Federal agency: Wearing ‘Don’t Tread On Me’ could be racist, punishable

Federal agency: Wearing ‘Don’t Tread On Me’ could be racist, punishable

The EEOC says
Gadsden flag at Tea Party protest -- Flickr
The EEOC says "Don't Tread On Me" could be racist.
Gadsden flag at Tea Party protest — Flickr

We’ve all seen it — the trademark coiled snake with the caption, “Don’t Tread On Me.”  It has its roots in the Revolutionary War, but the Equal Employment Opportunity Commission is now saying that it could be seen as racial harassment and could be punished.

Mikael Thalen wrote:

The case began in 2014 at a private business when a black employee filed a complaint with the agency over a coworker who regularly wore a hat featuring the iconic snake and the “don’t tread on me” phrase.

The complaint alleged the flag was inherently racist because Christopher Gadsden, the flag’s designer, was “a slave trader & owner of slaves.” Even though the hat’s owner never made any racist comments according to the complaint, the black employee asserted the symbol is a “historical indicator of white resentment against blacks stemming largely from the Tea Party.”

The complainant also notes that the coworker continued wearing the hat even after being told to stop by his superiors.

Initially, the EEOC said the flag itself is not racist, but they’re still looking into it.

“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 [the coworker] displayed the symbol in the workplace,” the preliminary ruling said. “It is clear that the Gadsden Flag originated in the Revolutionary War in a non-racial context.”

So why go any further?  Perhaps the ruling — which is not publicly available because the proceedings are done in secret — gives us a clue.

“However,” the EEOC said, “whatever the historic origins and meaning of the symbol, it also has since been sometimes interpreted to convey racially-tinged messages in some contexts.”

The commission cited a 2014 shooting in which two white supremacists draped the Gadsden flag over the bodies of two murdered police officers, the Daily Caller said.

“Moreover, it is clear that the flag and its slogan have been used to express various non-racial sentiments, such as when it is used in the modern Tea Party political movement, guns rights activism, patriotic displays, and by the military,” the ruling adds.

If the EEOC rules against the phrase, Eugene Volokh warns, it could have serious consequences for free speech:

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,” he adds, “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?”

It’s getting scary…


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