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

Stanford Law Review

Volumn 64, Issue 4, 2012, Pages 851-906

  Kahan, Dan M ^a   Hoffman, David A ^b   Braman, Donald ^c   Evans, Danieli ^a   Rachlinski, Jeffrey J ^d  

^a YALE UNIVERSITY   (United States)

^b TEMPLE UNIVERSITY   (United States)

^c GEORGE WASHINGTON UNIVERSITY   (United States)

^d MIT Sloan School of Management   (United States)

Author keywords

[No Author keywords available]

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EID: 84859796397     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (309)

1. 512 U.S. 753, 786 (1994) (Scalia, J., concurring in the judgment in part and dissenting in part).
2. 550 U.S. 372, 378 n.5 (2007) (Scalia, J.) (citations omitted).
3. See Albert H. Hastorf & Hadley Cantril, They Saw a Game: A Case Study, 49 J. ABNORMAL & SOC. PSYCHOL. 129 (1954).
4. See generally Emily Balcetis & David Dunning, See What You Want to See: Motivational Influences on Visual Perception, 91. J. PERSONALITY & SOC. PSYCHOL. 612 (2006).
5. Roger Giner-Sorolla & Shelly Chaiken, Selective Use of Heuristic and Systematic Processing Under Defense Motivation, 23. PERSONALITY & SOC. PSYCHOL. BULL. 84 (1997).
6. Ziva Kunda, The Case for Motivated Reasoning, 108. PSYCHOL. BULL. 480 (1990).
7. Anca M. Miron et al., Motivated Shifting of Justice Standards, 36 PERSONALITY & SOC. PSYCHOL. BULL. 768 (2010).
8. See generally Dan M. Kahan, The Supreme Court 2010 Term-Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 HARV. L. REV. 1, 59-66 (2011) [hereinafter Kahan, Neutral Principles]. A number of recent studies examine motivated cognition in law.
9. See Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases, 158 U. PA. L. REV. 729 (2010) [hereinafter Kahan, Culture, Cognition, and Consent].
10. Dan M. Kahan & Donald Braman, The Self-Defensive Cognition of Self-Defense, 45 AM. CRIM. L. REV. 1 (2008).
11. Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837 (2009).
12. Janice Nadler & Mary-Hunter McDonnell, Moral Character, Motive, and the Psychology of Blame, 97 CORNELL L. REV. 255 (2012).
13. Avani Mehta Sood & John M. Darley, The Plasticity of Harm in the Service of Punishment Goals: Legal Implications of Outcome-Driven Reasoning, 100 CALIF. L. REV. (forthcoming 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1641022.
14. See generally RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION (1996).
15. DAVID A.J. RICHARDS, TOLERATION AND THE CONSTITUTION (1986).
16. See generally Dan M. Kahan, The Cognitively Illiberal State, 60 STAN. L. REV. 115 (2007).
17. For a provocative and insightful exception, see Sood & Darley, supra note 5.
18. See generally Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413 (1996).
19. See Texas v. Johnson, 491 U.S. 397, 408-09 (1989) (holding that the First Amendment does not permit speech to be restricted on the ground that "an audience that takes serious offense at particular expression is necessarily likely to disturb the peace").
20. Terminiello v. Chicago, 337 U.S. 1, 4 (1949) ("[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging.").
21. Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002).
22. See Jed Rubenfeld, The First Amendment's Purpose, 53 STAN. L. REV. 767, 777 (2001).
23. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 576 (1991) (Scalia, J., concurring) ("[V]irtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purpose-if only expressive of the fact that the actor disagrees with the prohibition.")
24. John Hart Ely, Comment, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482, 1496 (1975) ("Burning a draft card to express one's opposition to the draft is an undifferentiated whole, 100% action and 100% expression, and to outlaw the act is therefore necessarily to regulate both elements.").
25. Louis Henkin, The Supreme Court, 1967 Term- Foreword: On Drawing Lines, 82 HARV. L. REV. 63, 79 (1968) (arguing that the "distinction between speech and nonspeech has no content" and is "specious"). Thomas Emerson is the constitutional theorist most famously associated with the distinction.
26. See THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1970).
27. Cf. FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 427 (1990) (holding that boycott conducted to effect increase in prices is not protected by First Amendment).
28. See R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992) ("[W]ords can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation's defense secrets)").
29. Rubenfeld, supra note 12, at 784 (emphasis omitted)\.
30. see also Henkin, supra note 13, at 79 ("Speech is conduct, and actions speak.").
31. See Ely, supra note 13, at 1495-96.
32. See Ely, supra note 13 at 1496.
33. Texas v. Johnson, 491 U.S. 397, 414 (1989).
34. See Ely, supra note 13, at 1496-500
35. Kagan, supra note 9, at 428-32.
36. Rubenfeld, supra note 12, at 777.
37. Rubenfeld, supra note 12, at 778 (emphasis added).
38. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 295, 299 (1984).
39. United States v. O'Brien, 391 U.S. 367, 382 (1968).
40. United States v. Eichman, 496 U.S. 310, 312 (1990)
41. Johnson, 491 U.S. at 399.
42. O'Brien, 391 U.S. at 377.
43. Johnson, 491 U.S. at 407.
44. see also Eichman, 496 U.S. at 316-17 (stating that protection of the meaning of the flag as a symbol of national unity cannot be understood without reference to interest in regulating the ideas associated with various uses of the flag).
45. Johnson, 491 U.S. at 407-08.
46. Wisconsin v. Mitchell, 508 U.S. 476, 488 (1993).
47. See Virginia v. Black, 538 U.S. 343, 347-48 (2003).
48. R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992).
49. See, e.g., Ronald Dworkin, Liberalism, in LIBERALISM AND ITS CRITICS 60, 63-64 (Michael J. Sandel ed., 1984).
50. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)
51. see DWORKIN, supra note 6, at 237-38 (writing that the First Amendment reflects the liberal principle that "no one may be prevented from influencing the shared moral environment, through his own private choices, tastes, opinions, and example, just because these tastes or opinions disgust those who have the power to shut him up or lock him up").
52. Note, A Communitarian Defense of Group Libel Laws, 101 HARV. L. REV. 682, 688 (1988) (arguing that the First Amendment implements a bar on state endorsement of the good by treating "aversion that some persons feel toward the life choices of others" as a noncognizable harm).
