nothing compelling about deliberately suppressing speech to keep consumers ignorant about their options in preparing for death and subsequent memorials…. "The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good." … The First Amendment rejects a "highly paternalistic approach" and "assume[s] that … information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them." If families choosing what services they want from a funeral home find value in a knowledgeable advisor without a financial stake in their purchases, that is the consumer's choice to make. And, again, there is no actual evidence that Plaintiffs' advice ever harmed a consumer. Consumer protection is not a compelling interest here.

Even if the Court were to find Defendants' proposed interests compelling, the blanket speech ban is far from the least restrictive means. Defendants here do not even argue that Indiana's statutes are narrowly-tailored. Meanwhile, Plaintiffs have provided several "effective alternatives." {"Defendants could update their government websites to provide consumer information about death care to alleviate any concerns they may have. See U.S. v. Alvarez (2012) (suggesting 'Government-created database' as alternative to prohibiting speech to 'protect the integrity of the military awards system'). Defendants can also invoke general anti- fraud and consumer protection laws that do not target the content of speech. See Vill. of Schaumburg v. Citizens for a Better Env't (1980) (recognizing that government's 'legitimate interest in preventing fraud can be better served by measures less intrusive than a direct prohibition on [speech]. Fraudulent misrepresentations can be prohibited and the penal laws used to punish such conduct directly.')."}

Of course, the First Amendment is no barrier to Defendants' licensing non-expressive conduct such as embalming bodies or cremation. But the statutes as applied here are more akin to a blanket prior restraint of Plaintiffs' speech. Defendants advanced no argument to combat that notion.

The court also concluded that the restrictions on plaintiffs' advertising were likely unconstitutional under the lower standard of scrutiny applicable to such restrictions, chiefly because they weren't false or misleading. [UPDATE: I originally erroneously wrote "were likely constitutional under the lower standard …," though of course the court held the restrictions were likely unconstitutional. D'oh! Thanks to Michael Rosman for pointing out the typo.]

Plaintiff is represented by Benjamin A. Field, Christian W. Lansinger, and Jeffrey Rowes of the Institute for Justice, and David I. Rubin, Erika L. Steuerwald, and Stephen J. Peters of Kroger Gardis & Regas LLP.