That Tom Lynch libel case

Charles Cowling

There are times when we feel acutely that the UK and the US are ‘two countries separated by a common language’. When our common language is voiced by the monstrous Republican right, the gulf looks unbridgeable.

But where funerals are concerned we have much talk about and much to learn from each other. And there’s a healthy symbiosis going on: they like our natural burial; we like their home funerals. In almost every area of debate Americans are more passionate and dynamic than the Brits. The US has a far more powerful, predatory, scandal-ridden, eco-hostile funeral industry than ours, so they have more to react against, more to talk about, and more urgently. For all that, the issues are shared: the role and value of the funeral director; the rights and responsibilities of the bereaved; the purpose of a funeral; and environmentally responsible funerals. Elemental stuff.

In the matter of consumer protection, the US has its excellent Funeral Consumers Alliance (FCA), run by the acute and indefatigble Josh Slocum. Its website is a treasury of information. It also has the Funeral Ethics Organisation (FEO), run by the redoubtable and completely splendid Lisa Carlson. We have nothing like campaigners of this calibre here in the UK.

The US has the best writers, too. We have our Tony Walter, but no one has written more thoughtfully or brilliantly than Thomas Lynch, an undertaker and poet whose prose, arguably, is even better than his verse. His two books of essays, The Undertaking and Bodies in Rest and in Motion, condense thought, experience and wisdom, and express them through a high intelligence and a god-given, delicious prose style. His concerns are elemental ones: “funerals are the way we close the gap between the death that happens and the death that matters. It’s how we assign meaning to our little remarkable histories.”

He is critical of the way things are. He observes how the parlour, that room in old houses where babies were born and the dead laid out, has been converted to accommodate Mr Thomas Crapper’s invaluable invention, the toilet: “Since Crapper’s marvellous invention, we need only pull the lever behind us and the evidence disappears, a kind of rapture that removes the nuisance … having lost the regular necessity of dealing with unpleasantries, we have lost the ability to do so when need arises. And we have lost the community well versed in these calamities. In short, when shit happens, we feel alone. It is the same with our dead. We are embarrassed by them in the way that we are embarrassed by a toilet that overflows the night that company comes. It is an emergency. We call the plumber … And just as bringing the crapper indoors has made faeces an embarrassment, pushing the dead and dying out has made death one.”

This looks like a manifesto for home funerals. It is. One of Tom’s most-repeated dictums is this: “Ours is a species which deals with death by dealing with our dead.” He acknowledges that most people don’t want to be that involved, and that’s where the funeral director comes in. He says, “some want to be empowered, others to be served, others not to be bothered at all. Our job is to meet them where they are on this continuum and help where we can when we’re asked.”

For all that, Tom fell out with Lisa and the FCA over his defence of the right of the State of Michigan to appoint funeral directors to superintend the filing of paperwork pertaining to a funeral, even that of home funeralists. Interestingly, anomalously, the state does not pay these funeral directors for their supervision, the family does. And, as Lisa has it, “When a state requires a family to hire a funeral director, that body becomes a hostage of the funeral industry. The funeral director is suddenly in a position of authority with his meter running.”

The falling out was so acrimonious that Tom sued Lisa and the FCA for libel.

The news is that Tom’s suit has just been thrown out of court.

And the saddening pity is that all parties are high-minded, admirable people.

I don’t feel culturally qualified to have a view on all this, so I’m nailing my trousers to the fence. Sure, we share a common language…

Read the FCA response and the court ruling here.

2 thoughts on “That Tom Lynch libel case

  1. Charles Cowling
    Charles Cowling

    Charles Cowling said…
    This just in (by email) from Tom Lynch:

    On the Dismissal of the Lawsuit vs. Lisa Carlson

    I brought suit against Ms. Carlson and her factotum, Josh Slocum, not over anything she said about me or my published work, but because of a false and libelous statement she made in print about our family and our firm. She wrote: “The Lynches have been vocal against families caring for their own dead….”
    Nothing could be further from the truth.

