The United States, as currently constituted, is a utilitarian nation. We embrace the inherent virtue of certain “natural” rights, and tolerate the frequent harm that some citizens commit while exercising the rights that all of us cherish. I think that is the correct philosophy, but it requires us to grit our teeth and re-read the Bill of Rights when the formula produces a nauseating result that is nonetheless right in our democratic culture. It was right to let the Nazis march in Skokie. It was right to let the Klan hold their non-violent, white supremacy demonstrations. And it was right for the court to make Albert Snyder pay the court costs when he lost his lawsuit against a hate group that disrupted his son’s funeral. No, it wasn’t fair, or kind, or empathetic. It was only right.

This is what ethicists call an ethical conflict, when different ethical principles dictate opposing results. In the United States, respect for an individual’s autonomy and right to be heard trumps almost everything else.

The hate group, for that is what it is, is the Westboro Baptist Church, about which I wrote in 2006:

“The group (Cult? Gang?) first gained notoriety by disrupting the 1998 funeral of Matthew Shepard, the young gay Wyoming man who was murdered in one of America’s most notorious hate crimes. More recently they have been heckling families at the funerals of fallen U.S. soldiers, not out of opposition to the war in Iraq but because they believe the country is being punished for its acceptance of gays. Typically the protestors hold up signs mocking the funeral and chant derisive and sarcastic slogans aimed at upsetting the mourners. Their protests achieve the desired result, which is to gain media publicity for their cause. The fact that coverage is invariably negative does not appear to faze the protesters, who are primarily made up of the offspring and relatives of Fred Phelps, who could be charitably described as a fanatic, less charitably described as a malignant whacko. He has also led his followers to protest at the funerals of Frank Sinatra and Bill Clinton’s mother.”

The Phelps cult followed this script during the funeral of Marine Lance Cpl. Matthew Snyder, who was killed in Iraq, shortly before I wrote my commentary. His father, Albert Snyder of York, Pa., sued the group for intentional infliction of emotional distress, defamation and invasion of privacy, and a sympathetic Baltimore jury ordered the church to pay $5 million in damages. This week, the Court of Appeals for the Fourth Circuit reversed the verdict and ordered Snyder to pay Phelps $16,510  to cover court costs. Understandably, this has Snyder’s sympathizers, which should be everyone, up in arms, but it is the only reasonable result. The law suit was a risky one, because it challenged a core Constitutional Right, free speech in a public place. The government cannot pick and choose which speech it likes and doesn’t like, and prohibit what it considers wrong, offensive or hateful.  While the Court wasn’t required to award court costs to Phelps, not to do so would endorse the infringement of free speech by intimidation as long as a judge sympathizes with the object of the speech. A wealthy corporation could break a protesting environmental group by making it pay to defend dubious lawsuits.  A company could sue to have picketers removed. The court’s action, cruel as it was to the Snyder family, protected the Bill of Rights, which is ultimately more important to the nation than Albert Snyder, you, or me. If one challenges obnoxious or hateful speech in court,  it comes with a risk. The First Amendment doesn’t distinguish between right speech, wrong speech, cruel speech, offensive speech, and such a lawsuit may be on the right side of fairness, but the wrong side of the Bill of Rights.

I have had the unpleasant experience of having my arm twisted to remove a completely factual and legitimate post about an unethical business practice by the threat of a lawsuit. If I had been able to spend the time and invest the resources to go to court, I would have prevailed, and I would have probably received court costs. I couldn’t spare the time or money, however, so the threat worked. The ruling in the Snyder case has to be understood as a judgment, not in favor of the despicable Phelp’s group, but in defense of everyone’s right to complain, protest, picket and argue online, in the public square, or at a cemetery. Without the ability to be reimbursed for court costs, anyone’s speech, however justified, articulate and reasonable,  could be stifled by a series of spurious lawsuits.

What is the solution to this ethical conflict? Those who sympathize with the plight of the Snyders and the other families who have been harassed by Phelps and his minions might pool their funds to lobby for a law that protects funerals from such activities, and hope that it passes Constitutional standards. Beyond that, there isn’t much that can be done, unless the Westboro Baptist Church miraculously acquires some ethics to go with their rights.