University of Miami Race & Social Justice Law Review

Document Type



Our racial divide has always been a national security threat. An early observer of our American project, Alexis de Tocqueville, wrote about this threat to our future union in “Democracy in America,” learned by merely travelling the young nation thirty years before our Civil War.1 Despite generations of societal and legal evolution, our nation has not overcome the wounds and disabilities that our racial divide left behind — now ripe for modern security threats. In 2019, the United States Senate Select Committee on Intelligence released Volume II of their years long investigation into Russian Active Measures of interference with our elections and democracy, referring to the effort as an “information warfare campaign” designed to stoke “societal division in the United States.”2 Our racial divide was the fault line under attack in the Russian Active Measures campaign. The Senate’s “integrated” recommendations avoided the critical issue of proven vulnerability through our racial fault lines and mainly offered that social media companies, citizens, and the Executive Branch should simply self-regulate in face of this national security threat. More critically, the Senate recommendations mandated that any “approach” to guard against this threat “must be rooted in protecting democratic values, including the freedom of speech.” The weak Senate recommendations, coupled with the unprecedented siege on the Capitol on January 6, 2021, require an urgent review of the ways that our laws have disabled us from properly analyzing the impact of race as a legal matter. Three landmark cases, Brandenburg v. Ohio, Washington v. Davis, and McCleskey v. Kemp, are all post-Civil Rights Movement cases that opened America up to assaultive speech, attempting to usher in race-neutrality and a “law and economics” framework. These cases made our racial lines a bit deeper, leaving us with scar tissue exposed to the world, rather than sound and protective case law. Indeed, the landmark Brandenburg opinion supports this argument.4 Clarence Brandenburg, who spoke his works a few days after the Civil Rights Bill of 1964 was passed in the Senate, threatened to march the Klan to Mississippi and St. Augustine, Florida. There was nothing random about those locations. Brandenburg spoke a few days after three young Civil Rights workers were murdered by the Ku Klux Klan in the infamous Mississippi Burning case, their bodies were still missing when he spoke. Then-President Lyndon B. Johnson sent the F.B.I. and troops to Mississippi as a response — the murders gripped the nation and our government. Clarence Brandenburg also spoke while widespread violence engulfed St. Augustine, Florida as Dr. Martin Luther King, Jr. was spending the month in St. Augustine to desegregate the city — violence was ongoing and rampant. Yet this context was sanitized in a hastily written per curium opinion originally authored by Abe Fortas as he was forced to resign over financial improprieties. Adding to this uniquely odd circumstance, no opinions were released on Brandenburg in the state courts below. This acontextual, ahistorical opinion, stripped of the power of judicial speech, is ironically our landmark Free Speech decision. The Davis and McCleskey opinions warrant review as the Senate was not short on data, facts, or intent in the Russian Active Measures campaign report, yet somehow the data on race was not acted upon nor appeared in the recommendations. These cases frame why when our racial division is at the forefront of an issue factually, it is disabled as a legal matter. Demanding attention to where the law has failed us on matters of race is fiercely important now as the relevant matters of national security uncovered by the Senate remained unanswered legally. Indeed, the January 6, 2021 “Save America” rally is eerily reminiscent of Clarence Brandenburg’s exhortation to “Save America” in his Klan speech in 1964. The studied blindness of racism and racial harms in law has not solved our problems, rather, it has left us more vulnerable than ever.