Mr. Cuccinelli rightly sides with freedom of speech

Saturday, June 12, 2010

KEN CUCCINELLI II, Virginia's attorney general, is not famously a champion of the First Amendment. As a state lawmaker, he sought to subvert it with legislation that would bar journalists from knocking on the doors of bereaved families. His colleagues in the General Assembly turned a deaf ear to that measure, and with good reason.

Now comes another, more agonizing case involving bereaved families, the First Amendment and Mr. Cuccinelli. In this instance, he was asked to join a lawsuit, brought by the family of a Marine killed in Iraq, against a group of hateful religious zealots who picket service members' funerals. The picketers contend that American combat deaths are to be celebrated as God's punishment for America's tolerance of homosexuals. The case is to be heard by the Supreme Court.

Mr. Cuccinelli refused to lend Virginia's support to the lawsuit. In taking that stand, he pitted Virginia against 48 other states that have joined it, effectively sided with a handful of gay-bashing provocateurs over the mourning family of a dead Marine who wanted to bury their son in peace, triggered bitter criticism -- and stood up for the First Amendment. Although Mr. Cuccinelli's legal judgments often seem clouded by his conservative ideological agenda, in this case he has made a good call, albeit an unpopular one.

It would be difficult to find a more loathsome band than Westboro Baptist Church of Topeka, Kan., whose sparse congregation mounts small but vocal protests at military funerals, schools and other venues around the country. The church -- better described as an extended family cult led by its patriarch, one Fred W. Phelps Sr. -- deploys its members, some of whom drag the American flag on the ground, with signs praising God for dead soldiers, improvised explosive devices and the attacks of Sept. 11, 2001.

The family of Marine Lance Cpl. Matthew Snyder, killed in action in Iraq, sued Mr. Phelps and the church, arguing that by picketing the funeral they had caused the family emotional distress, interfered with its privacy and abridged its rights to free exercise of religion and peaceful assembly.

Some of Mr. Cuccinelli's critics have noted that the right to free speech can be legitimately restricted, as in Oliver Wendell Holmes's famous example of falsely shouting fire in a crowded theater. But restrictions that safeguard public safety should not be wielded to stifle public speech, no matter how inflammatory or hurtful. The sensible way to deal with Mr. Phelps and his followers is by using the same regulations the authorities generally use to contain other obnoxious groups of protesters -- racists, neo-Nazis, skinheads. Keep them at a distance from which they cannot disrupt their targets, provide adequate police presence to deter violence, and let them spew. That approach ensures that in the free marketplace of ideas, their hate speech will fall on deaf ears.


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