How Ken Cuccinelli Distorts the Meaning of 'Liberty'

Show me a politician who doesn't love "liberty," and I will show you an ex-politician.

In American history, "liberty" doesn't mean precisely the same thing as "individual freedom," and it doesn't have much to do with "equality." Dr. Samuel Johnson famously commented during the American Revolution that "the loudest yelps for liberty come from" Southern slave-owners. A century and a half later, the dyspeptic Sinclair Lewis wrote, "I tell you, an honest man gets sick when he hears the word 'Liberty' today, after what the Republicans did to it!"

When a federal district court in Florida held that the Affordable Care Act is unconstitutional, Virginia Attorney General Ken Cuccinelli hailed the result:  "Liberty has scored another victory today."

Freedom to write and think doesn't mean much if one has to worry about being charged with fraud if the government doesn't like your conclusions.

What would American liberty look like if--as he clearly hopes will happen--Ken Cuccinelli and his Tea Party allies take over?

Would it, for example, include broad freedom to think and write as we wish?

Cuccinelli recently underlined his support for the First Amendment in the wake of the Supreme Court's decision in Snyder v. Phelps (PDF). That case affirmed the right of members of the Westboro Baptist Church to picket the funerals of American service personnel as protest against our society's tolerance of homosexuality. "I absolutely deplore the vile and despicable acts of Fred Phelps and his followers," Cuccinelli told the Richmond Times-Dispatch after the decision. But the First Amendment "protects the rights of speakers we agree with, but also -- and more importantly -- it protects those speakers we would condemn."

Cuccinelli was one of only two state attorneys general who did not sign a brief urging to Court to permit tort damages against the Church for inflicting emotional distress on the grieving family. 

The decision in Snyder was pretty clearly correct. But we should take a second look at the Virginia AG's devotion to the rights of "speakers we would condemn."

As a Virginia state senator, Cuccinelli tried to make it a criminal offense for reporters to ring the doorbells of the recently bereaved. Senate Bill 1120, Cuccinelli explained, was designed "to keep reporters from bugging people" who are grieving. "There's obviously more than enough scuzzball reporters out there who don't have a shred of human decency to give a flying rat's tail about the condition or feelings or circumstances of these families -- they just want a juicy quote from them," he said shortly before the bill died an ignominious death in the General Assembly.

So the pain of the grieving family can't be protected from homophobic troglodytes -- but the city reporter for the local paper can be jailed. Cuccinelli's spokesman, Brian Gottstein, explained to me that there's no contradiction at all between the two positions. "SB1120 was about more about regulating private property," he wrote in an email. "As far as we know, the Westboro protestors have always protested on public property." 

This "property rights" formalism won't wash.  As the Supreme Court pointed out in the recent case of Watchtower Bible & Tract Society v. Village of Stratton, government can't forbid non-commercial speakers from knocking on doors unless the homeowner has told them their presence isn't welcome. Having been a city reporter myself, I can tell you that the standard procedure is to ring the family's doorbell and ask them if they want to make a comment on their loss. If they say no, the reporter turns and goes.

But often the bereaved want to speak to the public about the person they have lost.  After Matthew Snyder died, for example, the Baltimore Sun published this report:

At his mother's townhouse in Westminster last night, the family was still reeling from the news of his death, which was delivered to them Friday.  Corporal Snyder's mother, Julie Snyder, was too grief-stricken to talk but allowed her sister, Cathy Menefee, to speak for the family. She spoke of his keen sense of humor and an unwavering sense of responsibility, which culminated in his decision to join the military. "It sounds so cliche, but he died doing what he wanted to do," Menefee said. "He always wanted to be a Marine."

Was this intrusion by The Sun really worse than Westboro Baptist Church's picketing of Matthew's funeral?  Who are the "scuzzballs" in this story? 

If it were just a matter of this one idiotic bill, it wouldn't really be worth talking about. But Cuccinelli's recent actions evince a real hostility toward some "speakers we would condemn"-- at least if those speakers are disagreeing with him about an important public policy issue.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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