We’ve been writing about Virginia Attorney General Ken Cuccinelli for a while now, chronicling his investigation of a former state university climate scientist, and his decision to sue to have the new health care reform law overturned. And now, Cuccinelli is one of only two state attorneys general — the other is Democrat Janet Mills of Maine — not to join in a Supreme Court challenge to stop anti-gay Westboro Baptist Church from picketing at military funerals.
“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,” said Cuccinelli spokesman Brian Gottstein, in a news release.
The litigation involves a $5 million judgment that a Maryland jury awarded to the father of a slain Marine, in a lawsuit after the organization led by Fred Phelps picketed his son’s funeral with a message that the deaths of American soldiers are a punishment for America’s tolerance of homosexuality. An appeals court then reversed the judgment, declaring that the Phelps demonstration was “imaginative and hyperbolic rhetoric” protected by the First Amendment. That decision is currently being appealed to the Supreme Court.
The plaintiff’s attorney Sean E. Summers attempted to get all 50 state attorneys general to join the appeal, starting with the state attorney general’s office in Phelps’s home state of Kansas. In the end, 48 states and the District of Columbia signed on, but not Virginia or Maine. “It’s just bizarre that Virginia is not on board,” Summers told the Associated Press. “From a political point, I think it’s suicide.”
Cuccinelli spokesman Brian Gottstein told the AP that Cuccinelli’s decision does not amount to siding with Phelps. “I have known him for years and there is no way on earth the attorney general or anyone in this office believes any of the venom, the ridiculous nonsense that is spewed from these Westboro people,” said Gottstein.
However, Gottstein said that the decision was made that a judgment against Westboro “could be perilous to the First Amendment” by opening the door to lawsuits against other kinds of protesters.
Gottstein also sent TPM the office’s press release, which explains:
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.
The Maine Attorney General’s office did not return our request for comment.
