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Weekend update: cognitive illiberalism--what is it? & what does it have to do with the Constitution?

Now & again people ask me what I mean by the term "cognitive illiberalism." That's reasonable; I often use that term w/o stopping to spell it out. That's because I & my collaborators have already done so in various places. But of course people join conversations in progress all the time, & their participation is impeded by unfamiliar, specialized terms that those who've been participating for a longer period have constructed to condense information of recurring significance.  It wouldn't make much sense for those who are parties to an ongoing conversation to deny themselves the efficiency of this device just so new entrants could follow along without confusion; indeed, the conversations that would result would be so burdened by throat-clearing re-elaboration of all that has come before that no one would have the time or patience to take part in them. But what does make sense is for the parties to such conservations to help reduce the cost of joining by contributing to the stock of reasonably accessible materials that a curious person can consult to recover the content that is being compacted into these terms of art. So here is an excerpt from Kahan, D. M., Hoffman, D. A., Braman, D., Evans, D., & Rachlinski, J. J. (2012). They Saw a Protest : Cognitive Illiberalism and the Speech-Conduct Distinction. Stan. L. Rev., 64, 851-906, that helps explicate the concept of "cognitive illiberalism" and its significance to enforcement of the individual liberty provisions of the Constitution. In the future, I'll hyperlink to it, refer to it, etc., when I think will help out someone who might be interested in what I'm saying but who (reasonably enough!) has never heard of "cognitive illiberalism."


 In a 1950s social psychology experiment, students from two Ivy League colleges were instructed to evaluate a series of controversial officiating calls made during a football game between their respective schools. Researchers found that the students, from both institutions, were much more likely to perceive error in the penalty assessments imposed on their school’s team than in those imposed on their rival’s. The students’ emotional stake in affirming their loyalty to their institutions, researchers concluded, had unconsciously shaped what they had seen when viewing events captured on film. This study is now recognized as a classic demonstration of “motivated cognition,” the ubiquitous tendency of people to form perceptions, and to process factual information generally, in a manner congenial to their values and desires.

Motivated cognition poses an obvious hazard for law. Sports fans are permitted—even expected—to be partisan. But legal decisionmakers must be neutral. Just as the integrity of a sporting contest would be undermined by unconscious favoritism on the part of the referee, so the legitimacy of the law would likewise be compromised if legal decisionmakers, as a result of motivated cognition, unwittingly formed perceptions of facts that promoted the interests and values of groups with whom they had an affinity.

This effect could be particularly subversive of constitutional law. The Free Speech, Equal Protection, and Due Process Clauses all mandate governmental evenhandedness.  Within  their  respective domains,  each  forecloses the  state from privileging particular affiliations, ways of life, or points of view and mandates that law be justified by its contribution to secular interests—physical security,  public  health,  economic  prosperity—valued by  all  citizens.  But  if decisionmakers (particularly adjudicators) unconsciously apply these provisions to favor outcomes congenial to favored ways of life, citizens who adhere to disfavored ones will suffer the same array of disadvantages for failing to conform that they would in a regime expressly dedicated to propagation of a sectarian orthodoxy. This distinctively psychological threat to constitutional ideals, which we will refer to as “cognitive illiberalism,” has received relatively little attention from commentators or jurists.

We performed an experimental study designed to help assess just how much of a threat cognitive illiberalism poses to constitutional ideals. The study focused on a discrete and recurring task in constitutional law: discernment of the line between “speech” and “conduct” for purposes of the First Amendment. Embodied in a variety of doctrines, the speech-conduct distinction aims to assure that coercive regulation is justified on grounds unrelated to governmental or public hostility to disfavored ideas. Most importantly, the speech-conduct distinction has historically played, and continues to play, a vital function in preventing the government from invoking its responsibility for maintaining “public order” to disguise suppression of impassioned political dissent. Our study furnishes strong evidence that this function is indeed highly vulnerable to the power of motivated cognition to shape decisionmakers’ perceptions of the facts that mark the speech-conduct boundary.

