By Julian Walker
© June 2, 2010
Virginia Attorney General Ken Cuccinelli has endured his share of criticism for some of the legal fights he’s picked as the state’s top prosecutor.
Now he’s getting grief for not joining a particular courtroom battle.
Cuccinelli has declined to join in a free-speech case heading to the U.S. Supreme Court that stems from a protest by anti-gay activists at a 2006 funeral for a Marine killed while serving in Iraq. As “vile” as the protesters’ methods are, banning them could set a precedent that would infringe on the rights of countless other protesters, from environmentalists to anti-abortion advocates, Cuccinelli’s spokesman said.
Virginia is one of two states – Maine is the other – that hasn’t joined the case, which has attracted bipartisan support from powerful lawmakers on Capitol Hill, according to an attorney for the family of the slain Marine.
The case stems from a protest at the March 2006 funeral of Marine Lance Cpl. Matthew Snyder by a church congregation from Topeka, Kan.
Westboro Baptist Church members believe the deaths of American servicemen and women are divine punishment for the nation’s policies toward gays and lesbians. Church members frequently protest at military funerals. At Snyder’s service in Maryland, participants waved signs with anti-gay slogans such as “Thank God for Dead Soldiers” and “Semper Fi Fags,” according to court records.
Snyder’s father, Albert, filed a lawsuit that alleged that church founder Fred Phelps and other protesters caused him emotional distress, defamed his son’s name and invaded the family’s privacy. A jury in a Maryland federal court awarded him millions in damages.
That verdict, and the award, was overturned when the U.S. 4th Circuit Court of Appeals in Richmond ordered Snyder to pay Phelps’ legal bill and ruled that as inflammatory as the church’s message is, it is protected speech under the First Amendment of the Constitution.
And that’s essentially Cuccinelli’s take.
Cuccinelli’s spokesman Brian Gottstein said in a statement that there is potential peril in setting “a precedent that could severely curtail certain valid exercises of free speech.”
That rationale is unacceptable to Sean E. Summers, a Pennsylvania attorney representing Snyder.
“There’s only one side of this issue to be on,” he said, “and apparently the Virginia attorney general is on the wrong side of it.”
Not everyone has criticized Cuccinelli, who has an unlikely ally: the ACLU of Virginia.
“In order to protect all free speech, you sometimes have to protect despicable speech,” said Kent Willis, executive director of the state ACLU, which has opposed Cuccinelli on other matters, including his quest to obtain the research records on climate change of a former University of Virginia professor.
At question in the protests of the military funerals are the “conflicting interests” of free speech and privacy rights, said University of Richmond law professor Carl Tobias, who predicted the Supreme Court will uphold the appellate court decision.
Virginia has a law that “balances free speech rights while stopping and even jailing those who would be so contemptible as to disrupt funeral or memorial services,” Gottstein said in a statement, referring to a statute that defines disorderly conduct in public places.
That law was updated in 2006 to include funerals and memorial services. The change was made in anticipation of pickets by Phelps and his followers, said Del. Charles W. “Bill” Carrico, a Grayson County Republican who successfully carried that legislation.
Julian Walker, (804) 697-1564, email@example.com