Cognitive Illiberalism and the Speech-Conduct Distinction
posted by Dave Hoffman
The partisanship and bad faith of judges who disagree with us has never been more obvious, or more pernicious. For many, the most irritating personality flaw of judicial politicos (and their fellow-travelers) isn’t the bottom-line results of the opinions themselves, it is that judges refuse to acknowledge their own biases, though it’s evident that they aren’t neutral umpires, but rather players in the game. Indeed, almost every decision you read about these days comes accompanied by a reference to the political party of the appointing President – as if you needed the help! As Orin Kerr has brilliantly pointed out, “people who disagree with me are just arguing in bad faith.”
For the Cultural Cognition Project, the way that we talk about legal decisions – and decisionmakers – is a subject of study and concern. We decided to take a careful look at this topic — which we’ve previously touched on in work like Whose Eyes Are You Going To Believe. Our motivation was to investigate how constitutional norms requiring neutrality in fact finding interact with individuals’ tendencies to perceive facts and risks in ways congenial to their group identities. Building on Hastorf/Cantril’s social psychology classic, They Saw a Game: A Case Study, we’ve written a new piece about how motivated cognition can de-stabilize constitutional doctrine, render legal fact-finders blind to their own biases, and inflame the culture wars. Our resulting paper, “They Saw a Protest”: Cognitive Illiberalism and the Speech-Conduct Distinction, results from my collaboration with Dan Kahan, Don Braman, Danieli Evans, and Jeff Rachlinski. The paper is just up on SSRN, and I figured to jump-start the conversation by using this post to talk about our experimental approach and findings. (I think that Kahan is blogging on Balkinization later in the week about the normative upshot of Protest.)
Setup:
Protest’s experimental strategy was simple. We first collected information about the cultural worldviews of a nationally representative sample of subjects, organized through Polimetrix. We then described for these subjects the background of a lawsuit by political protestors against individual police officers and the police department. We showed the subjects a video that we described as the major piece of evidence in the case, and which both parties advanced in support of their point of view. In one condition of the experiment, the protestors in the video were described as “members of a group that opposes permitting doctors and nurses to perform abortions at the request of pregnant women” [the abortion condition]; in another, as “members of a group that opposes the ban on allowing openly gay and lesbian citizens to join the military” [the recruitment condition]. The protestors’ complaint, the vignette stated, alleged that the police had “violated their rights by ordering them to end their protest at” either “an abortion clinic” or “a college campus recruitment center the day the Army was scheduled to interview students who were considering enlisting.” Subjects were told that the defendants claimed halting the protest was justified by a law entitled the “Freedom to Exercise Reproductive Rights Law,” in the abortion condition, or the “Freedom to Serve with Honor Law,” in recruitment condition. That law made it illegal for “any person to intentionally (1) interfere with, (2) obstruct, (3) intimidate, or (4) threaten any person who is seeking to enter, exit, or remain lawfully on premises of” either “any hospital or medical clinic that is licensed to perform abortions” or “any facility in which the U.S. military is engaged in recruitment activity.” We told the subjects (acting as jurors) that they were to decide a series of factual queries about this standard, and then tell us whether they thought the police were liable. [If you like, check out the abortion and recruitment videos. You will observe, if you are a HLS graduate, some familiar sites. But come back!]
We had several hypotheses, which essentially predicted that subjects’ worldviews would be various threatened and affirmed by the underlying activity (recruitment, abortion) and behavior antagonistic to it. As per usual with our work, we employed scales that characterized the worldviews along two dimensions. The first, Hierarchy-Egalitarianism, measures the subjects’ orientations toward social orderings that either feature or eschew stratified roles and forms of authority. The second, Individualism-Communitarianism, measures their orientations toward orderings that emphasize individual autonomy and self-sufficiency, on the one hand, and those that emphasize collective responsibilities and prerogatives, on the other. Combining the two scales generates four sets of worldviews—“hierarchy individualism,” “hierarchy communitarianism,” “egalitarian individualism” and “egalitarian communitarianism,” to which individuals’ affinities can be measured with continuous worldview scores. Two major hypotheses were that (1) egalitarian individualist subjects would form anti-demonstrator fact perceptions in the abortion condition but pro-demonstrator perceptions in the recruitment center condition; and (2) hierarchical and communitarian subjects, by contrast, would form pro-demonstrator fact perceptions in the abortion condition but anti-demonstrator perceptions in the recruitment center condition.
