Maine and Virginia AGs’ Statements on Not Supporting the 48 State AGs’ Brief in Snyder v. Phelps

[UPDATE: I had originally just posted about the Virginia statement, because I had seen a news report that said that the Maine AG simply had a policy of not taking sides in civil cases, presumably meaning out-of-state cases; but commenter Postscript pointed out that the Maine AG also relied on free speech concerns, so I revised the post accordingly.]

Here is an account of the Maine AG’s statement:

Mills said in a Wednesday statement that the case is a civil action between private parties and that the state generally does not take sides in such matters….

“The utterances at issue in the Snyders’ claim for damages were offensive and outrageous,” Mills said in the statement. “But the First Amendment does not allow us to distinguish between polite speech and hateful or outrageous speech.

“This is not a political question, a test of patriotism or a popularity contest about how many people take offense at a particular statement,” she said. “Once we start carving out exceptions to the First Amendment for speech that is unpopular or offensive, then we start down a slippery slope that endangers the right of all of us to hold and express views that may be thought unpopular by others.” …

“While some have questioned the patriotism of our office because we declined to join the amicus brief, just the opposite is true,” Mills said. “Our families too have fought in battle. They fought for the constitutional rights of all our citizens, including Mr. Snyder.”

Here is the Virginia AG’s statement:

Attorney General Ken Cuccinelli has decided not to join other states in an amicus brief on behalf of Albert Snyder in Snyder v. Phelps, which will soon be heard by the U.S. Supreme Court. Mr. Snyder is the father of Matthew Snyder, a soldier killed in Iraq whose funeral was picketed by Fred Phelps and his followers at the infamous Westboro Baptist Church.

Here is our statement, given by Brian Gottstein, director of communication:

The attorney general’s office deplores the absolutely vile and despicable acts of Fred Phelps and his followers. We also greatly sympathize with the Snyder family and all families who have experienced the hatefulness of these people. The attorney general has always been a strong supporter of the military, both in his words and in his work as a Senator. But the consequences of this case had to be looked at beyond what would happen just to Phelps and his followers.

This office has decided not to file a brief in Snyder v. Phelps, because the case could set a precedent that could 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 damaged, the protestors could be sued. It then becomes a very subjective and difficult determination as to when the line is crossed from severely offensive speech to that which inflicts emotional distress. Several First Amendment scholars agree.

Virginia already has a statute that we believe balances free speech rights while stopping and even jailing those who would be so contemptible as to disrupt funeral or memorial services. That statute, 18.2-415(B), punishes as a class one misdemeanor (up to one year in jail and a fine of up to $2,500) someone who willfully disrupts a funeral or memorial service to the point of preventing or interfering with the orderly conduct of the event.

We do not think that regulation of speech through vague common law torts like intentional infliction of emotional distress strikes the proper balance between free speech and avoiding the unconscionable disruption of funerals. We think our statute does.

So long as the protesters stay within the letter of the law, the Constitution protects their right to express their views. In Virginia, if Phelps or others attempt this repugnant behavior, cross the line and violate the law, the attorney general’s office stands ready to provide any assistance to local prosecutors to vindicate the law.

Both the Maine and the Virginia AGs’ statements strike me as exactly correct, and I’m pleased that state attorneys general have been willing to say this. On the other hand, this response by Virginia House minority leader Ward Amstrong to the Virginia AG’s position strikes me as mistaken:

State Attorney General Ken Cuccinelli’s decision not to get involved in a legal battle between the family of a deceased Marine and a controversial, fundamentalist church is inexcusable, according to Del. Ward Armstrong.

Armstrong … said Wednesday that he does not know what Cuccinelli’s motives were, and he does not care.

He said that Cuccinelli’s decision amounted to “not sticking up for” families that have tragically lost members, and that is “just beyond me.”

“It is inexcusable to stand by and call something vile and not (try to) do something about it,” Armstrong added….

But the point of free speech is that the vileness of speech doesn’t suffice as a justification for “do[ing] something about” the speech, when the “something” involves massive government-imposed financial liability. Likewise, one aspect of the rule of law is that it’s better for some vile behavior to be tolerated, if suppressing it requires vague and broad legal rules that could also end up suppressing behavior that should remain protected.

The criticism of Cuccinnelli is bipartisan:

Del. Don Merricks … said “there are certain times when your right to free speech ends,” such as when it is mainly aimed at hurting a person or family….

“Sometimes they (protesters) go too far” in their comments, Merricks said, and as a lawmaker, “sometimes you have to make a statement” in opposition, even if you know it will not have much impact.

But this too strikes me as mistaken, for reasons I lay out in my forthcoming Cardozo Law Review de•novo 10-page article on Snyder. (Note that this link points to a new draft of the article, which is considerably improved — I hope — from the version that I put up a few weeks ago.)