MJH: I have to emphasize that the famous hate-speech case, RAV. v. City of St. Paul, is not a case that most people would even think of as bounded by the arguments over hate speech. This, let us remember, was a case in which white hoodlums trespassed onto the land of a black family to put a burning cross there. So this case didn't even need to be thought about in terms of hate speech. And then it was only by the most abstract version of communicative speech that the burning cross on the black family's lawn came to be thought of as speech. 

So there are a number of abstract intellectual leaps here that one must make to even bring this case within what most people think of as the difficult issues that surround hate speech or sexual harassment or cases that some may regard as closer cases. 

KAS: How would you describe the kind of approach that would take the history of race into account when a hate-speech case came up? The kind of approach that, rather than applying content-neutral principles, would look at the content? 

MJH: Substance, substantive. Form versus substance. Procedure versus substance. Process versus substance. 

KAS: What does a process-oriented approach mean? 

MJH: Let's talk about two procedures for repossessing a car. I buy a car on an installment loan. If I don't pay, the automobile company can repossess the car. So the procedures for repossessing a car range all the way from fairly formal procedures, where you have go to court and prove that the person didn't pay, all the way to cases where you can just come in the middle of the night and take the car back, or break into a person's garage and take the car back. or put a boot on the car or various other things. 

So as we discuss "which procedure should we follow?" it seems to me it's misleading to distinguish process from substance unless we acknowledge that we're talking about creditor's remedies against debtors, and that creditors and debtors tend to come from different parts of the social order, and therefore we should understand that there's no neutral process in this matter. To some extent it is a zero-sum game between debtors and creditors. There is no neutral procedure in an automobile repossession. That's an illustration. 

KAS: So result oriented— 

MJH: Result oriented would be the opposite of process oriented. But result oriented has a bad name in our linguistic culture as people who are just lawless and don't care about rules. 

KAS: It strikes me that result oriented—maybe only the language—seems to apply to those of us who support the idea of affirmative action. We support a program that wants results. Could you talk about affirmative action as a larger issue that couldn't really be seen in all of its complexity in the voter rights cases? 

MJH: There are many people who believe that while it's inappropriate for courts to engage in affirmative action, it's completely appropriate for legislatures to engage in affirmative action. That is, legislatures can determine those cases in which reparations are necessary, and those cases in which they think it's not. The voting rights cases are that kind of case, that is, a case in which Congress has affirmatively declared that race should be taken into account in creating congressional districts. So one would think that the legal status of racially drawn congressional districts should be very much stronger than the typical court-ordered affirmative action case. And even though Justice O'Connor at some point seemed to concede that, at other points she seemed to just ignore that. 

KAS: She seemed to ignore history, and affirmative action is— theoretically it's about taking history into account.  

MJH: It's about taking history into account. It's called reparations. It's called "restitution" in the law. It is called, "you have taken what is rightfully mine and you have appropriated it, and morality says you should restore it." When it's between two individuals we understand that, even over time. It's only when it's between groups or classes of individuals that American society, not oriented toward groups, not oriented toward supra-individualistic entities, begins to have trouble conceiving of the underlying moral principle. But it's still the same principle of restitution in the law. It's the principle of the Nazis providing reparations for the Jews. It's the general principles of restoring one's entitlement. And there's no question that blacks as a group have been deprived of their human entitlements for 200 years in America. The problem then is how do we operationalize that so that it doesn't totally render it a question of group rights, and allows for individual dessert to play its justifiable role in the social order. That's the problem. But for people to deny that there's a strong pull of restitution in the history of black people in America, it seems to me, is just to ignore the obvious principles of morality. 

 KAS: Let's end on that. 

Kim Anne Savelson