Maine Democrat and Virginia Republican Only Dissenting AGs in Westboro Free Speech Case

Virginia attorney general Ken Cuccinelli has refused to file an amicus brief on behalf of the family of the Marine at whose funeral the Westboro Baptist Church protested--a brief that 48 other states' attorneys general have agreed to file. The Richmond Times-Dispatch has the story:

On Tuesday Cuccinelli's office announced that it is not joining 48 other states in filing a supporting legal brief on behalf of Albert Snyder, the father of a Marine killed in Iraq whose funeral in Maryland was picketed by Westboro Baptist Church of Kansas, a hate group.

Among other things, the church pickets funerals of American soldiers, claiming God has killed them for defending a nation of "sodomite hypocrites." Snyder is suing Westboro and its pastor, the Rev. Fred W. Phelps, for what he alleges was a disruption of the funeral for his son, Marine Lance Cpl. Matthew Snyder, who was killed in Iraq in 2006. Church members have become nationally known for heckling at military funerals and hoisting signs that berate mourners with slogans such as "You're in hell" and "God hates you." After Snyder won a $5 million verdict in district court, an appeals court reversed the decision, saying the Westboro protesters were exercising their First Amendment right to free speech. The case is now moving to the U.S. Supreme Court.

The attorney general's office said in a statement that it deplores "the absolutely vile and despicable acts of Fred Phelps and his followers," and greatly sympathizes with the Snyder family and "all families who have experienced the hatefulness of these people."

The statement said Cuccinelli's office chose not to file a brief because the case could set a precedent that could severely curtail certain valid exercises of free speech.

Maine attorney general Janet Mills, who has also chosen not to join the friend of the court brief, provided a statement arguing that the First Amendment "does not allow us to distinguish between polite speech and hateful or outrageous speech." The attorneys general from every other state and the District of Columbia have joined the brief.

The brief argues that most states have passed laws protecting the sanctity of funerals and restricting funeral picketing, and that these laws are constitutional for three reasons. First, funerals should be given the sort of privacy protections that the Supreme Court has ruled exist in a home. Second, funeral attendees should be considered a "captive audience" within the realm of the First Amendment and therefore cannot choose to ignore or get away from offending speech. Third, the brief argues that the Supreme Court and lower courts have recognized that "targeted picketing...is a particularly intrusive and harassing form of speech." The concurrent argument concerns existing state tort laws, which the brief says protect the "privacy and emotional health of grieving families."

A hearing date has not been announced, but the Supreme Court is supposed to hear the case during the 2010-2011 term.

Michael Warren, a Collegiate Network fellow, is an editorial assistant at THE WEEKLY STANDARD.