Revengence Taken: Russian Active Measures and our Entrenched Racial Divide

• Main Author: Berhan, Erin
• Format: Text
• Language: unknown
• Published: University of Miami School of Law Institutional Repository 2022
• Subjects: National Security; Russia; United States; Racism; Free Speech; Racial Division; Law and Race; Law and Society; SCAR
• Online Access: https://repository.law.miami.edu/umrsjlr/vol12/iss1/6; https://repository.law.miami.edu/context/umrsjlr/article/1139/viewcontent/UMRSJLR_vol_12_no_1_rev_63_114_Berhan_Revengence_Taken.pdf

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 ...