In an action that has outraged many citizens, the United States Court of Appeals for the Fourth Circuit has ordered the family of Lance Cpl. Matthew Snyder to pay the legal costs of the extremist Westboro Baptist Church, which picketed Snyder’s funeral and celebrated his death.

In 2006, the Fourth Circuit reversed judgments against Westboro, a decision that I agree with on first amendment grounds. The Supreme Court has taken up the case.

The Church has announced that it will use the money to fund more protests at the funerals of fallen soldiers and Marines where Church members wave signs reading “You’re going to hell,” “God hates you” and “Thank God for dead soldiers.”

The Fourth Circuit ordered the family to pay more than $16,000 in costs requested by Westboro for copies of motions, briefs and appendices, according to court documents.

The Church members view the entire matter in more apocalyptic rather than procedural terms. Phelps, one of its leaders and lawyers, stated:

“When the Supreme Court unanimously upholds the 4th Circuit, it’s going to put this country in a rage, and we will be expelled,” she said. “But whenever it was time for an epic event in the Bible, the thing that happened right before is the prophets were removed from the land, and that’s what’s going to happen to us. … We’re going to sprint to the end of this race.”

Rule 39 states:

Rule 39. Costs

(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise:

(1)if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree

otherwise;

(2)if a judgment is affirmed, costs are taxed against the appellant;

(3)if a judgment is reversed, costs are taxed against the appellee;

(4)if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.

I disagree with the assignment of such costs. For years, some jurists and politicians have been moving toward an “English rule” where losers pay costs in litigation. It is a rule that has a decidedly negative impact on public interest and consumer lawsuits. This is not as extreme as the English rule but it creates a chilling effect for any family that wants to be heard in such a case. It is particularly troubling when the family prevailed at trial in a clearly non-frivolous case. While I believe the Church has free speech rights in conducting these protests, I do not see the wisdom in the awarding of costs as a general rule in such cases against a private — as opposed to a governmental — litigant.

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