    First I asked for a simple retraction and apology. When none was forthcoming, I asked her board to correct the record. When she refused them, most resigned in protest. I filed suit as a matter of principle and a last resort. In the course of those proceedings, Ms. Carlson’s latest desktop enterprise – the so-called Funeral Ethics Organization (formerly FCA, previously, FAMSA, soon to be something else, no doubt) lost its board of directors and ceased publishing. The FEO now operates without a board, outside the requirements of its own bylaws. It is what it has mostly always been, a copy and paste forum for Lisa & Josh’s blather and a sales office for her self-published screeds and manifestos.

    It took them three attorneys, ten hours of deposition, and most of a year to dismiss this item, which could have been dismissed with an apology. The court ruled that as a public figure, I am not entitled to the same protections against libel as a private citizen, especially in relation to a pair of feckless bloggers from Vermont with mailing lists and readerships in the several dozens. Their triumvirate of attorneys (apparently they do not believe in do-it-yourself lawyering) argued that I had not proven sufficient “damages” to bring this to trial. Oh well, I suppose that may well be so. In the year since the lawsuit started, we bought another funeral home, I finished two books that will be published next year, another of our third generation got licensed, and the documentary film about our family’s work won an Emmy Award. It seems we thrive in spite of Ms. Carlson’s ad hominems.

    Of course, the greatest threat to Lisa and Josh and their operations are funeral directors who do not fit the mold she’s cast them in – as predatory salespeople and ethically challenged hooligans. Funeral directors who conduct themselves with integrity, humanity and honorable purpose – which is to say the vast majority of them – are a threat to organizations like Lisa’s and Josh’s. When one’s work is reviewed in the New York Times and favorably profiled on radio and TV, it quickens in them spasms of further panic: hence her perennial attacks. So, while I mayn’t agree with Judge Cleland’s ruling, it is hard to quibble with his observation:

    Indeed, the record before the court suggests that the “debate” between the parties has been instigated primarily by Defendants, particularly Lisa Carlson. Her numerous, tendentious commentaries could easily be viewed as not much more than attempts to use Lynch’s renown to launch herself, and her agenda, into a limelight to which she would not otherwise have much access. Lynch, on the other hand, seems to have exercised a fair amount of restraint, largely avoiding the irritation presented by Defendants’ efforts. (Page 15)

    I’ll be returning now to my former habit (in keeping with the rest of the planet, minus a handful of her devotees) of ignoring her and Josh’s “tendentious commentaries,” and “avoiding the irritation presented by Defendant’s efforts.” The court has affirmed their rights to free, though false and misleading speech, even if they’re mostly talking to each other. Huzzah!

    17 August 2009 17:11
    yourfuneralguy said…
    Being a funeral Director here in the States,and and author of my own book on the Industry Mr.Cowling’s Post is spot on.

    Mr.Lynch’s response however is not. His statement that “Funeral Directors who conduct themselves with integrity humanity and honorable purpose-which is to say the vast majority of them” is false.

    The implication that funeral directors are NOT predatory Sales people and ethically challenged hooligans is also a half truth.

    Most funeral directors do not start out ethically challenged but they end up that way after being in the system.

    Because of the economic conditions present in the United States and the dinosaur of the traditional funeral biz most funeral home owners and funeral corporate managers are by nature predators.

    Funeral Directors who are staff become that way in order to survive.

    Mr Lynch is a poetic genius,who does not have a grasp of the present reality in the USA.

    18 August 2009 01:10
    Charles Cowling said…
    This from Lisa Carlson (by email). It’s in two parts because that’s the only way Blogger can handle it.

    Mr. Lynch is indeed a gifted writer. He is a little less gifted when dealing with the facts.

    I can assure everyone that Mr. Slocum is his own person, not my servant or “factotum.”

    Lynch writes, “I brought suit. . . not over anything she said about me or my published work. . .”

