Is Cuccinelli Right?

Its easy to talk about principles when your doing what is easy, but what does a limited government, free-speech politician do in a case like Snyder vs. Phelps?  AG Cuccinelli has said he will not file an amicus brief on this saying that if this speech isn't protected, what speech is?  Here is a good editorial from the Fredericksburg Free-Lance Star, with a brief quote from Ken he put on his Facebook page:

Before you read the editorial below, I have to say: 1) how deplorable I think these Westboro folks are; 2) note that we have a funeral disruption statute, so if they performed their antics at a Virginia funeral, they could be arrested; and 3) say that along with all of you, I have great gratitude, affection and respect for our military and their families - especially those that gave their lives to protect our freedoms. This is a hard case, but we need to protect the constitution even in difficult cases.

From the paper:

LOOKS LIKE they didn't bury John Brown deep enough. The spirit of the fiery-eyed old fanatic seems to have resurfaced in Kansas, scene of some of his bloodier work, in the person of the Rev. Fred Phelps, pastor of the Topeka-area Westboro Baptist Church and oracle of such inspired messages as "God hates fags" and "Thank God for dead soldiers." In the case of Snyder vs. Phelps, thank God for Ken Cuccinelli.

Mr. Cuccinelli has declined to join the attorneys general of 48 states who want to financially punish Phelps and his acolytes for displaying inhumanly cruel posters ("You're in Hell," "God hates you") near the church funeral of Lance Cpl. Matthew Snyder, a Marylander killed in Iraq in 2006. In Phelps' view, GIs who die in foreign wars get what's coming to them for defending a country that tolerates sodomy. The father of the young Marine sued Phelps, et al., for depriving him and other family members of the opportunity to bury their loved one with dignity. The case is now before the U.S. Supreme Court with a $5 million judgment in the balance.

Mr. Cuccinelli and his counterpart in Maine are the only AGs in the country not to file amicus briefs in support of Albert Snyder, the Marine's father. But Mr. Cuccinelli and Maine AG Janet Mills are on the side of the angels--at least the ones that hover over the Bill of Rights. As Mr. Cuccinelli says, "[T]he 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."

Gagging Fred Phelps and his followers--except within the bounds of certain content-neutral time, place, and manner restrictions--would strip them of their First Amendment rights. Most of us, with the help of a couple of double-malt scotches, could probably bear that. But the danger in exempting some Americans from such constitutional protection is that the government will take a liking to making people shut up or else, and that it will then start manufacturing gags wholesale.

Virginia ACLU Director Kent Willis rightly calls Snyder a "fundamental [First Amendment] gut check. This kind of deplorable free speech must be protected in order to make sure all speech is protected."

Just so. And if that means letting some fragrantly foul specimens of the human race continue their deranged pickets, well, cheer up. One day they'll see another "You're in Hell" sign--and know they're not in Kansas anymore.

Comments

[jed]

Cuccinelli is a disgrace, and, more importantly, he is wrong on the case. The First Amendment was never intended to be read so broadly that it impedes on a famly's right to bury their dead child in peace. Are families now required to hold all funeral services inside buildings so that they won't have to hear the rants of those lunatics whose sole purpose is to disrupt the services? Have we come to a point in the U.S. that families will not be able to hold a gravesite service because a crazed group wants to conduct a loud protest? The First Amendment is not absolute and it is not free of all restrictions. The Supreme Court, hopefully, will have enough common sense -- like the jurors and judge in the case -- to keep these kinds of people away from the funerals of our fallen. As for Cuccinelli, he is such a coward. He is more concerned about being the farthest right on the abortion issue, so he has taken their side. There is no middle ground on this issue -- you either stop the protests or let them continue. Cuccinelli has decided to stand by and do nothing to stop them. What a joke.

[Anon.]

I agree with the AG's reasoning, although it's a painful place to come to. These Westboro so-called church people are really vile with their message and how they deliver it.

Neutral time, place and manner restrictions on free speech are almost always okay. When you wade into controlling the content of the message, then you're usually not okay.

Virginia already has time, place and manner restrctions to cover these Westboro lunatics, or anyone else, who disrupts a funeral. Virginia has done its job. If the law has to be enforced, then the AG will do his job. I hardly call that doing nothing.

[Fairfax GOPr]

AG Cuccinelli is correct (gagging a little to have to admit it with this despicable 'church' group) - Ken has proper legal take on this...remember, the law is his job now, not political platitudes to appease one side of the party aisle. Too bad he spoke too early on the Fimian support - bet he is wishing he hadn't handed over that support based on what has come out about Fimian's past. Just like McDonnell wishes he hadn't handed O'Brien early thumbs up as the come back kid (now just the 'come back in the store and return your opponents lit kid')

[Mike the Analyst]

This case is to Freedom of Speech as is this case is to Abortion: a case of a 15 year old girl who was raped and is pregnant with a child with a severe birth defect that will probably not live much past childbirth.

When you look at the abortion case, a pro-life person can seem pretty harsh if that person sticks to their principles and says the girl should carry the baby to term.

That's what we have here. We must be careful (and our AG thankfully is) over rampaging over certain principles because a particular case is SOOOO Bad that it seems okay to do so.

[Curious]

Cuccinelli makes reference to a "funeral disruption statute" under Virginia law that might protect families from this sort of disruption.

Does anyone know which part of the Virginia code that's in or what it says?

[Anon.]

Curious: See the Code of Virginia Section 18.2-415. Disorderly Conduct. Read section (B).

[Curious]

So, not only does Virginia law make it a Class 1 misdemeanor to disrupt a funeral, but it permits whomever is in charge at the funeral to enlist the attendees in physically expelling the disruptors from the site.

That being the case, does anyone know what the distinction Cuccinelli is making between Virginia law and this case? A Class 1 misdemeanor in Virginia allows for a sentence of up to a year in jail and/or a fine of $2,500.

I suppose that could hinge on how the courts define "disrupt".

[The Donkey]

Standing up for principles, huh?

Then why did Cooch file that obnoxious brief in DiGiancinto v. Rectors and Visitors of George Mason University?

If the University wanted him to do something that was against his "principles," Cooch could have gotten appointed special counsel to do it for him.

Another example of a supposedly "principled" politician forgetting his promises to the people who put him there.

[The Donkey]

http://voices.washingtonpost.com/virginiapolitics/2010/05/virginia_gun_rights_leader_bla.html

[SilverFox]

We've had a changing degree of socialism so why not try some conservative ideas for the same amount of time.

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