The Virginia Attorney-General is correct not to sign a brief against the Westboro Baptist Chuch

Here’s the thing: I’m not normally a fan of my state’s Attorney-General, Ken Cuccinelli. He’s far, far too conservative in my view - I was embarassed by his memorandum instructing state institutions not to include sexual orientation in their anti-discrimination policies, and his decision to reprise Ashcroft’s “boobgate” thing was just plain odd.

That being said, he’s just taken a position that I heartily agree with - and it’s a sufficiently difficult position to take that I truly respect him for it. The Westboro Baptist Chuch, as we know, likes to protest the funerals of dead soldiers. This gets a lot of people, understandably, very very upset, and the family of one of these soldiers has filed suit against them. That suit had wound its way up to the Supreme Court, and 48 states have signed amicus briefs on behalf of the plaintiffs.

Not the attorneys-general of Maine or Virginia, though. Cuccinelli has taken pains to say that, while he thinks what the Westboro Baptists have done is hateful and horrible, he doesn’t want to chill free speech rights with this litigation. And he’s right. Absolutely right.

A right to free speech that does not protect speech the majority of people find detestable is not a right at all - it’s a privilege, to be taken away whenever the majority wishes. Much of the point of freedom of speech is not that it’s a democratic value - it’s a check on democracy, a guarantee that the will of the people can never stiffle dissent, no matter how distasteful.

Cynics might suggest that Cuccinelli is refusing to sign this amicus brief because he doesn’t truly oppose what the Westboro Baptist Church stands for. I don’t believe that for an instant. Yes, Cuccinelli may well be a homophobe. He’s certainly very very conservative. However, he’s not an evil man - and Fred Phelps almost certainly is. I think Cuccinelli is taking a position that may well cost him a lot of his conservative base, and he’s doing it in the name of a core American value.

Well done, sir. I may vociferously disagree with you tomorrow - in fact, it’s all but certain - but I’ll never doubt that you are a man of principle and integrity.

ETA: Oh, and here’s the Post’s coverage:

I agree that Westboro’s obnoxious antics are protected by the First Amendment and should not be suppressed just because they are unpopular. The measure of free speech is the protection of the most unpopular speech.

What I don’t understand is why so many people actually let themselves be fished in by Westboro’s act. All the outrage and hand-wringing is exactly what they want. The best way to deal with them – as with any speech one finds offensive – is to ignore it.

Do you have any evidence for that?

I think that Virginia should participate in the lawsuit, first because I don’t think this this violates the Phelps’ freedom of speech, and secondly, Virginia’s got a law forbidding disrupting funerals. If the whole thing is unconstitutional, the court will find it so, but the laws of Virginia say it’s not, and unless and until the Court so finds, it’s the responsibility of Cuccinelli to act in accordance with the will of the state, and I find it slightly odd that the Cooch insists on strict enforcement of the law with the college gay antidiscrimination incident, but doesn’t in this case.

Virginia’s law is consistent with the First Amendment:

So the AG is not refusing to defend Virginia’s law. He’s refusing to join an argument for extending the reach of other laws past the boundaries of the First Amendment.

I also agree with a refusal to sign such a brief. Phelps is a piece of dirt, but about half of what comes from any church is pretty disgusting to me. The only reason anyone is up in arms about this is that he says mean things about the troops. When it was just Matthew Shepherd, that was peachy.

Is their anything to address the issue of mourner’s rights to free speech, assembly, religion, etc.? I wouldn’t go after those disgusting people in any way that might diminish everyone’s free speech, but I don’t know how the issue of using one person’s free speech rights to drown out another’s has been addressed. We currently have laws that limit the time and place of free speech to protect the rights of others. Are there any that would apply here?
I tend to think AGs and other politicians on either side of this issue are not taking a stand based on principle, but the principle is there anyway.

You answered my question while I was still typing. Thanks for some info, and your prescience.

Indeed - if freedom of religion means freedom from religion, doesn’t freedom of speech also mean freedom from speech?

I don’t suggest that someone can walk down Broadway in New York and complain that everyone is talking but just as calliung “Fire!” in a crowded theatre is not protected, why should screaming at bereaved mourners at a funeral be protected as well? Not because it is crass but because the right to be free from speech should be a right as well?

