On the Volokh Conspiracy, now featured on the Washington Post website, Prof. Volokh applies his First Amendment expertise to a recent EEOC decision which ruled that a complaint from an African-American that a fellow worker who repeatedly wore a cap with the famous “Don’t Tread On Me” insignia from the Gadsden flag may have created a hostile work environment at the federal agency both worked for. The Equal Employment Opportunity Commission called for further investigation, including an interview of the cap-owner’s intention in wearing the symbol, concluding,
“In light of the ambiguity in the current meaning of this symbol, we find that Complainant’s claim must be investigated to determine the specific context in which C1 displayed the symbol in the workplace. In so finding, we are not prejudging the merits of Complainant’s complaint. Instead, we are precluding a procedural dismissal that would deprive us of evidence that would illuminate the meaning conveyed by C1’s display of the symbol.”
1. Now this is the slippery slope. Because murderous racist Dylan Roof posed with the Confederate flag, a tipping point was reached that resulted in the symbol and the flag being effectively and in some respects officially banned. The EEOC had already ruled the wearing a Confederate flag T-shirt constituted racial harassment,. Now the banning of historically significant symbols is threatening to spread to a flag that had no relationship to race whatsoever, in large part because of who has chosen to display it.
2. There is a whole website devoted to the Gadsden flag, from which we learn that…
- It first appeared in October of 1775, as the British were occupying Boston and the desperate Continental Army was dug in in nearby Cambridge, lacking sufficient arms and ammunition. In October, a merchant ship returning to Philadelphia from a voyage to England brought private letters to the Second Continental Congress informing it that England was sending two cargo ships to America loaded with arms and gunpowder for the British troops.
- Congress decided Washington’s troops’ plight required that those ships and their cargo be captured. It authorized the creation of a Continental Navy, then only four vessels, to take the ships. Congress also authorized the mustering of five companies of Marines. Some of the Marines enlisting that month in Philadelphia carried drums painted yellow, emblazoned with a rattlesnake with thirteen rattles, coiled and ready to strike, accompanied by the motto “Don’t Tread on Me.”
- That same December, a citizen calling himself “An American Guesser,” anonymously wrote to the Pennsylvania Journal, saying in part:
“I observed on one of the drums belonging to the marines now raising, there was painted a Rattle-Snake, with this modest motto under it, ‘Don’t tread on me.’ As I know it is the custom to have some device on the arms of every country, I supposed this may have been intended for the arms of America…the Rattle-Snake is found in no other quarter of the world besides America….She never begins an attack, nor, when once engaged, ever surrenders: She is therefore an emblem of magnanimity and true courage. … she never wounds ’till she has generously given notice, even to her enemy, and cautioned him against the danger of treading on her..
I confess I was wholly at a loss what to make of the rattles, ’till I went back and counted them and found them just thirteen, exactly the number of the Colonies united in America; and I recollected too that this was the only part of the Snake which increased in numbers. …Tis curious and amazing to observe how distinct and independent of each other the rattles of this animal are, and yet how firmly they are united together, so as never to be separated but by breaking them to pieces. One of those rattles singly, is incapable of producing sound, but the ringing of thirteen together, is sufficient to alarm the boldest man living.”
It is generally agreed that the writer was really Benjamin Franklin. Ben had a hand in the design of the flag, since the first use of a rattlesnake to represent the colonies was his own “Join or die” cartoon,
…published years earlier.
- Continental Colonel Christopher Gadsden of South Carolina was one of seven Continental Congress members on the Marine Committee responsible for overseeing that first naval mission. Before the departure of the four ships, Gadsden sent the newly appointed commander-in-chief of the Navy, Commodore Esek Hopkins, a yellow rattlesnake flag to serve as the personal standard of his flagship.
- The symbol and flag, therefore, are part of Revolutionary War history, and have nothing at all, nada, zip, zilch, zero, to do with slavery, race, or African Americans.
