It is a sad and stunning commentary on the state of liberty in 21st-century America that the original symbol of independence from an oppressive government has become one of the latest targets of an oppressive government.
Last year, TFPP’s Robert Gehl reported that the Gadsden Flag — the classic Revolutionary War banner featuring a snake against a yellow backdrop with the slogan “DON’T TREAD ON ME” — became the subject of an Equal Employment Opportunity Commission complaint when a black employee at a company accused his coworker of racial discrimination for doing nothing more than wearing a baseball cap with the flag:
Here’s an excerpt of the complaint heard by the EEOC, courtesy The Washington Post’s Volokh Conspiracy:
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.
After a thorough review of the record, it is clear that the Gadsden Flag originated in the Revolutionary War in a non-racial context. 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.
However, whatever the historic origins and meaning of the symbol, it also has since been sometimes interpreted to convey racially-tinged messages in some contexts.
So they admitted that the flag’s origin had nothing to do with racism and that it’s a popular slogan for a variety of non-racial viewpoints…but wearing it is racially insensitive anyway. Amazing.
As Robert wrote at the time:
What’s interesting about this is that there’s no evidence presented that the cap wearer ever said or did anything racist to “Sheldon.” All he did was wear the baseball cap. So the only association between racism and that symbol is in Sheldon’s mind. He thinks it’s racist. It doesn’t matter whether it is or not.
Apparently now, you can be called a racist and your speech censored not only if you’re actually a racist, but if anybody simply thinks you are.
So Volokh points out that even though the EEOC didn’t rule either way on this issue, the chilling effect is tremendous. Imagine a co-worker wears “Trump/Pence 2016” gear into the workplace, or has a bumper sticker on their car. Another co-worker claims it’s “racist” or “offensive.” What does the employer do, knowing there’s a possibility they could be charged with creating a “hostile work environment”? Do they let the bumper sticker stay there or do they tell the employee to take it off?
But that’s not the last we’re hearing about legal challenges to a symbol of the American revolution. Breitbart reports that the US Supreme Court will be taking up the issue in Minnesota Voters Alliance v. Mansky, No. 16-1435. It’s slated to be heard “early” in 2018, with a ruling slated to arrive no later than the end of June 2018.
The third case is Minnesota Voters Alliance v. Mansky. A Minnesota man, Andrew Cilek, entered his polling location in 2010 to vote. He was wearing a T-shirt displaying the Gadsden flag (“Don’t tread on me” with a rattlesnake—popular during the American Revolution in the 1770s). He was also wearing a button that said, “Please ID Me,” supporting voter-identification laws.
Minnesota law forbids voters wearing anything at a polling location that contains a political message. While the Supreme Court in 1992 upheld “buffer zone” laws wherein people could not actively campaign at a polling location or try to persuade voters within a certain number of feet from the ballot box, the justices have never said that these buffer zones can exclude every message that includes a political element.
On the one hand, prohibiting political messages at polling places is a longstanding and understandable practice (though one can’t help but wonder how consistently it’s enforced). On the other hand, since when does a symbol whose only inherent message is American independence from Great Britain constitute partisan advocacy of Republican over Democrat, conservative over liberal? Couldn’t the logic be extended to prohibiting anyone from wearing the Stars and Stripes to vote? If it’s now right-wing just because right-wingers like it, does that mean one side could co-opt, say, “Support our Troops” ribbons?
Let us know how you think SCOTUS should rule — and how you think it will rule — in the comments below.