TABLE OF CONTENTS INTRODUCTION I. THE FIRST AMENDMENT AND THE CULTURE OF SYMBOLIC GESTURES A. Early Statements on First Amendment Symbolism B. Symbols of Protest 1. Peaceful Sit-Ins 2. Symbolic Protests of Hostilities 3. Symbolic Protests of Government Policies 4. The Symbolism of the U.S. Flag C. Symbolic Eroticism: The Act of Dancing Nude D. Parades and Other Symbolic Gatherings E. Symbols of Fear, Hate, and Violence F. Sacred Symbols G. Symbolic Membership H. Summary: Current Doctrine and the Way Forward II. AN ETHNOGRAPHIC MODEL FOR SYMBOLIC GESTURES A. A Semiotic Conception of "Culture" 1. The Cultural and Constitutional Significance of Symbols 2. "Sacred Symbols" B. The Mechanics of the Interpretive Perspective 1. Data Gathering--Building Cultural Context 2. "Thick Description" 3. On "Going Native": Emic and Etic Perspectives 4. Symbolic Meaning and Interpretation III. SYMBOLIC GESTURES REVISITED: TOWARD A FIRST AMENDMENT ETHNOGRAPHY A. Legally Uncontested and Contested Meanings 1. Legally Uncontested Symbolic Meaning 2. Legally Contested Symbolic Meaning B. Symbols of Violence and Hatred 1. Ritual Cross Burning 2. The Confederate Flag 3. Symbols of Nazism C. The "Said" of the Striptease D. Other Symbolic Expressive Activity E. The Semiotics of Sacred Symbols F. The Meaning of Membership G. Some Final Thoughts on Interpretation and "Meaning" 1. Semiotic Competence and Interpretive Authority 2. Judging Meanings IV. CONCLUSION: THE BENEFITS OF AN ETHNOGRAPHY OF GESTURES A. Rejecting Indifference--Recalibrating the First Amendment Hierarchy B. Constitutional Balancing and Semiotic Precision INTRODUCTION
We live in a culture of symbols. (1) We speak not only through our words but through symbolic gestures--our acts, our religious symbols, and our associations. What we do, what we wear, how we worship, and with whom we associate are all deeply symbolic aspects of our cultural life. Despite this rich symbolism, what it is that we say when we act, worship, and join has been a topic treated substantially with indifference by courts and scholars. What does it mean to burn a draft card or a cross, to sleep in the park, or to dance in the nude? What does the display of a menorah, or creche, or the Ten Commandments at the county courthouse signify? What does it mean to join the Jaycees, the Rotary Club, or the Boy Scouts? Although a diverse and complex symbolism inheres in the First Amendment, courts have made little effort to translate or interpret these and other symbolic gestures. Outside the realm of "pure" expression, whose meaning is often self-evident, it seems that judges are loathe to delve too deeply into symbolic meaning. As a result, what we have now is a very thin doctrine of symbolic gestures. (2)
This does not have to be so. Indeed, one recent exception to the general disengagement from symbolic meaning stands out and deserves particular attention. In Virginia v. Black, (3) the Supreme Court held that cross burning could be prohibited, categorically, as a "threat" outside the protection of the First Amendment. (4) The record facts in Black can be stated briefly. One man, leading a Ku Klux Klan rally, burned a cross on private property some 300 feet from the nearest public road and in view of his neighbors, while two other men, on a separate occasion, attempted to burn a cross in an African American neighbor's yard. (5) This conduct was said to violate a Virginia criminal statute regulating cross burning undertaken with the "intent of intimidating any person or group of persons." (6) Although the Court concluded that the government could prohibit cross burning as a form of threatening symbolism, it held that the Virginia statute was procedurally flawed. (7)
The narrow holding is not significant. What is significant, or at least potentially so, is how the Court was able to determine that burning a cross could be interpreted as a constitutionally unprotected symbolic threat. In order to educate itself, and the rest of us, with regard to the symbolic meaning of burning a cross, the Court had to go beyond the narrow conception of "the record." (8) In order to recover the most plausible meaning of cross burning, the Court had to ascertain what potential meanings such an act might have, and then choose the meaning most consistent with, among other things, participant behavior. The conclusion surely seems self-evident, at least for those with even a rudimentary awareness of the historic struggle for civil rights, and of the ideology and operations of the Ku Klux Klan. But where meaning and interpretation are concerned, courts ought not simply pronounce their own sense of the matter. This is as true of interpretation of symbolic gestures as it is of interpretation of constitutional text. Courts must state reasons for their interpretations.
