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

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Cross Burning, Cockfighting, and Symbolic Meaning: Toward a First Amendment Ethnography William & Mary Law Review Volume 45 (2003-2004) Issue 5 Article 7 April 2004 Cross Burning, Cockfighting, and Symbolic Meaning: owarT d a First Amendment Ethnography Timothy Zick William & Mary Law School, [email protected] Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons, First Amendment Commons, and the Social and Cultural Anthropology Commons Repository Citation Timothy Zick, Cross Burning, Cockfighting, and Symbolic Meaning: owarT d a First Amendment Ethnography, 45 Wm. & Mary L. Rev. 2261 (2004), https://scholarship.law.wm.edu/wmlr/vol45/ iss5/7 Copyright c 2004 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr CROSS BURNING, COCKFIGHTING, AND SYMBOLIC MEANING: TOWARD A FIRST AMENDMENT ETHNOGRAPHY TIMOTHY ZICK* TABLE OF CONTENTS INTRODUCTION .................................... 2263 I. THE FIRST AMENDMENT AND THE CULTURE OF SYMBOLIC GESTURES ............................. 2272 A. Early Statements on FirstAmendment Symbolism ... 2272 B. Symbols of Protest ............................ 2274 1. Peaceful Sit-Ins ............................. 2274 2. Symbolic Protests of Hostilities ................. 2276 3. Symbolic Protests of Government Policies ......... 2278 4. The Symbolism of the U.S. Flag ................ 2280 C. Symbolic Eroticism: The Act of DancingNude ...... 2284 D. Paradesand Other Symbolic Gatherings ........... 2287 E. Symbols of Fear,Hate, and Violence .............. 2289 F. Sacred Symbols ............................... 2292 G. Symbolic Membership .......................... 2297 H. Summary: CurrentDoctrine and the Way Forward .. 2299 II. AN ETHNOGRAPHIC MODEL FOR SYMBOLIC GESTURES ... 2301 A. A Semiotic Conception of "Culture". ............... 2303 1. The Cultural and Constitutional Significance of Symbols ....................... 2303 2. "SacredSymbols" ........................... 2308 * Assistant Professor of Law, St. John's University School of Law. B.A., 1989, Indiana University; J.D., 1992, Georgetown University Law Center. I wish to thank Erin Albritton, Paul Kirgis, Rosemary Salamone, Susan Stabile, Brian Tamanaha, Robert Vischer, and Philip Weinberg for their support, and for their helpful comments and suggestions on earlier drafts of this Article. I would also like to thank Meghan Silhan for her diligent research assistance. 2261 2262 WILLIAM AND MARY LAW REVIEW [Vol. 45:2261 B. The Mechanics of the Interpretive Perspective ....... 2311 1. Data Gathering-BuildingCultural Context ...... 2312 2. "Thick Description" .......................... 2316 3. On "GoingNative": Emic and Etic Perspectives .... 2321 4. Symbolic Meaning and Interpretation ........... 2324 III. SYMBOLIC GESTURES REVISITED: TOWARD A FIRST AMENDMENT ETHNOGRAPHY ................... 2335 A. Legally Uncontested and Contested Meanings ....... 2336 1. Legally Uncontested Symbolic Meaning .......... 2336 2. Legally Contested Symbolic Meaning ............ 2338 B. Symbols of Violence and Hatred .................. 2340 1. Ritual Cross Burning ......................... 2340 2. The Confederate Flag ......................... 2350 3. Symbols of Nazism ........................... 2354 C. The "Said"of the Striptease ..................... 2355 D. Other Symbolic Expressive Activity ............... 2362 E. The Semiotics of Sacred Symbols ................. 2365 F. The Meaning of Membership ..................... 2375 G. Some Final Thoughts on Interpretationand "Meaning" 2380 1. Semiotic Competence and InterpretiveAuthority ... 2380 2. JudgingMeanings ........................... 2384 IV. CONCLUSION: THE BENEFITS OF AN ETHNOGRAPHY OF GESTURES ........................ 2389 A. Rejecting Indifference-Recalibrating the FirstAmendment Hierarchy .................. 2389 B. ConstitutionalBalancing and Semiotic Precision .... 2394 20041 TOWARD A FIRST AMENDMENT ETHNOGRAPHY 2263 INTRODUCTION We live in a culture of symbols.' 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,' 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 1. See, e.g., Sanford Levinson, They Whisper: Reflections on Flags, Monuments, and State Holidays, and the Construction of Social Meaning in a Multicultural Society, 70 CI.- KENT L. REV. 1079, 1107 (1995) ("Symbols are an important part of the cultural exchange system that, among other things, establishes relationships of hierarchy and domination."). 2. The usual labels-%ymbolic conduct" or "symbolic expression"-are too limited for my project, which includes, in addition to an analysis of symbolic conduct, the symbolism of religion (sacred symbols) and symbolic membership. I use "symbolic gestures" to indicate this more expansive coverage. 3. 123 S. Ct. 1536 (2003). 4. Id. at 1547-49. 2264 WILLIAM AND MARY LAW REVIEW [Vol. 45:2261 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 unpro- tected 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."' 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 5. Id. at 1542-43. 6. Id. at 1541. 7. Id. at 1541, 1551-52. 8. See id. at 1544-47. 9. See id. 2004] TOWARD A FIRST AMENDMENT ETHNOGRAPHY 2265 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
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