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

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

Dan M. Kahan

Yale University - Law School

David A. Hoffman

University of Pennsylvania Law School; Cultural Cognition Project at Yale Law School

Donald Braman

George Washington University - Law School; Cultural Cognition Project

Danieli Evans

Yale Law School; Cultural Cognition Project at Yale Law School

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 J., ‘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 University - 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 Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Cultural Cognition Project at Yale Law School

127 Wall St
New Haven, CT 06520
United States

Donald Braman

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Cultural Cognition Project ( email )

2000 H St NW
2000 H Street
Washington, DC 20052 20052
United States
202-491-8843 (Phone)
202 491-8843 (Fax)

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

Danieli Evans

Yale Law School ( email )

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

Cultural Cognition Project at Yale Law School ( email )

127 Wall St
New Haven, CT 06520
United States

HOME PAGE: http://www.culturalcognition.net/danieli-evans-homepage/

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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