I must be a nerd

I have come to the conclusion that I am officially a self-proclaimed nerd. Up to this point in life, I think that I have only heard others apply that label to me and I have chosen to use descriptive labels such as nerdy instead of the noun version. However, I am willing to embrace the nerdiness and state that I am a nerd.

I came to this conclusion when I read the transcript of the Supreme Court oral arguments from last week's Snyder v. Phelps case. I read the transcript because I wanted to know how the oral arguments went, I decided not to wait for the audio of the oral arguments to be posted, and I wanted to know what Scalia said. Now I am anxiously awaiting the opinion/concurrence/dissent of Scalia. Notice I said the decision of Scalia instead of the decision of the Court. I think that out of all of the justices on the US Supreme Court, Justice Scalia is the one that I agree with most. Part of the reason for this is that Justice Scalia is rarely, if ever, guilty of making a decision based on emotion instead of the Constitution.

For example, Justice Scalia wrote an opinion that I thought that I did not agree with at the time it was issued. He wrote that a rape victim has to testify in front of the accuser. Although I do not remember the facts of the case now, I am sure it was probably a child victim making the victim someone that society naturally wants to protect. However, there is a Constitutional right of an accuser to confront a victim. Justice Scalia and the Supreme Court upheld the constitutional right of the accused to confront the victim. At the time, I thought it was a horrible decision. The more I thought about it, the more I admired Justice Scalia for taking the facts away and looking only at the text of the Constitution.

I think that the Snyder v. Phelps case is similar. We have a constitutional right to free speech. The government can place reasonable restrictions on where the speech can occur. Those restrictions were in place at the soldier's funeral. The Phelps group was out of the eyesight and hearing of the family. The family member is the one who decided to turn on the TV to see the media coverage (which is a problem with the media, but I will not go there on this one). It was also the family member who decided to go to the website and see what was said about the son and family. Does that mean that the Phelps group should have said the things that they are saying? No. However, that does not mean that they should not have the right to say those things.

I am interested to see if the Supreme Court is going to uphold the group's right to speak in this situation. If there is ever a set of facts that the majority of Americans can get behind and say that it was not right for this to occur, protesting at a funeral qualifies. However, there is a right to protest (I should add peacefully because protesting can get out of hand and protesters can lose the right). I am interested to see what Scalia writes. I hope that he continues to uphold the Constitution. I hope that he resists the temptation to carve an exception to free speech. I think that restricting the group to a particular time and place is sufficient, but I do not think that they should have their speech stifled. I think that the world would be better off if the group would quit saying what it is saying. However, this can be said by someone about almost any group.

Interestingly, the Court will be deciding if the speech was an intentional infliction of emotional distress which is a civil cause of action. There are times when our words, although we have a right to say them, have consequences. I find it hard to pin an intentional infliction of emotional distress on someone who put a thought out there in the public discourse, but did not force the intended or unintended victim to watch. If the media had not jumped on the protesting like they did, the intended/unintended victim may have never seen the speech that harmed the victim. I guess the argument can be made that the speaker knew that the media would cover the event and the speech would be likely to reach the victim. I guess that the ultimate question becomes what speech can have financial consequences outside of threats which already have criminal/civil consequences and slander/libel which has civil consequences.

On a completely different note, I am surprised by the argument presented by Phelps' daughter at the oral arguments. She came off much more articulate and much less crazy than her father. She was surprisingly well prepared and carried herself better in the oral argument than she has in interviews since the arguments (and probably before too). Sure she had some crazy moments (repeated use of "in your grille"), but overall she presented the argument better than I expected (my expectations were pretty low so maybe it was easy to exceed the expectations).