Crushing Animals and Crashing Funerals: The Semiotics of Statutory Construction and Free Expression

Abstract

This article addresses judicial choices and semantic errors involved in United States v. Stevens, 130 S.Ct. 1577 (2010) (refusing to read “killing” and “wounding” to include cruelty and thus striking down a federal statute outlawing videos of animal cruelty), and Snyder v. Phelps, 131 S.Ct. 1207 (2011) (finding a First Amendment right to picket military funerals and verbally attack parents of dead soldiers as part of purportedly-public expression). This article maintains that a better understanding of semiotics (the theory of signs) exposes the flaws in both decisions and bolsters the arguments of the lone dissenter in both cases, Justice Alito. Such a better understanding of semiotics involves grasping (a) how expression involves signs, (b) how signs work in general, and (c) the differences between three basic kinds of signs (indexes, icons and symbols). This article maintains that the expression involved in Stevens and in Phelps was a type of indexical or quasi-indexical expression that, for reasons similar to those involved in child pornography cases, should have no First Amendment protection. This article also notes shifting interpretive positions in the Court that cry out for reform. Although Chief Justice Roberts uses a textualist approach in his majority opinion striking down the animal cruelty statute in Stevens, his majority opinion in National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), has no trouble finding a “penalty” a “tax,” upholding the Affordable Care Act, and chastising the dissent for voting to strike down a statute simply because “. . . Congress used the wrong labels.” Id. at 2597. This article attempts to expose such gamesmanship in “textualism” and attempts to lay out a better semiotic path for the Court. It calls for more forthright judicial decision-making in constitutional and statutory interpretation; calls for rejecting mechanical notions of law that conceal judicial choice involved in constitutional and statutory interpretation; and calls for rejecting claims that dictionaries can settle constitutional or statutory interpretation issues without reference to constitutional and statutory goals.