The features of the speech-conduct distinction that make it susceptible to this influence, moreover, are shared by a host of other constitutional doctrines. The study results thus highlight the need to fortify constitutional theorizing with psychological realism. Normatively ideal standards for enforcing the Constitution are of little value if applying them defies the capacities of constitutional decisionmakers. * * *

 [III.]B.  Cognitive Illiberalism and the Constitution

The practical motivation for this study was to focus attention on the danger that cognitive illiberalism can pose to constitutional law. We use this term to refer to the vulnerability of political and legal decisionmakers to betray their commitment to liberal neutrality by unconsciously fitting their perceptions of risk and related facts to their sectarian understandings of the good life. This is the dynamic, we believe, that transforms seemingly empirical debates over how to protect the environment, promote public health, and secure the nation from external threats into occasions for divisive group-based status competition. Our study results show how readily constitutional decisionmaking can become infected by this pathology.

In our subjects, cognitive illiberalism eviscerated the line between “speech” and “conduct.” The speech-conduct distinction can be seen as one doctrinal device courts employ to test whether a regulation conforms to liberal prohibitions on governmental promotion of a moral or political orthodoxy: by requiring that a regulation be shown to promote a governmental interest independent of hostility to any particular idea, the teleological conception of the speech-conduct divide assures that law is used to pursue secular goods of value to all citizens regardless of their cultural outlooks.

Enforcing this test, however, necessarily requires decisionmakers to make critical determinations of fact: in the case of a mass demonstration, for example, did the protestors intend to intimidate or only persuade? Were the protestors simply expressing impassioned dissent, or did they impose themselves on members of the public in anassaultive or invasive manner (e.g., “screaming in their faces”)? Were onlookers genuinely frightened of physical assault, or merely angry, offended, or possibly even ashamed by exposure to the protestors’ message? Did law enforcement actors intervene to preempt incitement to violence or only to quell a public backlash propelled by animosity toward the demonstrators’ point of view?

For our subjects, the answers were decisively shaped by the congruence between the protestors’ message and the subjects’ own cultural worldviews. As a result, in the course of certifying that the law was free of culturally partisan influence, they ended up infusing it with exactly that.

Other First Amendment doctrines also seem vulnerable to this type of subversion. * * *

click me! Please!Indeed, we suspect this point can be generalized to constitutional theory as a whole. As discussed, the First Amendment can be integrated into a general theory that reads the Constitution as implementing the liberal prohibition on state endorsement of partisan conceptions of the good life. Like the First Amendment, the Equal Protection and Due Process Clauses require courts to “strictly scrutinize” proffered secular rationales—public health, deterrence of criminal violence, national security, and the like—to “flush out” the impact, conscious or unconscious, of regulators’ animosity toward those whose identity or values defy dominant norrms. But if legal decisionmakers, like everyone for else, are unconsciously motivated by their cultural affiliations, then they—like everyone else—are more or less likely to see challenged laws as contributing to the attainment of secular ends depending on whether those laws affirm or denigrate their own cultural commitments. Angry denunciations of judges who have thrown their lot in with one or the another of the belligerents in the American “culture wars” is itself a form of status conflict characteristic of cognitive illiberalism.

Some legal commentators (and historically certain jurists) have criticized constitutional standards that “balance” constitutional liberties against “compelling interests,” such as national security, public order, and diversity. The phenomenon of culturally motivated cognition vindicates their anxiety that such “tests inevitably become intertwined with the ideological predispositions of those doing the balancing.” But our study results suggest that these commentators are too quick to assume that their preferred alternative to balancing—such as the “teleological conception” of the speech-conduct distinction, the “anticaste” principle, the liberal “harm” criterion, and the like—will necessarily avoid such entanglement. The primary implication of our study— the main message we are trying to get across—is that constitutional theorists have paid too much attention to explicating the normative content of various free speech standards and too little to the psychology of enforcing them.

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