‘They Saw a Protest’: Cognitive Illiberalism and the Speech-Conduct Distinction

52 Pages Posted: 9 Feb 2011 Last revised: 16 Apr 2013

See all articles by Dan M. Kahan

Dan M. Kahan

Yale Law School

David A. Hoffman

University of Pennsylvania Carey Law School

Donald Braman

George Washington University - Law School; Justice Innovation Lab; DC Justice Lab

Danieli Evans

Seattle University School of Law

Jeffrey J. Rachlinski

Cornell Law School

Date Written: February 5, 2011

Abstract

“Cultural cognition” refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a campus recruitment facility. Subjects of opposing cultural outlooks who were assigned to the same experimental condition (and who thus had the same belief about the nature of the protest) disagreed sharply on key “facts” – including whether the protesters obstructed and threatened pedestrians. Subjects also disagreed sharply with those who shared their cultural outlooks but who were assigned to the opposing experimental condition (and hence had a different belief about the nature of the protest). These results supported the study hypotheses about how cultural cognition would affect perceptions pertinent to the “speech”-“conduct” distinction. We discuss the significance of the results for constitutional law and liberal principles of self-governance generally.

Suggested Citation

Kahan, Dan M. and Hoffman, David A. and Braman, Donald and Evans, Danieli and Rachlinski, Jeffrey John, ‘They Saw a Protest’: Cognitive Illiberalism and the Speech-Conduct Distinction (February 5, 2011). Cultural Cognition Project Working Paper No. 63, Stanford Law Review, Vol. 64, 2012, Temple University Legal Studies Research Paper No. 2011-17, Available at SSRN: https://ssrn.com/abstract=1755706

Dan M. Kahan (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

HOME PAGE: http://www.culturalcognition.net/kahan

David A. Hoffman

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Donald Braman

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
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Justice Innovation Lab ( email )

DC Justice Lab ( email )

1200 U St NW
Washington, DC 20009
20009 (Fax)

HOME PAGE: http://dcjusticelab.org

Danieli Evans

Seattle University School of Law ( email )

901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA n/a 98122-1090
United States
98144 (Fax)

Jeffrey John Rachlinski

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-5878 (Phone)
607-255-7193 (Fax)

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