Cuccinelli declines to file amicus brief in Snyder vs. Phelps case

Never one to follow the crowd, Virginia Attorney General Ken Cuccinelli has decided against filing an amicus brief in a case before the Supreme Court involving the controversial Westboro Baptist Church (WBC).  Cuccinelli is one of only two State Attorneys General in the entire country who have declined the opportunity to support Albert Snyder.  Snyder sued WBC after the hate group protested at his son’s funeral. Snyder’s son was killed serving in Iraq.

Snyder won his first case, but the decision was turned back by the Fourth Circuit Court of Appeals in Richmond, based on the 1st amendment. In addition to the overturned decision, he was ordered to pay the court costs of the Phelps family, the leaders of  WBC.

Snyder has gained the support of many politicians, including 42 U.S. Senators and every State Attorney General (including the District of Columbia) except for Maine and Virginia.  (Although, both Virginia Senators Mark Warner and Jim Webb did not sign on to the Senate version of the amicus brief)

In a case that pits the privacy of the families of those who paid the ultimate sacrifice in direct line with the First Amendment, Cuccinelli is siding with free speech.  In a statement released today explaining his decision, Cuccinelli spokesman Brian Gottstein said that the AG’s office  “deplores the absolutely vile and despicable acts of Fred Phelps and his followers,” but went on to write that “the consequences of this case had to be looked at beyond what would happen just to Phelps and his followers.”

Gottstein also pointed to an existing law in Virginia that he claims “balances free speech rights while stopping and even jailing those who would be so contemptible as to disrupt funeral or memorial services.”

Cuccinelli has long been an active supporter of the Military and their families, so it will be interesting to see how that loyal group reacts to this decision.

You can see the full brief that Cuccinelli declined to support here (via the Kansas State Attorney General).

The full statement from the Attorney General’s office is below:

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Attorney General Cuccinelli’s statement on not filing a brief in Snyder v. Phelps

RICHMOND (June 1, 2010) — Attorney General Ken Cuccinelli has decided not to join other states in an amicus brief on behalf of Albert Snyder in Snyder v. Phelps, which will soon be heard by the U.S. Supreme Court.  Mr. Snyder is the father of Matthew Snyder, a soldier killed in Iraq whose funeral was picketed by Fred Phelps and his followers at the infamous Westboro Baptist Church.

Here is our statement, given by Brian Gottstein, director of communication:

The attorney general’s office deplores the absolutely vile and despicable acts of Fred Phelps and his followers.  We also greatly sympathize with the Snyder family and all families who have experienced the hatefulness of these people.  The attorney general has always been a strong supporter of the military, both in his words and in his work as a Senator.  But the consequences of this case had to be looked at beyond what would happen just to Phelps and his followers.

This office has decided not to file a brief in Snyder v. Phelps, because the case could set a precedent that could severely curtail certain valid exercises of free speech.  If protestors – 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 protestors 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.

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