One who would defend the [Constitution] must share his foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply. It is a fair summary of history to say that the safe­guards of liberty have often been forged in contro­versies involving not very nice people.

Kopf v. Skyrm, 993 F2d 374, 308 (4th Cir. 1996). Judge Hall was writing about the Fourth Amendment, but the sentiment applies most admirably to the First Amendment as well, as another 4th Circuit panel noted recently in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).

In that appeal, the 4th Circuit panel reversed a $5M judgment against the deplorable Fred Phelps (of Westboro Baptist Church fame) and two other members of his family-​​stroke-​​church for extremely disgusting and offensive state­ments made at and concerning their protest of the funeral of Marine Lance Corporal Matthew A. Snyder on March 10, 2006. The panel ruled that Phelps et al. should have prevailed at the trial court as a matter of law because their state­ments were protected by the First Amendment’s Free Speech Clause and the Supreme Court’s New York Times v. Sullivan, 376 U.S. 254 (1964), and Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) lines of cases applying the Free Speech Clause’s protec­tions to the pros­e­cution of civil suits.

According to the panel, the state­ments made by the church members (which I will not repeat here, but which can be found in the panel’s opinion here [PDF]) were either general state­ments of public concern that a reasonable person would not presume to refer specif­i­cally to any member of the Snyder family, or were state­ments so hyper­bolic and contex­tually related to the church’s broader protests that a reasonable person could not conclude that they made any state­ments of objec­tively veri­fiable fact.

The panel’s reasoning based on existing case law is sound, and I think that this is legally and morally the correct outcome, given the unfor­tunate context (discussed below). Mr. Snyder has appealed to the Supreme Court, and the Court granted certiorari earlier this month.

Today, Drudge Report links an Associated Press article in the Wichita Eagle (here) reporting that the 4th Circuit has also ordered costs of the appeal to the 4th Circuit to be paid by appellee, Mr. Snyder. The article states that the brief opinion did not give reasons why Mr. Snyder is being required to pay the costs of an appeal initiated (and even­tually won) by Phelps. But this assessment of costs against appellee is not all that myste­rious. The Fourth Circuit’s Local Rule 39(a)(3) states that “if a judgment is reversed, costs are taxed against the appellee.” (Here.) Note that costs do not include attorney’s fees. This is not a fee-​​shifting rule, but a cost-​​assessing rule, and a typical one at that. The AP article reports on an ordinary and expected conse­quence of losing an appeal, not on something inex­plicable or even contro­versial. What the AP article (and other misin­ter­pre­ta­tions of this ruling) does reflect are the sympathy the public feels for Mr. Snyder and the vague sense that there is something unjust going on in this case.

It seems unfair that Phelps should be able to harangue the family members of dead soldiers at their loved ones’ funerals and be protected from suit by the First Amendment, so it seems addi­tionally unfair that the family members might have to pay money to Phelps as a result. But the law here is correct and moral within the context of the current public property situation. And Mr. Snyder is not required to pay Phelps’ lawyer. He must pay for his own, and for the court costs incurred in arguing the appeal.

This would have never happened if the government didn’t own the streets and sidewalks near St. John’s Catholic Church in Westminster, Maryland. If such property were privately owned, Phelps would be stuck spewing his nause­ating bile from his own property back in Kansas. Rational people would decline to permit him to use their property for his pontif­i­cating (a word I’m sure he’d never use himself, given its papal reference). But since the government owns the roads and sidewalks, it must make the rules necessary for their use, and those rules must comport as closely as possible with the protection of indi­vidual rights. In the context of speech from public property, this means that government can only place reasonable time, place, and manner restric­tions on speech. This has led many (40, according to the 4th Circuit panel) states to attempt to enact restric­tions on picketing near funerals (specif­i­cally to combat Phelps), and Phelps has been successful in having some of these statutes thrown out where they were not drafted properly and discrim­i­nated on the basis of content.

[Sidebar: In a recent podcast, Dr. Leonard Peikoff addressed the question of the propriety of permitting the government to regulate the display of porno­graphic material on private property in such a way that it is promi­nently visible from public property. After making it clear that this would not be a problem if all property were privately owned, Dr. Peikoff suggested that the government would have to make the rules, and that it could legit­i­mately prohibit conduct or displays that would “raise objective question” or would be “objec­tively taken to raise fear in people as to what’s coming next.” I’m not sure exactly what the standard Dr. Peikoff would use is, based on these state­ments. Perhaps I will ask him to clarify.]

Phelps’ behavior is disgusting and, in a civilized society, he would be shunned and denounced as an idiot. In a capi­talist society, he would have no platform from which to speak except that which he could earn for himself. But in our mixed society, where the government controls the roads, what is the proper limit placed on speech in and around public property?