"They Saw a Protest": Cognitive Illiberalism and the Speech-Conduct Distinction (with Donald Braman et al.), 64 Stanford Law Review 851 (2012)
“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 military recruitment
center. Subjects of opposing cultural outlooks who were assigned to the same experimental
condition (and thus had the same belief about the nature of the protest)
disagreed sharply on key “facts”—including whether the protestors 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 selfgovernance
Date of Authorship for this Version
Kahan, Dan M.; Hoffman, David A.; Evans, Danieli; Braman, Donald; and Rachlinski, Jeffrey J., ""They Saw a Protest": Cognitive Illiberalism and the Speech-Conduct Distinction" (2012). Faculty Scholarship Series. Paper 4692.