    Apparently Lynch has forgotten that under “Common Allegations” in the suit, I was accused of making libelous statements in my book when I pointed out that Lynch misled the public in his book by saying that the homeless supplied enough bodies for med schools so one needn’t consider body donation. Two of the med schools in Michigan report an urgent need of donations.

    Count 1 accuses me of libel in the commentary I wrote about the Frontline piece done in the Lynch funeral homes. I wrote, and FCA of Idaho reprinted, that during several of the arrangements conferences no general price lists or casket price lists were shown, a violation of the FTC Funeral Rule.

    Count 2 is against Funeral Consumers Alliance for posting an essay “Deconstructing Thomas Lynch” which was not written by me but by a lawyer and past president of FCA.

    Count 3 dealt with the FEO newsletter article, “Black Eye for Green Burial Council.”

    Lynch goes on to say, “I asked for a simple retraction and apology. . . I filed suit as a matter of principle and a last resort.” Really? The following was e-mailed to Lynch and posted on the FEO website BEFORE he ever filed suit:

    18 August 2009 12:38
    Charles Cowling said…
    I, Lisa Carlson, editor of the Funeral Ethics Organization newsletter, and with the support of the current FEO board, apologize to the Lynches, individually and collectively, for the statement I made in the Spring-summer ’08 issue: “The Lynches have been vocal against families caring for their own dead, even though Michigan has an excellent home burial statute, the ideal low-cost “green” option if one didn’t have to use a funeral director, too.” If readers thought that meant that the Lynches didn’t encourage family participation in the funeral experience, we have been assured that they do. To avoid misunderstanding, the sentence is hereby retracted.

    Perhaps a more accurate statement would have been, “Several of the Lynches appear to be concerned that there is a growing consumer effort to change the Michigan laws that require a funeral director to file the death certificate and oversee final disposition, even for home burial, the ideal low-cost “green” option, if one didn’t have to use a funeral director, too. This requirement puts the funeral director in a position of authority and creates an obligation that might cost a family anywhere from a few hundred dollars to several thousand dollars. Tom Lynch has stated to me personally that he will lobby against such a change in the laws, change that would allow families to care for their own dead without a funeral director.

    Now Mr. Lynch is really on a tear when he writes: “Ms. Carlson’s latest desktop enterprise – the so-called Funeral Ethics Organization (formerly FCA, previously, FAMSA, soon to be something else, no doubt) lost its board of directors and ceased publishing. The FEO now operates without a board, outside the requirements of its own bylaws. It is what it has mostly always been, a copy and paste forum for Lisa & Josh’s blather and a sales office for her self-published screeds and manifestos.”

    FEO is a 501(c)(3) nonprofit organization incorporated in Vermont. FCA, formerly FAMSA, is a totally separate 501(c)(3) nonprofit incorporated in Pennsylvania. I’m reasonably certain that the FEO board has no intention of changing its name. It has five remaining board members and will be inviting new board members soon. Some funeral professionals have already volunteered to serve on the FEO board.

    18 August 2009 12:40
    Charles Cowling said…
    Sorry, it’s in three parts!:

    Josh has not yet been invited to “blather” in the FEO newsletter apart from one article copied from the FCA newsletter about a bogus insurance “society.” FEO has nothing for sale. My book, by the way, is not “self-published.” Yes, I happen to be married to the publisher, but my husband has been active in the small press movement–as a board member of a national independent publishers organization and currently as president of the Independent Publishers of New England. He publishes a wide range of nonfiction books–www.upperaccess.com

    Lynch writes: “It took them three attorneys, ten hours of deposition, and most of a year to dismiss this item, which could have been dismissed with an apology.” You got your apology, Mr. Lynch, but filed suit anyway. You also filed against three nonprofits and one individual. Corporations are not allowed do-it-yourself representation, hence the multiple lawyers and the lengthy deposition. Both Lynch and his lawyer repeatedly ignored the deadlines set by the court and were constantly given courtesy extensions. It was, indeed, a long year.