Results:
Main Effects
Subjects were closely divided in both conditions. Considered apart from the experimental manipulation, moreover, cultural worldviews likewise appear to have no meaningful effect on reactions to the video. There was no evidence, then, that being inclined either toward hierarchy or egalitarianism, toward individualism or communitarianism, or toward any combination of the two disposes individuals toward pro- or anti-demonstrator reactions irrespective of what subjects believed about the political cause of the demonstrators.
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.
However, when we control for condition, we find dramatic differences. In the abortion-clinic condition, 70% of the Hierarchical Communitarians found that the police had violated the demonstrators’ rights. Yet in the recruitment-center condition, only 16% did. Matters were the other way around for Egalitarian Individualists: 76% of them concluded that the police had violated the rights of the protestors in the military-recruitment condition, yet only 28% of them took that position in the abortion-clinic condition. We can generalize to create scales reflecting our subjects’ responses to multiple fact and outcome items into a single “pro demonstrator” or “pro police” orientation. The figure to the left plots the relationship between cultural orientations and judgments.
As you can see (perhaps more clearly if you click on the figure), the estimated scores for Egalitarian Individualists and for Hierarchical Communitarians scales flip.It is also evident from the estimates that Egalitarian Communitarians became significantly more pro-demonstrator,and Hierarchical Individualists significantly more anti-demonstrator, in the recruitment-center condition as opposed to the abortion-center condition. Whereas the difference between Egalitarian Individualists and Hierarchical Communitarians is significant in both conditions, the difference between Egalitarian Communitarians and Hierarchical Individualists is significant only in the recruitment center condition.
As one would expect, these differences in case-disposition judgments are mirrored in the subjects’ responses to the fact-perception items. Whereas only 39% of the Hierarchical Communitarians perceived that the protestors were blocking the pedestrians in the abortion-clinic condition, for example, 74% of them saw blocking in the recruitment-center condition. Only 45% of Egalitarian Individualists, in contrast, saw blocking in the recruitment-center condition, whereas in the recruitment-center condition 76% of them did. Fully 83% of Hierarchical Individualists saw blocking in the military recruitment-center condition, up from 62% in the abortion-clinic condition; a 56% majority of Egalitarian Communitarians saw blocking in that condition, yet only 35% saw such conduct in the recruitment-center condition. Responses on other items—such as whether the protestors “screamed in the face” of pedestrians and whether the protestors intended only to persuade or instead to threaten—displayed similar patterns.
In summary, motivated cognition not only polarized individuals of diverse cultural outlooks but also generated contradictions in what subjects of a shared orientation reported seeing. Relatively hierarchical and communitarian subjects rejected the proposition, credited by relatively egalitarian and individualistic ones, that demonstrators were blocking access to a facility represented to be an abortion clinic; yet when hierarchical communitarians understood the demonstrators to be objecting to the exclusion of openly gay and lesbian citizens from the military, they agreed the protestors were blocking access to the same building—a claim that egalitarian individualists now overwhelmingly dismissed. Subjects subscribing to a hierarchical individualistic outlook as well as those adhering to an egalitarian communitarian one exhibited similar shifts in perception.
If you want to know how we think these experimental findings influence constitutional fact-finding, and judicial rhetoric, you’ll have to either read the paper, read Kahan on Balkinization, or come back for more here later in the week.
February 7, 2011 at 6:00 pm
Posted in: Articles and Books, Behavioral Law and Economics, Civil Procedure, Civil Rights, Law and Psychology, Law School (Scholarship), Psychology and Behavior, Sociology of Law
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Responses (1)
Charles Lowery - August 29, 2012 at 12:49 pm
This is a hugely important subject. One of the reasons I retired from trial law after 22 years was frustration due to judicial tendancy to first determine an outcome he felt appropriate, then work backwards to make it apparently fit the legislation. In a newspaper interview after retirement, a judge was asked if he found difficult applying law he disagreed with. He responded that the law was so elaborate that a judge could always manage to do what he felt was right.
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