Va. AG says U.S. SC proved him right in funeral protest case

John O'Brien Mar. 3, 2011, 12:56pm


WASHINGTON (Legal Newsline) - The U.S. Supreme Court's decision in a controversial free speech case has vindicated Virginia Attorney General Ken Cuccinelli's position as an outsider, he said Wednesday.

The Court ruled in an 8-1 decision that a Westboro Baptist Church group led by Fred Phelps was protected by the Constitutional right to free speech when it picketed the funeral of Matthew Snyder, a soldier killed in Iraq.

Attorneys general from 48 states and the District of Columbia said they had an interest in protecting the sanctity of funerals and that they have a duty to protect the emotional well-being of grieving families through tort law.

"For 100 years or more, the states have imposed tort liability for inflicting emotional harm on the families of the deceased," their amicus brief filed in June with the U.S. Supreme Court said. "The states' tort law will not turn a blind eye to psychological terrorism that targets grieving families."

Only Cuccinelli and Maine's then-attorney general, Janet Mills, did not add their names to the brief. Cuccinelli said his decision not to join was an unpopular one and that he deplored the acts of Phelps and his followers, but the case could have set a dangerous precedent.

"If the court had found against Westboro, the case could have set a precedent that would severely curtail certain valid exercises of free speech," he said. "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 harmed, the protestors could successfully be sued."

Virginia has a law criminalizing disruptions at funerals, he added. In addition to defending that, Cuccinelli said he must also defend the First Amendment.

Chief Justice John Roberts wrote the opinion.

'Westboro believes that America is morally flawed; many Americans might feel the same about Westboro," he wrote. "Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible.

"But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder's funeral, but did not itself disrupt that funeral, and Westboro's choice to conduct its picketing at that time and place did not alter the nature of its speech.

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and-as it did here -- inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker."

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