53. See JOHN RAWLS, POLITICAL LIBERALISM 175, 217-18 (expanded ed. 1993) (articulating the norm of "public reason" that prohibits political actors in most contexts from invoking "comprehensive views" that "include[] conceptions of what is of value in human life, as well as ideals of personal virtue and character" and instead requires them to "explain... how the principles and policies they advocate and vote for can be supported by" considerations consistent with "a diversity of reasonable religious and philosophical doctrines").
54. see also David A. Strauss, Legal Argument and the Overlapping Consensus 20-21 (July 12, 1998) (unpublished manuscript) (on file with author) (arguing that conventional modes of legal reasoning and justification reflect a liberal public-reason norm).
55. See, e.g., Kagan, supra note 9, at 453-54 (explaining that "the strict scrutiny standard... is best understood as an evidentiary device" to furnish "assurance that the government has acted for proper reasons" and that the interest asserted is not a pretext for "antipathy toward the speech affected" by regulation).
56. See Romer v. Evans, 517 U.S. 620, 634-35 (1996) ("[I]f the constitutional conception of equal protection of the laws means anything, it must at the very least mean that a bare... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." (alteration in original) (internal quotation marks omitted) (quoting Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973))).
57. See Lawrence v. Texas, 539 U.S. 558, 564, 567-71 (2003) (holding that the Due Process Clause forbids the "majority [to] use the power of the State to enforce... on the whole society" standards of private conduct that originate in "religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family").
58. See generally DWORKIN, supra note 6, at 110-12 (arguing that the right of individuals "to confront for themselves, answering to their own consciences and convictions, the most fundamental questions touching the meaning and value of their own lives" inheres in "the structure of the Constitution" as well as in various textual provisions of it).
59. Richards, supra note 6 (using liberal theory to explicate constitutional guarantees of free speech, freedom of religion, equality, and privacy).
60. Dworkin, supra note 31, at 70 (asserting that "the rights encoded in the Bill of Rights of the United States Constitution, as interpreted (on the whole) by the Supreme Court, are those that a substantial number of liberals would think reasonably well suited to what the United States now requires").
61. Cf. Kagan, supra note 9, at 511 (suggesting that the First Amendment prohibition on making aversion to ideas a basis for regulating reflects the "principle that the government must treat all persons with equal respect and concern" and that the same principle "may well explain much of equal protection law").
62. For this reason, we refer interchangeably to "cultural cognition" and "culturally motivated cognition" or "culturally motivated reasoning."
63. See generally Kahan, Neutral Principles, supra note 5, at 19-26.
64. See, e.g., Dan M. Kahan, Donald Braman, Paul Slovic, John Gastil & Geoffrey Cohen, Cultural Cognition of the Risks and Benefits of Nanotechnology, 4 NATURE NANOTECHNOLOGY 87, 87 (2009).
65. See, e.g., Dan M. Kahan, Donald Braman, Geoffrey L. Cohen, John Gastil & Paul Slovic, Who Fears the HPV Vaccine, Who Doesn't, and Why? An Experimental Study of the Mechanisms of Cultural Cognition, 34 LAW & HUM. BEHAV. 501, 504 (2010).
66. See generally Dan M. Kahan, Hank Jenkins-Smith & Donald Braman, Cultural Cognition of Scientific Consensus, 14 J. RISK RES. 147 (2011).
67. See generally David K. Sherman & Geoffrey L. Cohen, The Psychology of Self-Defense: Self-Affirmation Theory, 38 ADVANCES EXPERIMENTAL SOC. PSYCHOL. 183 (2006).
68. See Dan Kahan, Fixing the Communications Failure, 463 NATURE 296, 296 (2010).
69. See MARY DOUGLAS & AARON B. WILDAVSKY, RISK AND CULTURE: AN ESSAY ON THE SELECTION OF TECHNICAL AND ENVIRONMENTAL DANGERS 177-79 (1982).
70. Karl Dake, Orienting Dispositions in the Perception of Risk: An Analysis of Contemporary Worldviews and Cultural Biases, 22 J. CROSS-CULTURAL PSYCHOL. 61, 78 (1991).
71. Dan M. Kahan & Donald Braman, Cultural Cognition and Public Policy, 24 YALE L. & POL'Y REV. 149, 158 (2006).
72. Dan M. Kahan, Donald Braman, John Gastil, Paul Slovic & C.K. Mertz, Culture and Identity-Protective Cognition: Explaining the White-Male Effect in Risk Perception, 4 J. EMPIRICAL LEGAL STUD. 465, 474, 485-88 (2007).
73. Dan M. Kahan, Donald Braman, John Gastil, Paul Slovic & C.K. Mertz, Culture and Identity-Protective Cognition: Explaining the White-Male Effect in Risk Perception, 4 J. EMPIRICAL LEGAL STUD 475-76, 489-91.
74. Dan M. Kahan, Donald Braman, John Gastil, Paul Slovic & C.K. Mertz, Culture and Identity-Protective Cognition: Explaining the White-Male Effect in Risk Perception, 4 J. EMPIRICAL LEGAL STUD 475-76, 489-91.
75. See Kahan et al., supra note 41.
76. See Dan M. Kahan, Donald Braman, John Monahan, Lisa Callahan & Ellen Peters, Cultural Cognition and Public Policy: The Case of Outpatient Commitment Laws, 34 LAW & HUM. BEHAV. 118 (2010).
77. See Roberto Gutierrez & Roger Giner-Sorolla, Anger, Disgust, and Presumption of Harm as Reactions to Taboo-Breaking Behaviors, 7 EMOTION 853, 853-54 (2007) (finding that individuals are motivated to impute harm to intrinsically immoral behavior).
78. Jonathan Haidt & Matthew A. Hersh, Sexual Morality: The Cultures and Emotions of Conservatives and Liberals, 31 J. APPLIED SOC. PSYCHOL. 191, 212-13 (2001) (same).
79. See John Gastil, Don Braman, Dan Kahan & Paul Slovic, The Cultural Orientation of Mass Political Opinion, 44 PS: POL. SCI. & POL. 711 (2011).
80. Kahan, supra note 7, at 118-42.
81. See generally Robert J. Robinson et al., Actual Versus Assumed Differences in Construal: "Naive Realism" in Intergroup Perception and Conflict, 68 J. PERSONALITY & SOC. PSYCHOL. 404 (1995).
