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.