When the U.S. Supreme Court heard the case of Snyder v. Phelps earlier in its current term, the attorneys general of every state except two submitted briefs arguing against the proposition that the First Amendment protects the speech and expression rights of the Westboro Baptist Church, which protests at the funerals of American service members killed in action overseas and other individuals.
The exceptions were Maine and Virginia, where Attorney General Kenneth T. Cuccinelli, II, chose not to intervene in the case.
On the morning of March 2, the Supreme Court ruled, on a vote of 8 to 1 (Justice Samuel Alito dissenting), that even the most offensive speech is protected by the First Amendment.
Virginia ‘vindicated’
Cuccinelli issued a press release later in the day, stating that the Court’s ruling “vindicated the decision of this office not to join an amicus brief signed by 48 other states in support of tort liability and against Fred Phelps and the followers of the Westboro Baptist Church.”
Calling the speech at issue “vile and reprehensible,” Cuccinelli went on to say that the “First Amendment is designed to protect ideas, even ideas that upset, that inflame, or that the majority of the country would find offensive. It protects the rights of speakers we agree with, but also – and more importantly – it protects those speakers we would condemn.”
Cuccinelli’s news release quoted the majority opinion written by Chief Justice John Roberts, which said, in part, “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. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case."
‘Vile and despicable’
Noting his commitment to the rule of law and the First Amendment, Cuccinelli reiterated his agreement with the Chief Justice. Acknowledging his sympathy for Matthew Snyder’s family and others who feel hurt by the “vile and despicable” speech of the Phelps family and other members of the Westboro cult, Cuccinelli argued that a different decision by the Supreme Court would have set a bad precedent for future cases involving offensive or repugnant speech and expression.
“If the court had found against Westboro,” Cuccinelli said, “the case could have set a precedent that would 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 harmed, the protestors could successfully be sued.”
Time, place, and manner
Cuccinelli reminded his readers that the decision in Snyder v. Phelps does nothing to invalidate statutes that regulate the time, place, and manner of speech acts, restrictions that have been formulated in accord with previous Supreme Court rulings, and concluded by saying that he is “committed to vigorously defending Virginia’s funeral disruption statute, but I also must defend the First Amendment. If Phelps or others cross the line and violate the law, my office stands ready to provide assistance to local prosecutors to vindicate the law.”
The Westboro Baptist Church decision is SNYDER v. PHELPS (No. 09-751) 580 F. 3d 206.
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