82. See Kahan, supra note 7, at 148-51.
83. See generally JOSEPH R. GUSFIELD, SYMBOLIC CRUSADE: STATUS POLITICS AND THE AMERICAN TEMPERANCE MOVEMENT (2d ed. 1986).
84. See, e.g., Kagan, supra note 9, at 431 n.55, 453-55, 500-01.
85. See Kahan, Culture, Cognition, and Consent, supra note 5.
86. See Kahan et al., supra note 5.
87. See Kahan & Braman, supra note 5.
88. Sood & Darley, supra note 5, report that individuals are likely to impute "harm" to behavior they find offensive when told that only "harmful" behavior can be criminalized, a finding, they recognize, with implications for constitutional law. Our study complements theirs both by connecting motivated reasoning to the specific facts relevant to distinguishing permissible regulations of conduct from impermissible regulations of speech, and by examining how motivated cognition interacts with diverse systems of values, the distinctive focus of cultural cognition.
89. See generally Dan M. Kahan, The Economics-Conventional, Behavioral, and Political-of "Subsequent Remedial Measures" Evidence, 110 COLUM. L. REV. 1616 (2010).
90. Jeffrey J. Rachlinski, Comment, Is Evolutionary Analysis of Law Science or Storytelling?, 41 JURIMETRICS J. 365 (2001).
91. See Boos v. Barry, 485 U.S. 312, 316, 320-21 (1988).
92. Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
93. See, e.g., Texas v. Johnson, 491 U.S. 397, 408 (1989) ("The State's position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption." (footnote omitted)).
94. Cox v. Louisiana, 379 U.S. 536, 550 (1965) (finding "[t]he fear of violence... based upon the reaction of" angry onlookers insufficient to justify breaking up a civil rights demonstration).
95. Hill v. Colorado, 530 U.S. 703, 716 (2000).
96. Terminiello, 337 U.S. at 4.
97. Feiner v. New York, 340 U.S. 315, 321 (1951).
98. Schenck v. Pro-Choice Network of W.N.Y., 519 U.S. 357, 363 (1997).
99. Cox, 379 U.S. at 555.
100. Feiner, 340 U.S. at 320.
101. See, e.g., Cox, 379 U.S. at 546 ("The State argues... that while the demonstrators started out to be orderly,... [their behavior thereafter] converted the peaceful assembly into a riotous one. The record, however, does not support this assertion." (footnote omitted))
102. Edwards v. South Carolina, 372 U.S. 229, 235 (1963) ("The state courts have held that the petitioners' conduct constituted breach of the peace under state law, and we may accept their decision as binding upon us to that extent. But it nevertheless remains our duty in a case such as this to make an independent examination of the whole record.").
103. See, e.g., Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 785 (1994) (Scalia, J., concurring in the judgment in part and dissenting in part) (abortion clinic protest)
104. Cox, 379 U.S. at 547 (civil rights protest)
105. Papineau v. Parmley, 465 F.3d 46, 52 (2d Cir. 2006) (tax protest)
106. United States v. Soderna, 82 F.3d 1370, 1373 (7th Cir. 1996) (abortion clinic protest).
107. Compare, e.g., Cannon v. City & Cnty. of Denver, 998 F.2d 867, 872 (10th Cir. 1993) (reversing grant of summary judgment against abortion clinic protestors suing police for breach-of-peace arrest, stating that "[w]e find in the instant case no assault or threatening of bodily harm, no truculent bearing, no intentional discourtesy, no personal abuse," but rather "only an effort to persuade a willing listener").
108. Compare, e.g., Cannon v. City & Cnty. of Denver, 998 F.2d at 880 (Anderson, J., concurring) ("Frankly, in my view if the plaintiffs' evidence at the end of a trial remained as it now stands, the trial judge would be entitled to grant a defense motion... for judgment as a matter of law. Thus, technically, the record before us now could support the grant of summary judgment to the defendant City.").
109. The study was conducted in November 2010, before congressional repeal of the military's "don't ask, don't tell" policy.
110. See Dan M. Kahan, Cultural Cognition as a Conception of the Cultural Theory of Risk, in HANDBOOK OF RISK THEORY: EPISTEMOLOGY, DECISION THEORY, ETHICS, AND SOCIAL IMPLICATIONS OF RISK 725 (Sabine Roeser et al. eds., 2012).
111. Membership in the Democratic or Republican Party and possession of "liberal" or "conservative" political views are likely to generate motivated cognition too.
112. See, e.g., Geoffrey L. Cohen, Party over Policy: The Dominating Impact of Group Influence on Political Beliefs, 85 J. PERSONALITY & SOC. PSYCHOL. 808 (2003).
113. We chose to use the culturalcognition worldview scales instead for several reasons. One is that the study hypotheses contemplated divisions simultaneously along two dimensions, effects that could not be captured by one-dimensional party-affiliation or ideology scales. In addition, previous research has established that the cultural worldview scales have greater predictive power for individuals of low to moderate political sophistication
114. see Gastil et al., supra note 52, at 712-13, many of whom identify themselves as unaffiliated with either major party and disclaim either a liberal or conservative orientation. Finally, use of the cultural-cognition scales facilitated continuity between the present study and numerous others examining the contribution the specified worldviews make to political conflict over policy and legally relevant facts.
115. See, e.g., Gastil et al., supra note 52, at 713 (finding that egalitarian individualism predicts pro-gay rights and antimilitary policy preferences).
116. Kahan et al., supra note 46, at 480 (noting egalitarian individualist predisposition to form fact perceptions supportive of egalitarian gender norms).
117. See Dake, supra note 45, at 72 (finding that hierarchy is associated with the perception that social deviance generates harm).
118. Kahan et al., supra note 46, at 475, 489-90 (noting hierarchical communitarian predisposition to form fact perceptions supportive of hierarchical gender norms).
119. See Gastil et al., supra note 52, at 713 (finding hierarchical communitarian disposition to be associated with pro-military policy preferences).
120. See Kahan et al., supra note 46, at 474.
121. See Kahan et al., supra note 46 at 469, 480-81.
122. See THE CULTURAL COGNITION PROJECT, THE CULTURAL COGNITION OF GAY AND LESBIAN PARENTING: SUMMARY OF FIRST ROUND DATA COLLECTION 10 (2010), available at http://www.culturalcognition.net/browse-papers/first-report-on-gay-and-lesbian-parenting.html.
123. See Kahan et al., supra note 46, at 489-90 (finding egalitarian communitarians to be ambivalent on harm from abortion).
