Equal Protection versus Free Speech Rights: When Gains Loom Larger than Losses

This paper examines the tension between equal protection and free speech in the hate speech context through a prospect theory lens. Two hundred and fifty‐four participants recruited through Amazon's Mechanical Turk read a First Amendment free speech or Fourteenth Amendment equal protection argument framed to endorse the protections gained by each right, the losses avoided by each right, or the security provided by each right. Results showed gain‐framing was more persuasive than loss‐framing. Participant race and constitutional principle influenced punishment invoked for cross burning but not destruction of property or trespassing. Participants who received a positive framed equal protection argument believed the target would experience stronger negative emotions, particularly under low intimidation. Furthermore, participants receiving a positive frame speech argument believed the target would be less willing to support suppression. Unlike previous research, which suggests an equal protection principle default, this study demonstrated an impact of framed statements on decisions.Copyright © 2016 John Wiley & Sons, Ltd.