Two explanations:

  1. Mr. Cuccinelli has recently (i.e. within this past month) discovered an appreciation (above and beyond that of 48 out of 49 other states Attorneys General) for the importance of not using government power to chill freedom of speech.

  2. Mr. Cuccinelli is refusing to sign this amicus brief because he doesn’t truly oppose what the Westboro Baptist Church stands for (or, perhaps more charitably, because he doesn’t want to offend others who sympathize with the WBC).

I’ll take Door Number Two.

It’s unclear to me how your link in item (1) relates to free speech: in that case, he is pursuing not speech at all, but the receipt of money under false pretenses.

Why should I have look at someone burning a flag? Shouldn’t I have freedom from that sort of “expressive conduct” that isn’t even speech?

The concept of free speech and the right to be heard is meant to protect free speech in many forms. One of those is the right to be heard in a public assembly. That does not mean you get to interrupt others. Nor does it negate laws affording people a general peace. The right to speak cannot be viewed as a law that forces people to listen. In that respect, people have a right to peaceably assemble without harassment. We have laws that address the disturbance of that peace. While that will always be difficult to define, events such as funerals are designed to impart comfort to people in distress. They are a conveyance of a message and are a form of free speech unto themselves in this respect. What the WBC does is deliberately preach the peace of a funeral as well as the message it is meant to convey. It is deliberate harassment done with great malice of thought.

I agree that freedom from speech is important. I don’t want someone exercising their right to free speech at the top of their lungs on the street outside my bedroom when I am trying to sleep. There are plenty of regulations already limiting free speech to appropriate circumstances, so long as those laws don’t curtail free speech. I’d like to see the legal arguments on that subject to see why those approaches weren’t taken here.

The ‘fire in a crowded theatre’ thing messes up these discussion. The original quote was ‘falsely shouting fire in a crowded theater’, and relates to actions by the government following the incident. In this case we are talking about ‘prior restraint’ of speech, and theater owners are not allowed to gag their patrons to prevent someone from triggering panic.

I think it should depend on the situation. I think there are instances where one’s freedom from speech should be protected as well as respected. I am not surprised that you can come up with (many) cases where it wouldn’t be; are you surprised I can come up with situations where it should/could be?

Or do you think that nobody ever has the right to be free from someone running up to them at a funeral, screaming at them from five feet away right as the pastor is trying to speak that their loved one is in hell and soon, they will be too?

Brandenburg v. Ohio (1969) states that the government “cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action” (yes, it’s Wikipaedia, but I am at work and I think this direct quote represents the decision fairly) - so all we need is for a bunch of pissed-off mourners to get all lawless on their asses a few times and voila! The speech is no longer protected.

If they did what they usually do to me at the funeral of a loved one, you would bet it would be likely to incite an unlawful beatdown. And I cannot be alone here.

Who made you look at a burning flag?

I’m a Virginian and I’ve kept fairly close tabs on Cuccinelli since he was my state Senator for several years prior to being elected to the Attorney General’s office. Over the years, I’ve not always agreed with him, particularly a few of his recent decisions as Attorney General, but none of it has exactly been a surprise or inconsistent with his established views. This, however, is a case where I completely agree with him.

I too find the actions of the WBC thoroughly disgusting, but I also hold the value of Free Speech as something that is at the very core of American values and this is exactly the sort of situation that it exists to protect. What good is a right if, when exercised in a way that offends the majority, it can be removed? The founding fathers made it abundantly clear, and I completely agree with them, that tyranny of the majority defeats many of the underlying principles of our way of life.

So here, I agree with the OP, that Cuccinelli took a difficult and unpopular stand, but I think he made the right one. And to those who think that he’s not sincere with his explanation, what could he do to make it clear that his motives are what he says they are and not because he hates gays? If anything, the fact that he did it knowing it would piss off a lot of his supporters seems to be pretty strong evidence that it wasn’t politically motivated.

Also, I’m interested if there’s been anything said about the Maine Attorney General. Has he given similar reasons? Is he getting a lot of heat for it? Are we only hearing about this because Cuccinelli has already been in the news a fair amount and is in Virginia and, thus, fairly close to home for a few major news outlets?

Bricker, are you quoting case law? What case?

Statutory law. Va Code § 18.2-415.

The hypothetical flag burner exercising his rights under Texas v. Johnson.

This is unlikely only because Westboro has very few if any sympathizers.