124. Polimetrix is a public opinion research firm that conducts online surveys and experiments on behalf of academic and governmental researchers and commercial customers (including political campaigns). It maintains a panel of over one million Americans that it uses to construct representative study samples. For more information
125. see DOUGLAS RIVERS, SAMPLING FOR WEB SURVEYS (2007), available at https://s3.amazonaws.com/yg-public/Scientific/Sample+Matching_JSM.pdf.
126. See, e.g., Kahan et al., supra note 42, at 151. For a full discussion of the complete and short-form versions of the scales and of their psychometric properties.
127. See Kahan, supra note 74.
128. The factor Hierarchy had a Cronbach's α of 0.87, while the factor Individualism had a Cronbach's α of 0.81. Cronbach's α is a statistic for measuring the internal validity of attitudinal scales. By computing the degree of intercorrelation that exists among various items within a scale, it can be used to assess whether the items can properly be treated as common indicators of a latent attitude or trait (i.e., one that cannot be directly observed and measured).
129. See generally Jose M. Cortina, What Is Coefficient Alpha? An Examination of Theory and Applications, 78 J. APPLIED PSYCHOL. 98 (1993).
130. Composite scales of this sort are desirable not only because they facilitate measurement of unobservable dispositions but also because the measurements they enable are necessarily more precise than ones based on any of the individual indicators alone, each of which can be seen as an imperfect or "noisy" approximation of the phenomenon being studied.
131. See generally J. Philippe Rushton et al., Behavioral Development and Construct Validity: The Principle of Aggregation, 94 PSYCHOL. BULL. 18 (1983). Generally, α ≥.70 suggests scale validity (i.e., that the measures when aggregated furnish a reliable measure of the latent trait or attitude).
132. See Cortina, supra, at 101.
133. Treating Hierarchy and Individualism as continuous predictors maximizes statistical power and avoids the bias that can be introduced by splitting them at the mean or other selected points in order to transform them into discrete, categorical measures.
134. See JAMES JACCARD & Robert Turrisi, INTERACTION EFFECTS IN MULTIPLE REGRESSION 86 (2d ed. 2003).
135. The study instrument, including the vignette and response instruments, is reproduced in Appendix A. The videos can be viewed online.
136. See videoreview12, Abortion Clinic 11 22 2010, YOUTUBE (Jan. 6, 2011), http://www.youtube.com/watch?v=k8ru-FE2v_8
137. videoreview12, Recruit_Center_11192010, YOUTUBE (Jan. 6, 2011), http://www.youtube.com/watch?v=X3PJACpL53k.
138. Section 248 of the Act provides: (a) Prohibited Activities.-Whoever- (1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services [is subject to criminal and civil penalties]. 18 U.S.C. § 248(a)(1) (2006).
139. The Freedom to Serve Act of 2008 bill read: (a) Whoever- (1) by force or threat of force or by physical obstruction, injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been providing Federal or State military recruiting service. H.R. 6023, 110th Cong. § 3(a) (2008) (internal quotation marks omitted).
140. In Hill v. Colorado, 530 U.S. 703 (2000), all nine Justices, including three dissenters who would have invalidated the statute on other grounds, endorsed the constitutionality of language similar to that in our vignettes.
141. In Hill v. Colorado, 530 U.S. at 707-08, 735 (describing the statute in question and finding it valid)
142. In Hill v. Colorado, 530 U.S at 754-55 (Scalia, J., dissenting) (arguing that the portion of the law that subjects to liability "any person who 'knowingly obstructs, detains, hinders, impedes, or blocks another person's entry to or exit from a health care facility'" is "narrowly tailored to serve" the state's asserted interest in securing access to such a facility and would not have been reinforced with additional provisions had the state not also been interested in stifling abortion clinic protestors in particular)
143. In Hill v. Colorado, 530 U.S at 777 (Kennedy, J., dissenting) (same). Lower courts have rejected constitutional challenges to FACE.
144. See, e.g., United States v. Soderna, 82 F.3d 1370, 1375 (7th Cir. 1996) ("To persuade and to blockade are importantly different forms of action.").
145. See Snyder v. Phelps, 131 S. Ct. 1207 (2011). The Supreme Court granted certiorari in Phelps approximately one year after the Cambridge demonstration featured in the study videotape. At issue in Phelps was an award of damages against the Westboro Baptist Church members for intentional infliction of emotional distress.
146. See Snyder v. Phelps, 131 S. Ct 1214. The basis of the award was a protest that the group conducted at the funeral of a soldier, whose death, the group asserted, was an act of retaliation by God for the United States' tolerance of homosexuality.
147. See Snyder v. Phelps, 131 S. Ct. at 1213. Applying the teleological conception of speech, the Court held that the award of damages to the soldier's father violated the First Amendment.
148. See Snyder v. Phelps, 131 S. Ct. at 1218-20 (noting that "any distress occasioned by Westboro's picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself," and suggesting that the state would be free to prohibit protest behavior that was "unruly" or "violen[t]," or that "interfere[d] with the funeral itself").
149. See infra Figure 3.
150. In reality, the police did not halt the protest, which terminated without incident after approximately forty-five minutes.
151. The necessity of finding facts such as these, which parallel ones that the Supreme Court has indicated supply permissible grounds for restricting protest activity
152. see supra Part I.C, has been emphasized by lower courts that have rejected constitutional challenges to FACE
153. See, e.g., United States v. Scott, 958 F. Supp. 761, 774-75 (D. Conn. 1997), aff'd sub nom.
154. United States v. Vazquez, 145 F.3d 74 (2d Cir. 1998). The court in Scott found that one defendant protestor had violated FACE by "physically obstructing and threatening persons seeking to enter and exit... in order to intimidate and interfere,"
155. United States v. Vazquez, 145 F.3d 770, but that a second had not because "her intent in sidewalk counseling and leafleting [was] to persuade women to consider alternatives to abortion,"
156. United States v. Vazquez, 145 F.3d 770-71.
157. Cf. Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
158. Reliability measured using Cronbach's α was 0.95.
159. Pro_Protest was constructed as a conventional composite Likert scale: items expressing a pro-police fact perception or outcome judgment were reverse coded to reflect a pro-protestor valence; scores on all response items were then normalized (via z-score transformation) and added to form a composite score, which was itself normalized (via z-score transformation)
160. See Eliot R. Smith, Research Design, in HANDBOOK OF RESEARCH METHODS IN SOCIAL AND PERSONALITY PSYCHOLOGY 17, 31 (Harry T. Reis & Charles M. Judd eds., 2000).