Drawing on a wealth of sociological, historical, and anecdotal data, therefore, the Black Court produced a detailed account, a monograph of sorts, of the practice of cross burning, from the origins of the ritual in fourteenth-century Scotland, through the violence and racism of the civil rights struggle, up to the present. (9) The Black Court sought to recover the most plausible meaning of cross burning by placing it in cultural context, consulting public sources of meaning, and providing a detailed description of the practice. What resulted was a translation of the gesture of cross burning into recognizable, if not ultimately incontestable, cultural terms.
Black demonstrates that interpretation of symbolic gestures can be demanding, and risky, work for judges. Courts have generally avoided interpreting the meaning of symbolic gestures for two reasons. First, they have failed to appreciate the importance of symbolism to cultural expression. Indeed, normative bias against unusual or unconventional forms of speech--symbolic protests and nude dancing, for example--has led over time to a doctrine of interpretive indifference. Second, courts tend to view symbolic meaning as hopelessly indeterminate. They do not believe that, as judges, they are capable of choosing from among the various available meanings for polysemous symbols. Thus, concerns regarding institutional competency have led, with respect to some symbolic gestures, to a doctrine of interpretive avoidance.
It is precisely because of the indeterminacy of meaning that Black will have detractors. For if the Court can denounce the burning cross as symbolically threatening, what then of the Nazi swastika and the Confederate flag? What Black portends need not be viewed with trepidation or dread of slippery slopes. The approach taken can lead to a better understanding of symbolic gestures across the range of First Amendment concerns--not only symbolic action, but also sacred symbols and the meaning of membership in associations. If properly pursued, an interpretive turn for symbolic gestures will enable a discourse of symbols to take place which has been silenced for too long. It will permit courts to untangle and decipher the often ambiguous symbolic communications of cultures they do not inhabit.
This assumes much. It assumes, for one thing, that courts can avoid acting as undisciplined, unprincipled arbiters of symbolic meaning. Judicial interpreters simply cannot be permitted to rely upon their own normative biases, for that is one of the troubles with the current doctrine of symbolic gestures. There must be discipline and principled interpretation; at the least, there must be a systematic method for recovering symbolic meaning.
This Article proposes that interpretive ethnography provides an appropriate model for the interpretation of symbolic gestures in First Amendment cases. Ethnographers are anthropologists who systematically record the particulars of human cultures, usually by conducting lengthy field observations. (10) Interpretive or hermeneutic ethnography is a branch, or school, of anthropological thought which emphasizes the cultural significance of signs and symbols. The approach, popularized by its leading proponent, Clifford Geertz, is semiotic in orientation; (11) it focuses on the interpretation of symbols and symbol systems within a culture. (12) As Geertz himself summarizes the agenda, interpretive ethnographers are "mostly engaged in trying to determine what this people or that take to be the point of what they are doing." (13)
This Article suggests that courts adopt a systematic, interpretive orientation with respect to symbolic gestures. To be clear from the outset, the Article does not suggest that courts actually "do" ethnography in the sense of physically entering the field and studying a culture over time. Institutional and other limitations obviously preclude judges from becoming field scientists. As a perspective, a process, and a method, however, interpretive ethnography has much to offer a judicial approach to symbolic gestures. Given its solicitude for symbols and symbolic meaning, the interpretive model offers a lens, a perspective, through which to view symbolic gestures anew. This perspective can be readily adapted to combat the First Amendment doctrines of interpretive indifference and avoidance. This Article, thus, utilizes the Geertzian anthropo-semiotic approach as a foundation for reconsidering symbolic gestures.
In pursuing the interpretive model or perspective, the first step is to recognize that when courts encounter First Amendment symbolism, they are, like ethnographers, called upon to consider the cultural meaning of social action. The culture may be large, such as a peace movement or a general public protest against government policies; or it may be small, as where specific clubs, sects, or other associations are concerned. Judges reside in the broad American culture. They need not, therefore, as ethnographers often must, learn a culture from the ground up. Judges are, however, often "outsiders" to the subcultures in which symbolic gesturing takes place. They do...