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"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


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