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

Cultural cognition refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. This paper (published in the Stanford Law Review) reports the results of an experiment to assess the impact of cultural cognition on facts that mark the line between constitutionally protected “speech” and 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 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 self-governance generally.

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