3. This therefore places this dispute firmly in the range of Ethics Alarms’ First Niggardly Principle (FNP), named for another case coming out of Washington DC, where an African-American found a supervisor’s use of the word “niggardly” (a good old English word meaning “stingy”) offensive, and the supervisor was fired, though later reinstated. The FNP:
“No one should be criticized or penalized because someone takes racial, ethnic, religious or other offense at their conduct or speech due to the ignorance, bias or misunderstanding by the offended party.”
4. Did the Gadsden cap’s owner realize his colleague was bothered by the symbol, regardless of the reason? If so,the SecondNiggardly Principle (SNP) comes into play…
“When an individual or group can accomplish its legitimate objectives without engaging in speech or conduct that will offend individuals whose basis for the supposed offense is emotional, mistaken or ignorant, but is not malicious and is based on well-established impulses of human nature, it is unethical to intentionally engage in such speech or conduct.”
5. Surely, the complaining individual must have mentioned that the cap was offensive to him. Why then would the cap’s owner continue to wear it? Whatever else it is, this incident is the result of people behaving disrespectfully, irresponsibly, and selfishly. Jerks, in other words.
6. Disrespectfully, irresponsibly, selfishly…and wastefully. This dumb dispute has dragged on since 2014. Over a cap. With a historic insignia on it. Based on an early American flag. Designed, in part, by Benjamin Franklin. Who was one of the first abolitionists. How many tax-dollars have been spent on this nonsense?
7. From the EEOC decision:
“Complainant stated that he found the cap to be racially offensive to African Americans because the flag was designed by Christopher Gadsden, a ‘slave trader & owner of slaves.'”
Well, this is res ipsa loquitur: the complainant is unreasonably and absurdly hyper-sensitive. Why isn’t that silly contention alone per se justification for the EEOC to tell him that he’s wasting everyone’s time, and needs to get psychological help? It was 1775. If being associated with a slaveholder is ground for finding things racially offensive, almost everything connected with the United States is racially offensive. (Yes, I know, that is a commonly held opinion, even by some in high places.) If an artist’s or designer’s non-art and non-design related conduct, opinions and activities are to be projected onto their creations in the most negative manner possible, then most art–music, drama, novels, architecture—will be judged offensive by somebody. No culture can survive this attitude. It is irresponsible for the government to tolerate it, never mind encourage it.
8. Also from the EEOC ruling:
Complainant maintains that the Gadsden Flag is a “historical indicator of white resentment against blacks stemming largely from the Tea Party.” He notes that the Vice President of the International Association of Black Professional Firefighters cited the Gadsden Flag as the equivalent of the Confederate Battle Flag when he successfully had it removed from a New Haven, Connecticut fire department flagpole.
Complainant is full of beans, to be blunt, and the EEOC should come right out and say so. The Tea Party was not about race. There were and are many racists among the Tea Party ranks and in leadership position, but the movement itself was only tarred with the racist label because anyone and any organization that opposes Barack Obama’s policies on their merits is routinely and strategically accused of racism as a means of political intimidation. Maybe the Complainant believed what he read and heard on MSNBC; that’s not the fault of the cap owner, Christopher Gadsden, or the flag. He needs to examine the echo chamber he has chosen to live in; he needs to read some history; he needs to stop looking for ways to feel like a victim.
9. Are we really going down the path of banning benign symbols because less than benign, or perceived as less than benign, or unfairly maligned as less than benign, or slandered as less than benign, individuals and groups publicly associate themselves with those symbols? It is a back-door method of censorship.
Can anyone honestly still argue that the Democratic Party does not have approach avoidance regarding the American flag, and on not understand why, in light of this case?
10. An insignia or symbol should be recognized according to what a reasonable, objective, informed person would take the symbol to mean, not according to what a confused, hypersensitive individual seeking victim status and benefits chooses to understand it to mean. Nor should an individual’s intent in using a benign symbol turn it into a malign symbol in the eyes of authorities. Employee X thinks Mickey Mouse is a racist and anti-Semitic symbol because Walt Disney was rumored to be anti-Semitic. Employee Y knows this, and X knows he knows, and Y wants to irritate X. Y wears a Mickey Mouse T-shirt to work, which X takes as harassment. Other workers also wear Mickey-labeled clothing, but since they don’t know about X’s hypersensitivity, X doesn’t find their garb offensive, just Y’s. How would the EEOC rule in such a case? I have no idea. If racial harassment can be found based on an individual wearing a historical symbol that is definitively not racially provocative based on an alleged victim’s mistaken belief that it is racially provocative, then this is, again, Bizarro World. Trying to make sense out of anything is futile.