161. Charles M. Judd, Everyday Data Analysis in Social Psychology: Comparisons of Linear Models, in HANDBOOK OF RESEARCH METHODS IN SOCIAL AND PERSONALITY PSYCHOLOGY,.
162. supra note 97, at 370, 371-72 (outlining use of multivariate regression for analysis of experimental results and explaining advantages over ANOVA).
163. See supra note 85.
164. See generally JACOB COHEN et al., APPLIED MULTIPLE REGRESSION/CORRELATION ANALYSIS FOR THE BEHAVIORAL SCIENCES 375-83 (3d ed. 2003) (outlining and explaining the use of cross-product interaction terms in multivariate regression to model and test the hypothesis that the effect of a continuous predictor will vary across the levels of a categorical one).
165. The underlying regression equation in Model 3 is: Y = b1 × Recruitment + b2 × Hierarchy + b3 × Individualism + b4 × Hierarchy × Recruitment + b5 × Individualism × Recruitment + constant where Y is the score on Pro_Protest, and b1-b5 are the coefficients for the specified predictors and cross-product interaction variables.
166. See infra Figure 6.
167. See infra Figure 6.
168. In Model 3, the coefficient for Recruitment and the constant are the effects of being assigned either to the military recruitment center condition or to the abortion clinic condition, respectively, when the cultural worldviews are equal to zero or their mean values. Again, they are close to zero and statistically nonsignificant. One can thus conclude that the "culturally average" subject would react comparably in both conditions.
169. The coefficients for each worldview predictor indicate the impact of the specified worldview scale when all other predictors equal zero
170. see leona s. Aiken et al., MULTIPLE REGRESSION: TESTING AND INTERPRETING INTERACTIONS 123-25 (1991), which will be true.
171. when a subject is assigned to the abortion clinic condition (Recruitment = 0) and has the mean score on the other worldview scale.
172. The coefficient for each cross-product interaction variable indicates the unique incremental effect associated with the indicated worldview in the recruitment center condition.
173. The coefficient for each cross-product interaction variable indicates the unique incremental effect associated with the indicated worldview in the recruitment center condition.
174. For purposes of these estimates, the values for the cultural worldview predictors were both set one standard deviation from their means in the directions necessary to form the specified worldview combinations.
175. See Aiken et al., supra note 105, at 13.
176. See infra Figure 6.
177. See supra Table 1.
178. The statistical significance of the difference between any group's estimated score in one condition and its estimated score in another, and of the difference between any two groups' estimated scores within a condition, must be determined by calculation. However, a rough visual heuristic is to consider whether the 0.95 confidence interval of one estimate overlaps with the point estimate of another (not the latter's confidence interval, as is sometimes mistakenly stated).
179. See generally Sarah Belia et al., Researchers Misunderstand Confidence Intervals and Standard Error Bars, 10 PSYCHOL. METHODS 389, 393 (2005).
180. Geoff Cumming & Sue Finch, Inference by Eye: Confidence Intervals and How to Read Pictures of Data, 60 AM. PSYCHOL. 170 (2005).
181. Nathaniel Schenker & Jane F. Gentleman, On Judging the Significance of Differences by Examining the Overlap Between Confidence Intervals, 55 AM. STATISTICIAN 182 (2001).
182. See supra Figure 6.
183. See supra Figure 6.
184. See supra Figure 6.
185. See supra Figure 7.
186. See supra Figure 7.
187. See supra Figure 7.
188. See supra Figure 7.
189. It is reasonable to surmise that the controversies featured in this study would divide subjects along other lines in addition to cultural outlooks as we measure them. For example, women (55%) were more likely than men (37%) to agree that the police should be enjoined from halting future demonstrations. The proportions of both male and female subjects who supported this outcome, however, did not differ meaningfully across conditions. Thus, cultural variance obviously cannot be attributed or reduced to gender variance. Political party affiliation did register sensitivity to the experimental manipulation: in the abortion clinic condition, the majority of Democrats (57%) opposed an injunctive remedy, and a majority of Republicans (62%) favored it; in the recruitment center condition, a majority of Republicans (67%) opposed and a majority of Democrats (61%) favored such an outcome. Of course, this simple partisan inversion of impressions is necessarily less nuanced than the cross-cutting shifts observed when members of the sample were classified simultaneously along the two cultural dimensions. Moreover, among the one-third of the sample that did not identify themselves as either Democrats or Republicans, there was again no difference between the abortion clinic and military recruitment conditions. We are eager to add, however, that we regard the question "What has the biggest impact-culture, gender, political ideology, race, etc.?" as ill-posed. Cultural worldviews tend to cohere with other characteristics- including political affiliation, gender, race, and class-in patterns that indicate the same latent predispositions that the cultural worldviews by themselves measure.
190. See Kahan, supra note 74, at 740-42. When forced to choose-as one often is, by sample size-cultural worldviews can be expected to be more discerning indicators of these predispositions, and hence stronger predictors of cultural variance in cognition, than these other characteristics.
191. See Kahan et al., supra note 41, at 505 n.5. Ideally, however, nonlinear scaling and classification techniques, such as grade-of-membership modeling and latent-class analysis, could be used to form even more discerning and hence even more predictive measures of cultural predispositions based on appropriate combinations of cultural worldviews and related identifying characteristics.
192. See generally Kenneth G. Manton et al., The Use of Grade-of- Membership Techniques to Estimate Regression Relationships, 22 SOC. METHODOLOGY 321 (1992).
193. Richard F. Potthoff et al., Dirichlet Generalizations of Latent-Class Models, 17 J. CLASSIFICATION 315 (2000). Such an analysis would likely add resolution and detail to the picture of motivated cognition that our data reveal. But it would still be culturally motivated cognition that is being observed.
194. We used a video to elicit evidence of cultural cognition because of the utility of a visual stimulus for the experimental design and because of the prevalence of video proof in real-world cases that involve First Amendment challenges to restrictions on protest activity. See supra note 71 and accompanying text. Our results reinforce the concerns and cautions of authors who have emphasized the risk that judges and jurors will invest video proofs, which are becoming increasingly common, with more weight than they are due.
