June 21, 2012

Does a mortuary science student have free speech right to write Facebook posts about a cadaver?

The Minnesota Supreme Court said no.
The [mortuary science] program's rules specifically require students to be "respectful and discreet" in dealing with cadavers, and not to blog about their cadavers. The university said that Tatro violated these rules with four Facebook status updates in which she talked about her cadaver, whom she named "Bernie." 
The student was actually pretty respectful toward the corpse:
Realized with great sadness that my best friend, Bernie, will no longer be with me as of Friday next week. I wish to accompany him to the retort. Now where will I go or who will I hang with when I need to gather my sanity? Bye, bye Bernie. Lock of hair in my pocket.
If you were "Bernie"'s widow, would that make you mad that you'd allowed the program to use his body for educational purposes? Do you think the university's interests are enough to justify this repression of speech?

Note that the state supreme court's decision was much more limited — relating only to professional programs with standards of conduct — than what the intermediate appellate court had said, which would have permitted the university to "punish off-campus speech that 'materially and substantially disrupted the work and discipline of the university.'"

UPDATE, June 26, 2012: Amanda Tatro, who was only 31, has died. She suffered from a disorder of the central nervous system and "need[ed] electric spinal cord stimulators in her body to be able to move."


Matt Sablan said...

I think this post is probably the worst: "Gets to play, I mean dissect, Bernie today. Let’s see if I can have a lab void of reprimanding and having my scalpel taken away. Perhaps if I just hide it in my sleeve..." Also: "Give me room, lots of aggression to be taken out with a trocar."

I don't think I'd want to think of people playing with my dead body or using it to take out their aggression. Even though it is clearly a joke.

I don't know if I agree with the court's decision, but I think that I can at least understand why the university would say that this wasn't extremely respectful.

Also, maybe they think it isn't respectful to even joke about taking a lock of hair from a total stranger's body?

X said...

respectful? because she didn't put wayfarers on him and take him water skiing?

she's has a free speech right to talk about cadavers, but she doesn't get to be a professional as well. tradeoffs.

Michael K said...

Medical students spend far less time dissecting cadavers than we did 50 years ago. I don't know what mortuary science students do with them.

Bob Ellison said...

How does "a free speech right" come into this? Does Minnesota's constitution say something like "nobody ever gets to discipline anyone, ever, for saying anything at all"?

I agree with the court, but the university's application of policy seems overdone here. From reading the article, I don't see how the hypothetical widow/family could make the connection from the FB posts to a specific cadaver. What if the defendant had written claimed the whole thing was entirely a work of fiction? Does the university have a good reason to shut her up?

Rusty said...

One thing is certain. Bernie ain't complainin'

KCFleming said...

She violated the rules of professionalism, and thus failed the course. A narrow decision like this is far better than the odiously broad opinion from the intermediate appellate court.

I suspect her "satirical commentary" will not prove to be an attraction for customers, but she's welcome to try.

2011 Minnesota Statutes

"(11)engages in any conduct that, in the determination of the regulatory agency, is unprofessional as prescribed in section 149A.70, subdivision 7, or renders the person unfit to practice mortuary science or to operate a funeral establishment or crematory.

Unprofessional conduct.
No licensee or intern shall engage in or permit others under the licensee's or intern's supervision or employment to engage in unprofessional conduct. Unprofessional conduct includes, but is not limited to:

(1) harassing, abusing, or intimidating a customer, employee, or any other person encountered while within the scope of practice, employment, or business;

(2) using profane, indecent, or obscene language within the immediate hearing of the family or relatives of the deceased;

(3) failure to treat with dignity and respect the body of the deceased, any member of the family or relatives of the deceased, any employee, or any other person encountered while within the scope of practice, employment, or business;

(4) the habitual overindulgence in the use of or dependence on intoxicating liquors, prescription drugs, over-the-counter drugs, illegal drugs, or any other mood altering substances that substantially impair a person's work-related judgment or performance;

(5) revealing personally identifiable facts, data, or information about a decedent, customer, member of the decedent's family, or employee acquired in the practice or business without the prior consent of the individual, except as authorized by law;

(6) intentionally misleading or deceiving any customer in the sale of any goods or services provided by the licensee;

(7) knowingly making a false statement in the procuring, preparation, or filing of any required permit or document; or

(8) knowingly making a false statement on a record of death.

I Have Misplaced My Pants said...

As I tell my kids, a large part of growing up and learning gracious behavior is knowing when to keep your mouth shut. Not every thought you ever have has to be expressed and celebrated by others. No one taught this kid to install a filter. And instead of taking the lesson when the university tried to teach it, she sued. Typical.

I have no opinion on the legal aspect, but I think the student is an asshat and her parents ought to be embarrassed of the clod they raised.

