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64 Stan. L. Rev. 851 (2012)
They Saw a Protest: Cognitive Illiberalism and the Speech-Conduct Distinction

handle is hein.journals/stflr64 and id is 861 raw text is: THEY SAW A PROTEST: COGNITIVE
Dan M. Kahan,* David A. Hoffman,**
Donald Braman,*** Danieli Evans,****
&  Jeffrey J. Rachlinski*****
Cultural cognition refers to the unconscious influence of individuals'
group commitments on their perceptions of legally consequential facts. We con-
ducted an experiment to assess the impact of cultural cognition on perceptions of
facts relevant to distinguishing constitutionally protected speech from unpro-
tected conduct. Study subjects viewed a video of a political demonstration.
Half the subjects believed that the demonstrators were protesting abortion out-
side of an abortion clinic, and the other half that the demonstrators were protest-
ing 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 ex-
perimental condition (and thus had the same belief about the nature of the pro-
test) disagreed sharply on key 'facts-including whether the protestors ob-
structed and threatened pedestrians. Subjects also disagreed sharply with those
who shared their cultural outlooks but who were assigned to the opposing exper-
imental condition (and hence had a diferent belief about the nature of the pro-
test). These results supported the study hypotheses about how cultural cognition
* Yale Law School.
** Temple University Beasley School of Law.
*** George Washington University Law School.
**** Cultural Cognition Project Lab at Yale Law School.
*****Comell Law School.
The study featured in this paper was funded by the Oscar M. Ruebhausen Fund at Yale
Law School, Temple University Beasley School of Law, and George Washington University
Law School. We are grateful to members of the Harry Phillips American Inn of Court in
Nashville, Tennessee, for their generous participation in, and thoughtful feedback on, a pre-
test conducted to assess the study design. We are also grateful to Kw Bilz, Jeffrey Dunoff,
Harry Edwards, Bill Eskridge, Janice Nadler, Richard Posner, David Sherman, Dan Simon,
and Avani Sood for comments, and to Terry Maroney, who drew our attention to the con-
flicting perceptions of the videotape featured in Madsen v. Women's Health Center, 512 U.S.
753 (1994).


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