If one were to judge from the media coverage—the dueling depictions of the characters of the shooter and his victim; the minute dissections of fragmentary witness statements; the “expert” voice-identification of screams picked up in the background of a 911 call; the high-resolution scrutiny of low-resolution of video footage of the shooter in police custody that reveal the existence/absence of telltale wounds—one would think that the significance of the Trayvon Martin case turns (or ultimately will turn) decisively on the facts.
In actuality, the opposite is true: the significance we attach to the case will determine our perception of the facts; and because what it signifies turns on cultural meanings that divide our society, the members of different groups will form highly opposed understandings of what happened that terrible night.
Does that mean it’s pointless to be discussing the case?
On the contrary. In my view, the public agitation the case has provoked is evidence of how important it is for us to have a public conversation about the diversity of our cultural outlooks and their relation to law, and that this case is an ideal occasion for addressing that issue.
But if we insist that the discussion take the form of competing, culturally partial (and even culturally partisan) renditions of the facts, we are highly unlikely to engage the real issues in a universally meaningful way. And in that circumstance, we can be sure that the sources of agitation will persist.
I have more to say than it makes sense to put in one post. So regard this as installment 1 of 3.
1. Meanings are cognitively prior to fact
The Trayvon Martin case, polls unsurprisingly reveal, divides people along cultural lines.
In this sense, it is very much like a host of other high-profile types of cases: public altercations leading to a mixed-race killing (think Bernard Goetz and Howard Beach); the slaying (or mutilation; think Lorena Bobbitt) of sleeping men by female partners who allege chronic abuse; the prosecutions (William Kennedy Smith)—or not (Duke lacrosse)—of men alleged to have disregarded women's verbal resistance to sexual intercourse; forceful arrests of political protestors (Occupy Wall Street; Operation Rescue) pepper sprayed by police—or of fleeing drivers whose bodies are broken by the impact of their crashing cars (Scott v. Harris) or the fusillade of baton blows of their pursuers (Rodney King).
CCP has conducted experimental studies of cases like these. What we have found, in all of these contexts, is that people unconsciously form perceptions of fact that reflect their stance on the cultural meanings the cases convey.
Those committed to norms of honor and self-reliance, on the one hand, and those who value equality and collective concern, on the other; those who believe women warrant esteem for mastery of traditionally female domestic roles and those who believe women as well as men should be conferred status for success in civil society; those who place a premium on respect for authority and those who apprehend the abuse of it as a paramount evil—all see different things in these types of cases, even when they are forming their perceptions on the basis of the same evidence.
Moreover, members of all these groups know that what one sees (or claims to see; each group always suspects the other of disingenuousness) depends on who one is culturally speaking.
As a result, in controversies over these sorts of cases, those on both sides come to view competing factual claims as markers of opposing allegiances. The ultimate resolution of these facts in courts of law, in turn, becomes evidence of who counts and who doesn’t in an our society.
These are identity-threatening conditions. It is the extreme anxiety that they provoke that explains how despite knowing next to nothing about what actually happened—because we have nothing more to go on than factual snippets embroidered with righteous denunciation in the media, or antiseptic renditions of the “facts of the case” in appellate reporters—we nevertheless become filled with passionate certitude about the events. The discovery that others disagree with us fills us with incredulity and rage.
And most extraordinary of all, this same environment of symbolic status competition explains why such disagreement persists in the face of the most compelling forms of evidence of all. Even when we literally see the events with our own eyes—as we do when they are recorded on video, e.g.—cultural cognition assures that we will disagree about we are seeing.
We will disagree, in such instances, with those who hold values different from ours when we watch what we understand to be the same event.
Moreover, we will disagree with those who share our values if, as a result of a hidden experimental manipulation, we start with different impressions of the sort of event (abortion-clinic protest, or anti-war protest) we are watching.
Barely detectable above the cacophony in the Trayvon Martin case are a few lonely voices cautioning us not to jump to conclusions. We don’t really know enough about what happened, they rightly point out, to form such strong opinions.
But the truth is, we’ll never know what happened, because we—the members of our culturally pluralistic society—have radically different understandings of what a case like this means.
The questions are whether it makes sense to talk about that, and if so, what should we be saying?
Dan M. Kahan & Donald Braman, The Self-defensive Cognition of Self-defense, 45 Am Crim Law Rev 1 (2008).
Dan M. Kahan, The Supreme Court 2010 Term—Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law 126 Harv. L. Rev. 1 (2011).
Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans & Jeffrey J. Rachlinski, They Saw a Protest: Cognitive Illiberalism and the Speech-Conduct Distinction, 64 Stan. L. Rev. (forthcoming 2012).