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Kim Anne Savelson: Let's begin by talking a little about the
foreword you wrote for the Harvard Law Review last year, in which
you discussed content neutrality, neutral principles, and what these have
to do with color blindness. Could you explain these terms, or concepts,
a bit?
Morton J. Horwitz: The first point is to see the way neutral
principles work. Neutral principles are always an attempt to create a formal
relationship that leaves out the power element in the real relationships.
The best example in legal history is the idea of freedom of contract, in
which the neutral position was said to be not looking at who the parties
were, even though they were a large corporation on one side, and an individual
laborer on the other. The Supreme Court established freedom of contract
as the basis for interpreting the Fourteenth Amendment, on the notion that
to look at the actual economic power or coercive power of one or the other
parties was not neutral. Neutrality required that you eliminate the power
element and think of it only in terms of a formal relationship.
Color blindness has the same intellectual function that neutrality had
in terms of economic power. Color blindness wishes to eliminate the history
of power relations between the races, and assess how we feel about any
particular policy, as if today can be a starting point, without looking
at how we got here today. As if we don't talk about the inequalities of
entitlements that are given to one or another race, because to do so would
be non–color blind. It seems to be quite the opposite, that unless you
look at the history of how you got to the particular starting point today,
you can't begin to assess what is in truth a color-blind situation, a situation
that eliminates the prior benefits, illicit benefits that people got on
the basis of race.
What I sought to do in the foreword was to draw an analogy between the
nineteenth-century Lochner court's wish to achieve neutrality by ignoring
economic power and the contemporary Supreme Court led by Justice Scalia,
their wish to talk about color blindness without taking account of the
actual real-life differences in wealth and power between the races in America
today.
KAS: Yes—you especially focused on the court's First Amendment
decisions, and called contemporary color blindness the "Lochnerization
of the First Amendment," which is a distinct criticism.
MJH: Right.
KAS: Could you describe how the refusal to acknowledge real-life
differences is a problem playing itself out in the First Amendment debates
now?
MJH: Well, the way theissue plays itself out immediately in today's
First Amendment debates is over the question of so-called hate speech.
In the area of hate speech, Justice Scalia, for example, maintained that
burning a cross on a black family's lawn was speech, and since we can't
look at the content of the speech, since we must be neutral and color blind
in looking at the content of the speech, the fact that a black family would
be offended by this act was irrelevant, even though it was so-called hate
speech. So the idea there was that the color-blind version of the First
Amendment guarantee of freedom of speech meant that you could not look
at the content of the speech.
Now he wouldn't say that about threats to the president of the United
States. He had to put that in a separate category of speech. There are
many exceptions to the rule that he couldn't handle. But the basic point,
it seems to me, is that defining the notion that there is such a thing
as content-neutral First Amendment interpretations that eliminate any racial
character, any racial content, is giving lie to the notion that you can
have a First Amendment that is content neutral. It's not possible to do
that.
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