195. See NEAL FEIGENSON & CHRISTINA SPIESEL, LAW ON DISPLAY: THE DIGITAL TRANSFORMATION OF LEGAL PERSUASION AND JUDGMENT 1-17 (2009).
196. Jessica Silbey, Cross-Examining Film, 8 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 17, 17-32 (2008).
197. Howard M. Wasserman, Video Evidence and Summary Judgment: The Procedure of Scott v. Harris, 91 JUDICATURE J. 180, 180-84 (2008). Nevertheless, the impact of cultural cognition is by no means limited to visual perception.
198. See, e.g., Kahan et al., supra note 40, at 87-88 (showing the biased assimilation of evidence in written materials). Nor is there any reason to believe that videos are a form of trial proof uniquely vulnerable to the effects of culturally motivated cognition.
199. See Kahan et al., supra note 5, at 900-01.
200. See Kahan, supra note 7, at 127-28.
201. See Rubenfeld, supra note 12, at 818-19.
202. see also supra Part I.A.
203. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293-94 (1984).
204. Cf. Clark v. Cmty. for Creative Non-Violence, 468 U.S. at 298 (stating that the "four-factor standard... for validating a regulation of expressive conduct... in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions").
205. See Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 536 (1980).
206. Cf. Collin v. Smith, 578 F.2d 1197, 1209 (7th Cir. 1978) ("[T]he Village has flatly prohibited First Amendment activity, not itself directly productive of the feared injury, by those too controversial to obtain commercial insurance.").
207. Cf. Olivieri v. Ward, 637 F. Supp. 851, 876 (S.D.N.Y.)
208. aff'd in part, rev'd in part, 801 F.2d 602 (2d Cir. 1986) (finding logistical concerns to be a pretext for denying gay rights group a permit to assemble in public forum along St. Patrick's Day parade route).
209. But cf. Irish Lesbian & Gay Org. v. Giuliani, 918 F. Supp. 732, 742-43 (S.D.N.Y. 1996) (upholding reliance on content-neutral criteria involving traffic disruption and public safety to deny marching permit to gay and lesbian group).
210. See Burson v. Freeman, 504 U.S. 191, 213 (1992) (Kennedy, J., concurring) ("In some cases, a censorial justification will not be apparent from the face of a regulation which draws distinctions based on content, and the government will tender a plausible justification unrelated to the suppression of speech or ideas. There the compelling-interest test may be one analytical device to detect, in an objective way, whether the asserted justification is in fact an accurate description of the purpose and effect of the law.")
211. Kagan, supra note 9, at 454 ("[T]he strict scrutiny test operates as a measure of governmental motive.").
212. Rubenfeld, supra note 12, at 786 (stating that the First Amendment strict scrutiny test can be conceived of as "a device for smoking out impermissible purposes").
213. Cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
214. Cf. Texas v. Johnson, 491 U.S. 397, 438 (1989) (Stevens, J., dissenting) ("Th[is] case has nothing to do with 'disagreeable ideas.' It involves disagreeable conduct" (citation omitted)).
215. Cf. Am. Booksellers Ass'n v. Hudnut, 771 F.2d 323, 331-33 (7th Cir. 1985).
216. Cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 416 (1992) (Stevens, J., concurring in the judgment) (explaining that cross-burning has "communicative content-a message of racial, religious, or gender hostility").
217. See generally City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 438-39 (2002) (plurality opinion) (explaining that governing authority must furnish "evidence... [to] support its rationale" and cannot "get away with shoddy data or reasoning").
218. See supra Part I.A.
219. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 473 n.24 (1985) (Marshall, J., concurring in the judgment in part and dissenting in part) ("The discreteness and insularity warranting a 'more searching judicial inquiry' must... be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community." (quoting United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938))).
220. See generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 146 (1980) (stating that strict scrutiny "flushes out" illicit motivation in equal protection analysis).
221. Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 436-37 (1997) (same).
222. See generally J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2320 (1997) (examining dynamics by which Supreme Court decisions become a focus for status competition among competing cultural groups).
223. See, e.g., Rubenfeld, supra note 134, at 441-43 (arguing against interest balancing in equal protection analysis).
224. Rubenfeld, supra note 12, at 778-93 (arguing against interest balancing in free speech analysis).
225. See Konigsberg v. State Bar, 366 U.S. 36, 61 (1961) (Black, J., dissenting) ("I believe that the First Amendment's unequivocal command that there shall be no abridgement of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the 'balancing' that was to be done in this field.").
226. Ely, supra note 13, at 1501.
227. See generally Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410 (1994).
228. See generally Paul M. Secunda, Lawrence's Quintessential Millian Moment and Its Impact on the Doctrine of Unconstitutional Conditions, 50 VILL. L. REV. 117 (2005).
229. Lior Jacob Strahilevitz, Consent, Aesthetics, and the Boundaries of Sexual Privacy After Lawrence v. Texas, 54 DEPAUL L. REV. 671 (2005).
230. Studies suggest that mock jurors' reactions to detailed trial vignettes are strongly predictive of how they respond to more vivid forms of proof, including the testimony of live witnesses.
231. See Brian H. Bornstein, The Ecological Validity of Jury Simulations: Is the Jury Still Out?, 23 LAW & HUM. BEHAV. 75, 81-83 (1999). In addition, the views of individual jurors after consideration of the evidence are generally thought to be predictive of how they'll vote at the conclusion of deliberations.
232. See Dennis J. Devine et al., Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 PSYCHOL. PUB. POL'Y & L. 622, 690-92 (2001). Once the relationship between individual cultural worldviews and first-ballot votes is established, computer simulations can furnish additional insight into the probability of final verdicts in various kinds of cases conditional on the worldviews (and other characteristics) of the individuals on any particular jury.
233. See Maggie Wittlin, The Results of Deliberation 15-20 (June 14, 2011) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1865031.
234. Kahan et al., supra note 5.
235. Scott v. Harris, 550 U.S. 372, 380 (2007).
236. See Kahan et al., supra note 5.
237. See Has the Supreme Court Limited Americans' Access to Courts? Hearing Before the S. Comm. on the Judiciary, 111th Cong. 96-97 (2009) (statement of Stephen B. Burbank) (arguing that Supreme Court's "judicial experience and common sense" standard for judging a motion to dismiss complaint is "an invitation to 'cognitive illiberalism'")
238. Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 DUKE L.J. 1, 25-26 & n.90 (2010) (citing study to critique newly announced "plausibility" standard used to judge sufficiency of a claim).
