- Here's an obvious follow-up to yesterday's gripe: The Oscar broadcast is over for another year. Good riddance. If they gave out awards for "worst scriptwriting," "worst fleeting performance by an actor or actress, regardless of the nature of the role," "worst directing," "worst unoriginal score," etc., the Academy Awards broadcast would virtually always have at least two or three nominees in every category... and this was not even a mediocre year for the awards (either in presentation or, for that matter, in the substance of much of what was nominated or honored). This year's award are further proof that nobody who is a voting member of AMPAS is actually watching and then considering the material before voting.
- Grade inflation. Yes, it happens at even notoriously hard-grading institutions. Perhaps what this is really saying is that educators are recognizing that grades certainly at the undergraduate level are imperfect measures of student understanding of the particular material, let alone of integrating that class's material with other material, so we shouldn't penalize students by giving unduly harsh grades if their performance on our exams and papers appears imperfect. Yeah, there's that much humility in academia.
- The Sunday Times gets sucked in again, as "John LeCarré" promises to tell about the real-life inspirations in his "spy" novels and instead suckers the reporter with a story of glimpsed images and chance encounters that turns out to be more revealing in what it doesn't say than in what it does.
- The Supreme Court decided this morning that it wants to hear about Fred Ph3lps and his cult's hateful picketing of soldiers' funerals, in particular whether Ph3lps et al. have a free-speech right to protest that trumps the families' right to privacy during a discrete mourning ceremony. As usual, though, the questions presented aren't questions, and fail to grasp the (in this instance two) nettle:
(1) Whether the prohibition of awarding damages to public figures to compensate for the intentional infliction of emotional distress, under the Supreme Court’s First Amendment precedents, applies to a case involving two private persons regarding a private matter;
(2) Whether the freedom of speech guaranteed by the First Amendment trumps its freedom of religion and peaceful assembly; and
(3) Whether an individual attending a family member’s funeral constitutes a "captive audience" who is entitled to state protection from unwanted communication.
Rewording these so that they're clear and meet the Jeopardy standard (that is, they're in the form of a question), we have:
(1) Is a lawsuit between two private persons regarding a private matter governed by this Court's First Amendment precedents that prohibit awarding damages to public figures as compensation for intentional infliction of emotional distress?
(2) Does the First Amendment's freedom-of-speech clause trump its freedom-of-religion and assembly clauses?
(3) May an individual attending a family member's funeral claim damages under state law restricting unwanted communications?
Actually wording these as questions reveals that the second "question" is a nonstarter, with this Court or with any other, or indeed with a fair reading the the First Amendment itself.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
"Peacable assembly" is for presentation of grievances to the government, so that's out; and there's no trumping possible between two equally weighted clauses. Turning to the first question, though, one begins to see the real problem with the way the petition was presented. The question is not narrow; it is not fact-specific; and, most importantly, it misses the real point of controversy that begs for clarification by the Court as a doctrinal matter. Instead, I propose:
(1) Does the death of a soldier in a combat zone transform him and his survivors into "public figures" who may not claim damages for intentional infliction of emotional distress?
(2) May a speaker professing views on a subject concerning membership in a group claim any shield against damages imposed for conduct relating to a particular individual who is facially a member of the target group, but who does not share the characteristic complained of by the speaker?
And the third question is essentially nonsense, however one characterizes it... because by putting it in the context of a "funeral" it is no longer a true issue of unwanted communications, because a graveyard is a public accommodation (even a private graveyard), and the unwanted-communications doctrine has no place in public accommodations.
So, who should win? Nobody. That's the wrong question; there are no winners here. And as a veteran myself, I'm in a better position to say that veterans were fighting for the very rights that despicable, hateful sleazebags like Ph3lps and his ilk so grievously misused; misuse of free speech rights cannot be allowed to lead to their forfeiture, else "misuse" enlarges to swallow the rights themselves. On the other hand, there's a much deeper question here of whether anything that Ph3lps et al. did, or do, actually constitutes the "free exercise" of "religion"; merely cloaking an irrational belief and hateful actions in the threadbare claim of "but it's religious doctrine!" doesn't make it so. The Klan found that out the hard way. One of the prices you pay for being dead is the inability to protect yourself against people holding you up as a symbol for that which you do not believe you were... and it's a price for which there is not, and cannot, be a legal remedy. Thus, I'd drag this whole undead dispute out of the graveyard and treat it as a pure matter of secular law... which seems rather ironic, given that the Western construct of a "graveyard" is itself a religious one, but that is just too much reflexive irony for a Monday anyway.
- As a shadow of potential changes to come in copyright, the Senate is now taking up the Patent Reform Act of 2010. Professor Crouch ably summarizes the bill as it compares to the present law. It's the procedural niceties that have parallels in the Copyright Act that interest me; in particular, damages, venue, and the partial denigration of later-interposed defenses (in the patent context, failure to dislose best mode; in the copyright context, the scope and form of derivative works, especially when parody and transformativeness are at issue) that interest me the most.
- Meanwhile, the clock is still ticking on several filings that are required of the settling parties in the GBS settlement, with no external sign of cognizance. Then I run into my own standing problems: The works I've done that have appeared in book form with my authority are WFH, so I have no standing in the GBS litigation (and, if the WFH doctrine is constitutional, under the Copyright Act itself) to complain directly.
08 March 2010
I Don't Like Mondays
at 10:58 [UTC8]
...but I won't shoot the whole day down. I don't own any firearms.