By Dr. Ken Broda Bahm:
The pandemic has been a lesson in a lot of things, including the challenges of using persuasion to build common agreement. In some ways, the past few years serve as a social science laboratory that litigators can learn from. For example, believe it or not, early on there was an issue that Republicans and Democrats nearly agreed on: 91% of Democrats and 85% of Republicans agreed on staying home as much as possible to stop the spread of the virus. That was in April of 2020, and it changed quickly. The six-point gap became a forty point gap by June of the same year, as the public health response became politicized and polarized. As a result, taking protective measures, and mask-wearing in particular, became a poster child for insurmountable disagreement.
But some level of persuasion is still possible. A recent study (Luttrell & Trentadue, 2023) conducted mid-pandemic adds to a line of research identifying distinctions in moral emphasis as a key part of the division, but also a partial way to bridge that difference. The research focuses on the idea of persuasive message matching or moral reframing — the principle that better persuasion occurs when you account for the likely moral foundations of your audience and try to frame your arguments in those terms. In this post, I’ll describe that recent research and provide an example of how it could apply in litigation.
What Is Moral Reframing?
The research proceeds from the observation that there are five main moral foundations, or base principles we use to structure our own personal emphasis on what is right and wrong. While most of us, to a large degree, emphasize them all, it turns out that liberals give greater emphasis to two “individualizing” foundations – care, and fairness—while conservatives giver greater emphasis to the other three “binding” foundations – authority, loyalty, and purity. The resulting differences, the authors observe, mean that “these groups often talk past each other, appealing to moral values that the other group does not prioritize.”
In this study, the researchers tested whether moral reframing would or would not work in promoting mask wearing across the political divide. Back during the height of the Omicron variant, they tested two versions of a health message encouraging mask wearing – one version based on fairness and care, and the other version based on loyalty and purity. The study found that morally reframing the message worked, but only to a degree: “Although results largely supported the efficacy of tailored moral appeals for liberal audiences, they did not support corresponding effects for conservative audiences.” In other words, Democrats were more persuaded by the “morality matched” message, but for Republicans, the control condition, the loyalty-purity oriented message, and the care-fairness appeals for mask-wearing all had about the same levels of effectiveness…which is to say, not a lot of effectiveness.
This could be a sign liberals are more open-minded and hence changeable, or it could be a sign that conservatives were simply too dug-in on anti-mask views. Other research cited in the study has shown that moral framing does work for conservatives on issues that are also divisive, such as environmentalism and universal health care. But it is a reminder that reframing isn’t going to work equally for all audiences.
A Litigation Example
Just to provide a quick illustration of what moral reframing might mean in a trial context, consider a case venued in a liberal area (let’s say, Seattle or San Francisco, or many other major cities) where the defense needs to make a case that liberals could be primed to reject. For example, let’s assume that they need to argue that a large and faceless corporation should be trusted with the private information harvested from customers. Obviously, that company faces an uphill battle. But they can improve their chances by trying to align the argument with the moral foundations that their audience is likely to care the most about.
Reframing Around Care
The moral foundation of “care” or harm avoidance is based on Valuing kindness and the protection of the vulnerable. So language highlighting those foundations might sound like this:
The company takes extra care, and follows not only all of the relevant laws – including the stringent protections of HIPAA, but also follows its own internal policies that exceed those regulations. Why? Because the company wants to protect both its customers and its own good name.
The bottom line, however, is that this information – when treated carefully – does a great deal of good. The information from the marketplace and from customers helps us reach more people, including those who may be the most vulnerable and the most in need. So at the end of the day, it is not about ignoring information, it is about handling it carefully and using it to improve the lives of many, and that is what the company does.
Reframing Around Fairness
The moral foundation of “fairness” or reciprocity is based on valuing equal treatment and justice. So a reframed appeal based on that foundation could sound like this”
I get it: In 2023, our information is everywhere, and we may not like how transparent society has become. And the way to deal with that is to develop a fair set of rules, apply those rules to everyone equally, and to make sure that everyone plays by that same set of rules.
That is fair and it also cuts both ways. We have a right to expect a great deal from the companies that handle that information, and we have a right to expect them to play by the rules. But when they do play by those rules, they also have a right to be allowed to do their work and to use that information. It is absolutely fair to expect the company in this case to play by the rules, and the company absolutely does.
The research discussed in this post shows that appeals like this are audience-specific. It will work for some, and not for others. The study also includes evidence of a boomerang effect: Using a moral foundation that your audience does not prioritize can also end up worsening your chances at persuasion. So, the critical rules are to know your audience, and whenever possible, test your message.
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Other Posts on Morality in Legal Argument:
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Luttrell, A., & Trentadue, J. T. (2023). Advocating for Mask-Wearing Across the Aisle: Applying Moral Reframing in Health Communication. Health Communication, 1-13.