MadisonMan said...

I agree upthread. You can talk about a cadaver in public, or you can work towards a professional degree like mortuary science.

You can't do both. I earnestly hope she flunked. Who would want to use her mortician services now anyway?

Roger J. said...

This probably says more about facebook and the inclinination of many young people to put stupid shit on face book.

IIRC Pogo is a pathologist and I will take his counsel on this.

tim maguire said...

She is immature and disrespectful, "Bernie" was a person and naming him for the cadaver in a bad 80's movie doesn't make him less of a person.

I would say she is developmentally unfit for her chosen profession. Of course a university has a right to say to any student, "maybe some day, but not today."

I don't see where first amendment issues come into play. It's not merely what she said, but what what she said revealed about her.

Wince said...

Would it be okay if Bernie was a "composite"?

KCFleming said...

An internist, not a pathologist, but the rules of professionalism apply similarly to most such jobs.

A professional's humor about clients/customers/patients is best relegated to private conversations or post-retirement memoirs.

Anonymous said...

Isn't the first amendment and the idea of free speech about government making it illegal to express your ideas? Free speech is only about the legal consequences of expressing yourself.

It is not about an employer or an institution has to always associate themselves with you after you express yourself in a way that they don't like.

In other words, you can't get thrown in jail or have your liberty taken away due to expression. But you can lose your job or a spot in a university due to expression.

Patrick said...

Quoting the Eleventh Circuit, the Court notes the crux of its decision here:

the Eleventh Circuit concluded that when a state university conditions a student’s participation in a counseling clinical practicum on compliance with a professional code of ethics, the student, “having voluntarily enrolled in the program, does not have a constitutional right to refuse to comply with those conditions.

The Court focused its fairly narrow decision on whether it could use professional standards to restrict free speech rights, and determined it could. That makes sense, as the Court also noted that it could not use such standards unless they were related to professional reasons.

Finally, I don't agree that the student's writings were "respectful." I don't have much problem with the one quoted, but the others noted in the opinion included violent or potentially violent language. Even the quoted one would have the potential to disturb the family member of a deceased whose body was in the custody of the department.

This is a pretty good opinion written by Justice Helen Meyer with whom I often disagree. She is leaving the court, no replacement has been announced.

Chip Ahoy said...

You guys are right. You convinced me. Whereas I was indifferent, now I see this is bad, especially Erica, I thought I was reading a man and maybe being faked out with a female name, that was a strong statement, Erica, you got me.

But then I do wince at the guy sticking his hand up a whole chicken and acting like it's a puppet, or two of them and make them dance. I don't like that, it's disrespectful. Or the fish in the blender for comedy. Or a live goldfish in a blender aquarium for ironic comedic tension, I don't like any of that and it all goes together but you got me to see the distinction that this is professionally disqualifying.

ndspinelli said...

Just some irony. There's a great indy flick out called Bernie. It's a true story about a mortician in Texas.

jimbino said...

"Respect" for a cadaver is in the same class as respect for star-spangled banners, kings and queens and another's religion: all are complete fabrications of the religious, particularly the Christianists.

A body is rightfully the property of the deceased and, as such, passes to his heirs as does other property. Antigone is right that the state should have no say in it. Anything else diminishes the rights of all the living.

Patrick said...

Bob Ellison,

The University has an interest in assuring donors, potential donors and their families that the cadavers are being treated respectfully. I don't think connection to a specific cadaver would be necessary to undermine that assurance.

Shanna said...

A professional's humor about clients/customers/patients is best relegated to private conversations or post-retirement memoirs.

Indeed. It's best not to talk about patients online in general. I'm not sure if hippa applies to cadavers, but the general principle is the same.

Bob Ellison said...

Patrick, that makes sense. I was bouncing off of the Professor's question about "Bernie's widow". In this sense, that widow is sort of a (legitimate) composite.

edutcher said...

The rule is keep your comments to yourself.

We had a new guy write some code with the usual debugging comments in it, but peppered with not-so-usual adjectives.

Stuff got past the testers and into production.

Guy had just gotten married.

wyo sis said...

The university is right. It would be a good thing for people in general to be a little more respectful. You can't be disciplined for what you don't say.

Jennifer Whatnot said...

Re: the respect issue, the second she called him "Bernie" she was disrespecting him. Look at all the outrageous things that were done to Bernie's corpse in the movie.

No respect at all!

Sharc said...

And it's not just about lack of respect for a stranger, ala Weekend at Bernie's. That person -- the donor -- is due the same respect as any other life-saving organ donor. Turning that kind of precious, selfless gift into fodder for a cheap joke is beyond arrogant. Funny as a crutch.