"They saw a protest": cognitive illiberalism and the speech-conduct distinction.

Author:Kahan, Dan M.

INTRODUCTION I. THEORETICAL BACKGROUND A. "Speech" Versus "Conduct" B. Culturally Motivated Reasoning C. Cognitive Illiberalism and the Speech-Conduct Distinction II. STUDY A. Overview and Hypotheses 1. EI inversion 2. HC inversion 3. HI bias 4. EC bias 5. EI/HC polarization 6. EC/HI semipolarization B. Design and Methods 1. Sample 2. Cultural worldviews 3. Stimulus a. Vignette b. Video 4. Response measures 5. Analytic strategy C. Results III. ANALYZING, APPRAISING, AND ADVOCATING A. Summary of Results B. Cognitive Illiberalism and the Constitution C. Judges, Jurors, and Citizens D. Debiasing 1. Affirmation and jury selection 2. Deliberative depolarization 3. Judicial aporia CONCLUSION APPENDIX: STUDY INSTRUMENT I. CULTURAL WORLDVIEW ITEMS A. Individualism B. Hierarchy II. VIGNETTE III.VIDEOS IV.RESPONSE MEASURES Anyone seriously interested in what this case was about must view that tape. And anyone doing so who is familiar with run-of-the-mine labor picketing, not to mention some other social protests, will be aghast at what it shows we have today permitted an individual judge to do.

--Justice Scalia, dissenting in Madsen v. Women's Health Center, Inc. (1)

Justice Stevens suggests that our reaction to the videotape is somehow idiosyncratic, and seems to believe we are misrepresenting its contents. We are happy to allow the videotape to speak for itself.

--Justice Scalia, majority opinion in Scott v. Harris (2)


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. (3) 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. (4)

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. (5)

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. (6) 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," (7) has received relatively little attention from commentators or jurists. (8)

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. (9) 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, (10) 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.

After presenting background discussion, we describe the study design and results. We then address the study's normative and prescriptive implications.


    The context for our study comprises three elements. The first is the speech-conduct distinction in First Amendment doctrine. The second is the phenomenon of "culturally motivated cognition." And the third is the threat the latter poses to the former.

    1. "Speech" Versus "Conduct"

      Because the Free Speech Clause confers special protection on speech, First Amendment jurisprudence is said to "draw vital distinctions between words and deeds, between ideas and conduct." (11) Regulations of speech are subject to myriad restrictions that regulations of conduct need not satisfy. (12)

      The division between "speech" and "conduct," however, is notoriously problematic. (13) Words are often the key--sometimes the exclusive--instruments of prohibited forms of conduct, from price-fixing (14) to treason, (15) Deeds such as lighting fire to an American flag or to a towering cross--not to mention violently assaulting a person on account of his race or sexual preference--can potently express ideas. In short, we "do things with words and say things with actions." (16) Insisting that every act be definitively categorized as either "speech" or "conduct"--a position John Hart Ely called the "ontological fallacy"--thus invites sophism and ad hocery. (17)

      One way to avoid this problem is to adopt instead what Ely referred to as a "teleological" conception of the speech-conduct distinction. (18) Rather than directing courts to determine whether a particular act is "really" expression or "really" conduct, this approach focuses attention on the government's goal in regulating it. The "bedrock principle underlying the First Amendment ... is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." (19) It therefore makes sense to treat a regulation as abridging speech whenever the government's purpose is to attain some good or state of affairs that reflects aversion to a disfavored idea. (20) If, in contrast, a regulation seeks to promote a good that can be defined independently of hostility to a disfavored idea, we can say that a violator, even if she intends to communicate a message, is being punished for engaging in "illegal conduct," not "for speaking." (21)

      The Supreme Court has used the teleological strategy to distinguish "speech" from "conduct" across a diverse range of settings. The government can ban sleeping overnight in Lafayette Park to protest homelessness, for example, not because sleeping just can't be "speech," but because the government's reason for the ban is "unrelated to suppression of expression": "limit[ing] wear and tear on park properties" justifies prohibiting overnight camping there regardless of whether the campers mean to express a message. (22)

      The government can criminalize the burning of draft cards, (23) the Court has held, but not the burning of American flags. (24) The basis for the distinction isn't that the latter is more speech-like than the former; indeed, both might be recognized (and were in the 1960s) as cogent statements of opposition to a war. The difference stems from the government's reasons for regulating them. Preserving ready proof of compliance with selective-service laws supplies a justification for prohibiting destruction of draft cards independent of any hostility toward the statement of dissent such behavior might express; accordingly, the government's interest in prohibiting the burning of them is (once more) "unrelated to the suppression of free expression." (25) The government's interest in banning the burning of American flags, however, is not. "[P]reserving the flag as a symbol of nationhood and national unity" necessarily involves favoring one set of messages over another. (26) Nor can "preventing breaches of the peace" be viewed as a justification independent of hostility toward a disfavored message if the only cause for such disorder is the "serious offense" onlookers would take toward the burning of the flag. (27)

      The government's interest in protecting individuals from "distinct emotional harms" and in averting retaliatory cycles of violence supplies "an adequate explanation" for hate crime laws "over and above mere disagreement with offenders' beliefs or biases," (28) the Court has reasoned. Likewise, protecting individuals from fear of physical attack is a constitutionally sound basis for prohibiting dramatic gestures, such as cross burnings, intended to intimidate. (29) Nevertheless, if the selectivity with which the government prohibits such assaultive behavior reflects a "special hostility towards the particular biases thus singled out,"...

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