239. Michael S. Pardo, Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation, 51 B.C. L. REV. 1451, 1465-66 & n.119 (2010) (citing study to critique liberal summary judgment standards).
240. Adam N. Steinman, The Pleading Problem, 62 STAN. L. REV. 1293, 1313 n.121 (2010) (arguing on the basis of study results that courts' judgments on the factual "plausibility" of allegations in complaints are unreliable).
241. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986) (requiring plaintiffs to show malice with clear and convincing evidence at the summary judgment state of litigation)
242. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 508, 514 (1984) (authorizing appellate courts to "conduct an independent review of the evidence" in First Amendment cases).
243. See generally 10B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KAYNE, FEDERAL PRACTICE AND PROCEDURE § 2730, at 15 (3d ed. 1998) ("[S]ummary adjudication may be thought of as a useful procedural tool" to reduce litigation cost incident to asserting First Amendment rights).
244. Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229 (1985) (discussing use of more searching appellate review in constitutional cases).
245. See Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 1, 28 (2007) (showing power of judges to resist various biases at least in some circumstances).
246. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Judging by Heuristic: Cognitive Illusions in Judicial Decision Making, 86 JUDICATURE J. 44, 50 (2002) (identifying means by which judges can minimize effects of cognitive illusions in deciding cases).
247. Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195, 1221-25 (2009) (finding that judges are able to resist implicit racial bias when motivated to do so).
248. See Paul M. Secunda, Cultural Cognition at Work, 38 FLA. ST. U. L. REV. 107, 139-40 (2010) (attributing judicial conflict over employment law decisions to cultural cognition).
249. cf. RICHARD A. POSNER, HOW JUDGES THINK 116 (2008) (concluding that cultural cognition influences judges but "only when empirical claims cannot be verified or falsified by objective data").
250. Cox v. Louisiana, 379 U.S. 536, 547 (1965) (footnote omitted).
251. Compare Edwards v. South Carolina, 372 U.S. 229, 234-36 (1963) (overturning based on "independent examination of the whole record" a trial court finding that civil rights protestors' behavior was "likely to produce violence," as required under state criminal breach-of-peace statute (quoting State v. Edwards, 123 S.E.2d 247, 249 (S.C. 1961)))
252. Compare Edwards v. South Carolina, 372 U.S. at 244 (Clark, J., dissenting) ("The imminence of that danger has been emphasized at every stage of this proceeding.... This record... shows no steps backward from a standard of 'clear and present danger.'").
253. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 784-90 (1994) (Scalia, J., concurring in the judgment in part and dissenting in part).
254. Madsen v. Women's Health Ctr., Inc., 512 U.S at 790.
255. Madsen v. Women's Health Ctr., Inc., 512 U.S. at 786.
256. Cox v. Louisiana, 379 U.S. 559, 585-89 (Clark, J., concurring and dissenting)
257. see also Cox v. Louisiana, 379 U.S. at 584 (Black, J., concurring and dissenting) ("Those who encourage minority groups to believe that the United States Constitution and federal laws give them a right to patrol and picket in the streets whenever they choose, in order to advance what they think to be a just and noble end, do no service to those minority groups, their cause, or their country." (emphasis added)).
258. See supra Part I.B.
259. See Kahan et al., supra note 5, at 884-85.
260. See Tom R. Tyler & Gregory Mitchell, Legitimacy and the Empowerment of Discretionary Legal Authority: The United States Supreme Court and Abortion Rights, 43 DUKE L.J. 703, 708 (1994).
261. See, e.g., Ann Coulter, The Abortion Exception: The Left v. the Constitution, NAT'L REV. ONLINE (Apr. 19, 2001), http://old.nationalreview.com/coulter/coulterprint041901.html (describing the Court's decisions upholding restrictions on abortion clinic demonstrations as the "abortion exception to the Flynt Amendment").
262. Richard L. Hasen, Crush Democracy but Save the Kittens, SLATE (Apr. 30, 2010), http://www.slate.com/id/2252536 (arguing that Justice Alito is guilty of an "indefensible double standard when it comes to free speech" because he purports to see "a sufficiently important government interest" in animal torture videos but is "blind to the strong governmental interests at play" in "prevent[ing] corruption" in corporate campaign donations).
263. See generally Balkin, supra note 135 (highlighting the importance of understanding status competition in society to achieving democratic ideals in constitutional interpretation).
264. Maher v. People, 10 Mich. 212, 222 (1862). Or perhaps not.
265. See Bruce D. Spencer, Estimating the Accuracy of Jury Verdicts, 4 J. EMPIRICAL LEGAL STUD. 305, 327 (2007) (finding judges in the study to incorrectly convict more often than juries, but to incorrectly acquit less often).
266. See, e.g., Batson v. Kentucky, 476 U.S. 79, 87 (1986) ("The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.").
267. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 758 (1994).
268. Cox v. Louisiana, 379 U.S. 559, 585 (1965) (Clark, J., concurring and dissenting).
269. At least some (likely all) of the Justices know that when the Court characterizes the behavior of such parties as unprotected conduct rather than protected speech, they are effectively saying that those citizens' moral vision is so utterly unworthy of respect that the law needn't afford them the dignity of being able to make it the basis of public appeals to others
270. Hill v. Colorado, 530 U.S. 703, 791-92 (2000) (Kennedy, J., dissenting).
271. See generally VALERIE P. HANS & NEIL VIDMAR, JUDGING THE JURY 248-49 (1986) (describing the role of the jury in promoting public acceptance of legal determinations).
272. See Kahan & Braman, supra note 5 (identifying cultural cognition in citizens' per-ceptions of facts in controversial self-defense cases as a source of high-profile political con-flict over particular verdicts).
273. See supra note 145.
274. See Note, The Right to Jury Trial Under Title VII of the Civil Rights Act of 1964, 37 U. CHI. L. REV. 167 (1969).
275. See, e.g., United States v. Unterburger, 97 F.3d 1413, 1415-16 (11th Cir. 1996) (finding a six-month maximum prison term and maximum $10,000 fine for a first offense under FACE was insufficiently severe to entitle defendant to jury trial)
276. United States v. Soderna, 82 F.3d 1370, 1378-79 (7th Cir. 1996) (same).
277. We use the concept of "debiasing" here without apology but subject to a proviso that we want to make emphatically clear. We reject the idea that the perceptions informed by cultural cognition are invariably unworthy of moral respect.
