Freeing Speech at All Stages of Life

As with so many great entrepreneurs, Lauren Richwine of Fort Wayne, Indiana, started with a need. She saw something missing—something valuable that others couldn’t see. For her, that missing puzzle piece involved how we plan for our final days and what our loved ones should do after we pass away.

As a hospice volunteer for many years, Lauren knew that people had medical staff attending to them in the last stage of life and funeral directors for when they were gone. But she also noticed that these medical and funeral professionals operate at arm’s length. She saw a need for a new kind of care—someone who could connect emotionally with the dying and their families, help them design a personalized plan for the end of life, and be there with the dying as their advocate and supporter. In short, she could help families understand end-of-life and funeral options without selling any of them herself.

Styling herself a “community death care advocate,” Lauren launched her business, Death Done Differently, in 2019. It was a quick and growing success, with many families turning to Lauren to help them make informed choices. They liked her unique combination of empathy and frankness when discussing the taboo subject of death. They also liked the connections Lauren had built in her community with nursing homes, hospitals, and funeral directors.

Liberty & Law readers can probably guess what happened next. The Indiana Funeral and Cemetery Board received an anonymous complaint (almost certainly from a funeral director) alleging that Lauren was acting as a funeral director without a license. There is no allegation that Lauren harmed anyone, and she hasn’t. But the purpose of these kinds of complaints isn’t to protect the public. It’s to protect industry insiders from innovators.

The burdens of getting licensed are enormous. Lauren would have to go to mortuary school, embalm dozens of bodies, intern for a year, and build a full-service funeral home. But she doesn’t need any of that education or a funeral home because she is not a funeral director and does not want to be one. The Board ultimately ordered Lauren to shut down until she gets licensed.

The worst aspect of the Board’s order is that it restricts pure speech. All Lauren does is talk with her clients. She doesn’t do anything but speak. Indeed, the Board explicitly targeted her speech, forbidding “discussion of funeral options,” “verbal guidance,” “consultation,” and “providing advice.”

But the First Amendment does not allow Indiana to use licensing laws to restrict Lauren’s speech. Lauren’s case is part of IJ’s larger strategic effort in federal courts across the country to establish that occupational speech is free speech. This is one of the most active areas of constitutional law, and Lauren’s case will be within a federal circuit (the 7th) that hasn’t yet weighed in on the debate. So this, or any one of IJ’s many cases in this area, could be the vehicle for a landmark U.S. Supreme Court decision.

Jeff Rowes is an IJ senior attorney, and Ben Field is an IJ attorney.