11. The fact of an investigation is itself chilling free speech. If wearing a Gadsden flag symbol results in this kind of Big Brother hassling, who but martyrs, rebels and fools would dare chance such a display again, even if, in the end, the “victim” is told to grow up? Will any rattlesnake imagery be viewed as harassment, because of the connection to the flag? Any snake? A worm? A National Geographic T-shirt? A poster for “Anaconda”? How slippery is this slope? Who would dare to find out?
12. Would this EEOC find that a “Black Lives Matter” cap is harassing white employees? What do you think? I doubt it very much. That symbol is unequivocally racially provocative, and yes, I take anything related to that organization as intending to convey hostility to me. I think that conviction is reasonable, and I can back it up with facts, unlike the Gadsden flagophobe.
13. The entire episode is the reason why all messages of any kind, political, social, humorous, historical, should be banned in the workplace by responsible management. No exceptions—no ribbons, no pins, no T-shirts with pictures or words, nothing. There are too many people looking for ways to exercise dominion over others by claiming offense and seeking victim status. It’s too bad; in fact, it’s a tragedy. Americans should be able to be who they are and express their passions and beliefs without being subjected to this kind of oppressive scrutiny, judgment and risk.
14. Notes Volokh:
Let’s think about how this plays out in the workplace. Imagine that you are a reasonable employer. You don’t want to restrict employee speech any more than is necessary, but you also don’t want to face the risk of legal liability for allowing speech that the government might label “harassing.” An employee comes to you, complaining that a coworker’s wearing a “Don’t Tread on Me” cap — or having an “All Lives Matter” bumper sticker on a car parked in the employee lot, or “Stop Illegal Immigration” sign on the coworker’s cubicle wall — constitutes legally actionable “hostile environment harassment,” in violation of federal employment law. The employee claims that in “the specific context” (perhaps based on what has been in the news, or based on what other employees have been saying in lunchroom conversations), this speech is “racially tinged” or “racially insensitive.”
Would you feel pressured, by the risk of a lawsuit and of liability, into suppressing speech that expresses such viewpoints? Or would you say, “Nope, I’m not worried about the possibility of liability, I’ll let my employees keep talking”? (Again, the question isn’t what you may do as a matter of your own judgment about how you would control a private workplace; the question is whether the government is pressuring you to suppress speech that conveys certain viewpoints.)
Now let’s get to the 2016 election campaign. Say someone wears “Trump/Pence 2016” gear in the workplace, or displays a bumper sticker on his car in the work parking lot, or displays such a sign on his cubicle wall, or just says on some occasions that he’s voting for Trump. He doesn’t say any racial or religious slurs about Hispanics or Muslims, and doesn’t even express any anti-Hispanic or anti-Muslim views (though even such views, I think, should be protected by the First Amendment against the threat of government-imposed liability).
But in “context,” a coworker complains, such speech conveys a message “tinged” with racial or religious hostility, or is racially or religiously “insensitive.” The coworker threatens to sue. Again, say you are an employer facing such a threat. Would you feel pressured by the risk of liability to restrict the pro-Trump speech? (As before, the question isn’t whether you’d be inclined to do that yourself, whether from opposition to Trump, or a desire to avoid controversy that might harm morale; because the First Amendment doesn’t apply to private employers, private Internet service providers, private churches, private universities, private landlords, or others, they are not constitutionally constrained from restricting speech. The question is whether you would feel pressured by the government to impose such restrictions, through the threat of being forced to pay money in a civil lawsuit if you don’t impose them — and whether the government should be able to pressure such private organizations or individuals to restrict speech this way.)
….Workplace harassment law has become a content-based, viewpoint-based speech restriction, including on core political speech. A pretty serious First Amendment problem, I think…
15. So do I.