278. Cf. Cass R. Sunstein, Misfearing: A Reply, 119 HARV. L. REV. 1110 (2006). Such perceptions are different from judgments attributable to "base rate neglect," the "gambler's fallacy," "hindsight bias," and other manifestations of bounded rationality. They are not a consequence of limitations on our ability to process information pertinent to estimating the utility of one or another course of action; they are a reflection of values integral to our identities and our ties to others. In some settings, we might regard perceptions informed by cultural cognition as regrettable miscues that we should take precautions to avoid or correct. But in many contexts we will view them as furnishing reliable and unique insight into how we, as people of particular defining commitments, should orient ourselves toward some contingency: just as we are enabled to experience a valued form of shared identity by genuinely seeing things in the way a fan of this team, or as a parent of this child, characteristically would, so we reliably affirm our commitment to shared ways of life by attending appropriately to societal risks and opportunities that bear certain special meanings.
279. See Dan M. Kahan, Two Conceptions of Emotion in Risk Regulation, 156 U. PA. L. REV. 741, 760-65 (2008). In sum, we believe cultural cognition can be either a faculty of moral perception or a cognitive bias depending on whether its effect on judgment promotes or frustrates ends that are morally appropriate to the settings and roles we inhabit.
280. In the same spirit of pragmatic conjecture, Paul Secunda offers a thoughtful set of techniques for counteracting cultural cognition in Paul M. Secunda, Cognitive Illiberalism and Institutional Debiasing Strategies, 49 SAN DIEGO L. REV. (forthcoming 2012), available at http://ssrn.com/abstract=1777104.
281. See generally Sherman & Cohen, supra note 43, at 187-89.
282. See Geoffrey L. Cohen et al., When Beliefs Yield to Evidence: Reducing Biased Evaluation by Affirming the Self, 26 PERSONALITY & SOC. PSYCHOL. BULL. 1151, 1162-63 (2000).
283. David K. Sherman & Geoffrey L. Cohen, Accepting Threatening Information: Self- Affirmation and the Reduction of Defensive Biases, 11 CURRENT DIRECTIONS PSYCHOL. SCI. 119, 120-22 (2002).
284. See Amy McQueen & William M.P. Klein, Experimental Manipulations of Self- Affirmation: A Systematic Review, 5 SELF & IDENTITY 289, 295-97 (2006).
285. See generally JOHN GASTIL, POLITICAL COMMUNICATION AND DELIBERATION 60-62 (2008).
286. See generally David K. Sherman et al., Naïve Realism and Affirmative Action: Adversaries Are More Similar than They Think, 25 BASIC & APPLIED SOC. PSYCHOL. 275, 286-87 (2003).
287. See generally TIMUR KURAN, PRIVATE TRUTHS, PUBLIC LIES: THE SOCIAL CONSEQUENCES OF PREFERENCE FALSIFICATION (1996).
288. See Sherman et al., supra note 175, at 287.
289. See generally Harry T. Edwards & Michael A. Livermore, Pitfalls of Empirical Studies That Attempt to Understand the Factors Affecting Appellate Decisionmaking, 58 DUKE L.J. 1895, 1963-66 (2009).
290. See Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 U. CHI. L. REV. 511, 544-45 (2004).
291. See Secunda, supra note 148, at 142.
292. "Aporia" refers to a distinctive mode of argumentative engagement that recognizes-both in the substance and form of the analysis-the intrinsic complexity of the issue at hand.
293. See generally Nicholas Rescher, Aporetic Method in Philosophy, 41 REV. METAPHYSICS 283 (1987). For a more detailed defense of aporetic reasoning in judicial opinions.
294. see Kahan, Neutral Principles, supra note 5, at 59-66.
295. Lawyers might conceivably find this reasoning style less persuasive, or at least less aesthetically pleasing, than would ordinary citizens. But what sort of argumentation lawyers find compelling is no doubt shaped by what courts, by example, condition them to regard as such. Indeed, the likely impact of an idiom of judicial aporia on the legal professional culture (including the teaching of law) could magnify its contribution to reducing cultural status conflict in law and politics generally.
296. Tom Tyler's work on procedural justice also furnishes support for the hypothesis that an idiom of humility would enhance the legitimacy of constitutional decisionmaking. Tyler has amassed a large body of empirical data showing that the public's willingness to assent to and abide by legal directives is influenced much more by citizens' perceptions that they have been treated fairly than by their agreement with the substance of those directives.
297. See generally TOM R. TYLER & YUEN J. HUO, TRUST IN THE LAW: ENCOURAGING PUBLIC COOPERATION WITH THE POLICE AND COURTS 49-57 (2002).
298. TOM R. TYLER, WHY PEOPLE OBEY THE LAW (1990). In a study conducted with Gregory Mitchell, Tyler has found that citizens are more likely to see Supreme Court decisions as legitimate, in particular, when they believe the Justices have given careful and respectful attention to rejected arguments.
299. See Tyler & Mitchell, supra note 156, at 770-72, 774-77.
300. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 771 (1994).
301. Madsen v. Women's Health Ctr., Inc., 512 U.S. at 786 (Scalia, J., concurring in part and dissenting in part).
302. Scott v. Harris, 550 U.S. 372, 380 (2007).
303. Scott v. Harris, 550 U.S. at 378 n.5.
304. Scott v. Harris, 550 U.S. at 378 n.5
305. See 512 U.S. at 785 (Scalia, J., concurring in the judgment in part and dissenting in part) ("Today the ad hoc nullification machine [that drives the Court's abortion jurisprudence] claims its latest, greatest, and most surprising victim: the First Amendment.").
306. See Kahan et al., supra note 5, at 903-04.
307. But cf. T.W. ADORNO et al., THE AUTHORITARIAN PERSONALITY (1950) (proposing that right-wing values reflect a personality trait).
308. But cf. John T. Jost et al., Political Conservatism as Motivated Social Cognition, 129 PSYCHOL. BULL. 339 (2003) (suggesting that motivated reasoning is uniquely associated with conservative ideology).
309. See generally ALBERT O. HIRSCHMAN, THE PASSIONS AND THE INTERESTS: POLITICAL ARGUMENTS FOR CAPITALISM BEFORE ITS TRIUMPH (1977) (identifying the power of commercial institutions to pacify violent sectarian rivalries as one of the historical bases of the affinity between liberal political theory and classical liberal economics).