    Lynch whines, “The court ruled that as a public figure, I am not entitled to the same protections against libel as a private citizen . . .” No, Lynch would have had to prove a malicious disregard for the truth in order to prevail. The judge noted that my writings and that of FCA appeared to be true. One has to wonder why Lynch wanted more public “limelight.”

    Lynch, “Of course, the greatest threat to Lisa and Josh and their operations are funeral directors who do not fit the mold she’s cast them in – as predatory salespeople and ethically challenged hooligans.” I feel no threat whatsoever in dealing with the truth. I’m reasonably certain Mr. Slocum feels the same way. What does get my dander up is what Mr. Lynch calls “ethically challenged hooligans.” For example, in his letter of complaint to the FEO board, Mr. Lynch boasts, “Ours might be the only funeral firm in Michigan that has worked to place a crematory in a municipal cemetery, so that the 40% of families who cremate their dead hereabouts can avail of the same publicly funded and beautifully landscaped commemorative venue as those who bury their dead. This is a public cemetery — funded by tax dollars. We have no business interest in this, only civic.”

    One might think the crematory is now fait accompli. Apparently not so; the town fathers voted it down back in Feb. ’07 for conflict of interest. Mr. Lynch had offered to loan the town $85,000 with which to purchase the retort. Mr. Lynch is also the cemetery commissioner and, as such, is likely the person to decide whom to hire to run the crematory, how much to charge, and what kind of alternative containers the crematory will accept. “No business interest,” he says?

    The judge’s footnote on page 15 was indeed curious, accusing me of instigating things when it was Lynch who filed the suit–hardly “restrained”–creating “limelight” for issues that otherwise might have been ignored to Lynch’s benefit. Furthermore, it is not because of Lynch that I’ve been invited to testify before the FTC, the Senate Committee on Aging, or the International Congress on Care of the Terminally Ill, among others. I will continue to report on the hooligans if I think the public needs a heads-up.

    Lisa Carlson

    18 August 2009 12:42
    Alice Jones said…
    I am very serious about this……..
    I actually feel very sad about Tom Lynch. I feel no threat whatsoever in dealing with the truth.

    29 August 2009 13:56
    fortboise said…
    Sorry I’m late to the party, but having been caught in Mr. Lynch’s snit against larger organizations, I feel both qualified and impelled to contribute my two pence. I am on the Board of the FCA of Idaho, a small (550 or so members) affiliate of the FCA that was named as a defendant in Lynch’s lawsuit.

    Mr. Lynch’s libel suit provided me personally an interesting bit of legal education. I learned that one can make considerable trouble for others without having a valid case. It is downright laughable to read him deride how many attorneys and how much time was required to “dismiss this item.” He knows better than we how much money he spent in the effort. I’m confident it was well north of $5,000, even before his having to repay the expense to depose him, as ordered by the Court. Fortunately, the FCA and Ms. Carlson had insurance, and FEO was able to find inexpensive counsel.

    As I told Lynch in my one and only conversation with him, were he to win, and seize all the FCAI’s assets, it would not pay for his lawyer.

    His snark that “apparently they do not believe in do-it-yourself lawyering” shows ignorance, whether innocent or willful. The FEO and FCAI did want to do-it-ourselves, but the FEO was instructed by the Court that a corporation can not be represented pro se. For the FCAI’s part, we were able to convince Lynch’s lawyer to dismiss us from the suit as not properly under the jurisdiction of the Michigan Court. I was helped, and advised pro bono by two friends who are lawyers in Idaho (one a member of FCAI), but I did “do it myself” as it turned out.

    If Mr. Lynch has learned something useful about frivolity in legal matters, his money may have been well spent. From what you posted here, the quality of his education appears to remain an open question.

    The quality of his spitefulness, unfortunately, speaks for itself.

    Tom von Alten

    3 November 2009 00:19


    Charles Cowling

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