Cross Burning, Cockfighting, and Symbolic Meaning: Toward a First Amendment Ethnography

Abstract

Current First Amendment doctrine with respect to symbolic gestures - expressive conduct, sacred symbols, and expressive association - is mired in interpretive indifference and interpretive avoidance. Courts are reluctant to rigorously interpret the meaning of symbolic gestures. Sometimes this is due to indifference toward, or even hostility to, the nature of the gesture or the substance of its message. Judicial treatment of nude dancing and expressive protests manifests this sort of normative bias. Sometimes judicial reticence to engage symbolic meaning is due to more legitimate concerns regarding the indeterminacy of meaning and institutional competence. Judicial examination of sacred symbols like creches and menorahs falls into this category.

The doctrines of indifference and avoidance have substantially marginalized symbolic gestures, robbing them of their expressive power and significance. This Article proposes an anthropo-semiotic model for the judicial treatment of symbolic gestures. It posits that judges might begin to escape indifference and avoidance by learning from anthropologists who have both experience with and useful insights with regard to the interpretation of enigmatic social and cultural gestures. With particular attention to the work of the anthropologist Clifford Geertz, the Article develops a four-part model for First Amendment symbolic gestures. In brief, the parts or elements of the model are: rigorous factfinding; thick description; emic perspective; and interpretation.

The idea is not that courts literally do anthropology or become anthropologists, but rather that they develop a systematic method for dealing with the meaning of symbolic gestures in First Amendment cases. After developing the elements of the model, the Article considers how the model or approach might apply to a range of symbolic gestures, including cross burning, nude dancing, religious symbolism, and associational membership. The object is not to discover the one true meaning of any of these gestures, but rather to choose the most plausible meaning of a gesture from among the many competing available circulating meanings. It is hoped that specific and systematic attention to factfinding, description, perspective, and interpretation will elevate symbolic gestures in terms of their First Amendment status and, as importantly, allow courts to more objectively and legitimately confront symbolic meaning in various expressive contexts.

Keywords: Speech, expression, anthropology, Geertz, semiotics, symbolism, sacred, association, first amendment, gesture, symbolic conduct, expressive conduct, meaning

JEL Classification: K00, K10, K19, K30, K39