Once again, conduct that would arguably have caused no harm or offense to anyone in its intended venue and with its intended audience has been condemned as wrong because a third party presented it to an audience that would be hurt and offended by it. This has become a recurring theme in our electronic world, where cell phone cameras, video cameras and recorders are ubiquitous, and the internet can turn any private indiscretion into an international disgrace. This time, it is two Penn State students costumed as Virginia Tech shooting victims at a campus Halloween party whose Facebook photos are bringing them hate mail, death threats and verdicts of depravity from college officials, journalists, bloggers and pundits. Where do the ethical duties lie? Did the students do wrong, or were the individuals who publicized their conduct where it would be most unwelcome guilty of the ethical breach?

These are not as easy questions. To declare all outrageous, mean-seeming, over-the-top jokes, comments and gestures to be per se wrongful, regardless of their spirit, intent, and where they take place, is to inflict burdensome self-censorship on every person every minute of the day. That is an unacceptable and unreasonable standard, one that inhibits free thought, creativity, experimentation, intimacy and freedom. Let’s examine the spectrum…

1. Thinking outrageous, mean, immoral or hurtful thoughts. Unethical? Surely not. Thoughts are not actions. Thoughts are not necessarily even motivations. We should be free to think about anything without feeling guilty or regarding the thought itself as a wrongful act. We must be able to chuckle at a thought, no matter how taboo, tasteless or offensive another would think it to be.

2. Expressing those same private thoughts to yourself. Surely we cannot declare this as wrongful conduct either. You are the one person who will not misinterpret want you say, mistake its intent, or be insulted by its content. [Good point, Jack!]

3. Expressing those thoughts to one person who has your absolute trust. We cannot reasonably declare this to be wrongful conduct. “I had an awful thought the other day…”—shouldn’t we all have someone we can tell about our awful, politically incorrect, controversial thoughts without fear of exposure or condemnation? The same should apply to potentially offensive (to others) jokes exchanged between two trusting individuals who know what feelings they do or do not express. The conduct’s purpose is to provoke laughter. A private joke between two friends of similar senses of humor, even if that humor is black, ironic, bawdy or in bad taste, cannot be unethical conduct unless we are going to declare mere thoughts and words to be unethical regardless of their intent, reach and result. No one is harmed, nothing is changed, no reasonable cultural norms have been breached. There is no wrongful conduct.

4. Expressing those thoughts in a private forum but where there is no way to ensure that all involved are trustworthy. Here is the problem. A joke that is potentially hurtful but not intended to be hurtful is not harmless when there is a real chance that it will be heard or seen by someone who might reasonably be hurt by it. In today’s YouTube, Facebook, MySpace world, truly private places are becoming increasingly rare. Today, a person who appears at a party in a provocative costume must be on notice that he or she is one surreptitious click of a cell phone away from exposure on the Web. It really doesn’t matter that no one’s photo should be publicized on the Web without consent. It happens so often that we all have to presume that this is a possibility. Thus there may be a kind of ethical strict liability that attaches to comments and conduct in group affairs, public or private. The risk of exposure to unintended audiences is significant, so the person who creates the potentially offensive comment or conduct must take some responsibility for any feelings they injure, as long as the reasoning behind the injury is reasonable.

5. Expressing those thoughts in a public forum designed for a particular audience that is receptive to those thoughts.

This applies to Rush Limbaugh and Air America as well as to the Tonight Show. When Jay Leno makes a crude joke on a sensitive topic (such as when he claimed that before it was re-named, Vatican City was called “Boy’s Town”), the joke’s tastelessness is the key to its humor. Is it predictable that such a joke would upset, for example, a victim of priest molestation, or the family of Cardinal Law? Of course; essentially, Jay Leno doesn’t care. His job is to make as many people laugh as possible, and those offended by his jokes are “collateral damage.” He expects that they will not be part of his audience, but even if they are, he isn’t going to pass up a laugh for their sake. Call it “comic ethics;” a branch of utilitarianism that goes back centuries. There are limits, of course, mostly dictated by what the public will tolerate (See: Imus, Don). But comic ethics dictate that the laughter of the many must not be sacrificed to the few.

6. Expressing those thoughts in a private or public forum designed to create enmity toward a particular group.

This is where ethics and rights diverge. Every American has the right to encourage hate, disrespect, meanness and anger toward a person or group, but it is usually profoundly unethical to do so.

It seems clear that the Penn State costumes fell under category 4. It was indeed a tasteless display, but it took the intervention of a third party to make it a harmful one. Would there have been any harm to anyone if the photos of the event had not been put on line? No. Whoever put the photos on the web did the primary harm.

I remember a time when I was heading a staff at an association, and my ever-loyal assistant would come into my office upset about what other staffers said about me in private conversations. She wanted to tell me what she had heard, and I told her never to tell me such things. “People have a right to blow off steam about their bosses,” I said. “It usually doesn’t mean anything, but if you told me everything they said, it would just hurt my feelings and damage our relationship. They trust you not to tell me, so don’t.” She didn’t, and I am still glad.

The only sure result of communicating the tasteless costumes through the internet was to cause outrage, pain and controversy. No one can blame the parents and friends of Virginia Tech victims for feeling that wearing the costumes was wrong, because it genuinely hurt them. But it is difficult to see how wearing the costumes would have been wrong if nobody connected with Virginia Tech ever learned about it. Nobody at Penn State was trying to do anything more outrageous than to elicit groans and shock from friends. That’s not unethical.

But being irresponsible is. The massacre had only occurred a few months before Halloween. Even the blackest humor is subject to timing: the boldest comedians knew that jokes about 9/11 wouldn’t strike anyone as funny for a long, long time. Colleges are linked by relationships and technology; it wouldn’t take much thought to figure out that the students of another college making light of Virginia Tech’s recent tragedy would somehow, in some manner, become known by those who were still in mourning. And it wouldn’t take excessive sensitivity to figure out that increasing their already abundant pain was not a reasonable price to pay for a party prank.

At least one of the costume-wearers apparently lacks even minimal sensitivity, according to remarks published on-line. “The thing is, everybody’s making a big stink about Virginia Tech. Virginia Tech was 32 deaths out of the 26 thousand that happen in America everyday,” he said. “That’s the problem with college students. They all live in an ivory tower of privilege. They don’t understand, when it all boils down to it, it’s someone wearing a costume.”

Well, “it’s someone wearing a costume” that elicits thoughts of your friend’s bloody murder, which makes it quite a bit more than just wearing a George Bush mask. That is what we call in the law a material distinction. The reasoning that that it is unreasonable to be devastated by 32 murders because there are many more across the country is a particularly odious version of the “It’s not the worst thing” rationalization that the Scoreboard has assigned to the bottom of the rationalization barrel. This argument, which has also been used in a slightly different form by the likes of Michael Moore to minimize terrorist attacks, is equally serviceable—and invalid—as a defense of murderers.

OK. The students who wore the costumes were jerks. But we all knew that, did we not? Wearing the tasteless costumes at Penn State was still not inherently wrong, as it would have been if the costumes were worn at Virginia Tech. The person or persons who behaved most unethically were those who made sure that the people who would be most injured by the prank learned about it. To the extent that the masqueraders were reckless in allowing this to happen, they were irresponsible. But to have a strict liability ethics rule regarding controversial thoughts and humor creates an unreasonable restriction on creativity and freedom. Reluctantly, the Scoreboard rejects this concept.

However, when your tasteless or offensive comment, joke or costume goes to the wrong audience and they are legitimately upset by it, there is only one ethical response for you to make. That is to apologize sincerely, recognizing how you would feel if the positions were reversed.