Cuccinelli says funeral protest case could curtail free speech
Post Supreme Court reporter Robert Barnes wrote this morning about the case Snyder v. Phelps, including Virginia Attorney General Ken Cuccinelli's decision not to write a friend of the court brief on behalf of plantiff Albert Snyder. Virginia and Maine are the only two states in the country who haven't joined the suit, which will be heard by the court this fall, on behalf of Snyder, who is suing the Westboro Baptist Church in Topeka, Kan., and its founding pastor, Fred W. Phelps Sr. for disrupting the funeral of his late son, Marine Lance Cpl. Matthew Snyder.
The Kansas church has made a show of picketing funerals of military personnel killed in Iraq and Afghanistan, arguing military deaths are America's punishment for tolerating homosexuality. Cuccinelli spokesman Brian Gottstein told Barnes that Virginia's attorney general chose not to get involved with the case because he is afraid of setting a precedent to allow free speech to be curbed if it causes "emotional distress," as Snyder's lawyers have argued.
Through Gottstein, Cuccinelli has just issued a fuller explanation of his decision not to write a friend of the court brief. In a statement, Gottstein said the attorney general "deplores the absolutely vile and despicable acts of Fred Phelps and his followers" and has great sympathy for the Snyder family and family of other military personnel disrupted by the church protests. But he reiterated Cuccinelli is concerned about the precedent that could be set in the case.
In a statement he said:
If protesters -- whether political, civil rights, pro-life, or environmental -- said something that offended the object of the protest to the point where that person felt damaged, the protesters could be sued. It then becomes a very subjective and difficult determination as to when the line is crossed from severely offensive speech to that which inflicts emotional distress. Several First Amendment scholars agree.Virginia already has a statute that we believe balances free speech rights while stopping and even jailing those who would be so contemptible as to disrupt funeral or memorial services. That statute, 18.2-415(B), punishes as a class one misdemeanor (up to one year in jail and a fine of up to $2,500) someone who willfully disrupts a funeral or memorial service to the point of preventing or interfering with the orderly conduct of the event. We do not think that regulation of speech through vague common law torts like intentional infliction of emotional distress strikes the proper balance between free speech and avoiding the unconscionable disruption of funerals. We think our statute does. So long as the protesters stay within the letter of the law, the Constitution protects their right to express their views. In Virginia, if Phelps or others attempt this repugnant behavior, cross the line and violate the law, the attorney general's office stands ready to provide any assistance to local prosecutors to vindicate the law.
June 1, 2010; 3:42 PM ET
Categories: Ken Cuccinelli , Rosalind Helderman
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