No Truce With Kings

This article by Noah Feldman appears at Bloomberg.com. The EEOC complaint he describes is practically a reductio ad absurdum of political correctness, IMO. Where does this stuff end?

When a Flag Crosses the Line to Harassment

Is it racial harassment in the workplace to display the yellow “Don’t tread on me” flag? The Equal Employment Opportunity Commission says that it could be, depending on the context. The commission acknowledged that the Gadsden flag, which dates back to the era of the American Revolution, did not have racist origins. But it called for a careful investigation to see whether recent uses of the flag have been sufficiently “racially tinged” that it could count as harassment.

A strong argument can be mounted that this EEOC decision is a threat to the First Amendment — and that’s exactly the argument made by UCLA law professor Eugene Volokh on his blog, the Volokh Conspiracy, in reporting on the commission decision. But on closer examination, I think the commission got this one right. When it comes to the meaning of symbols, social context is everything. Even symbols that have no direct historical connection to racism can change meaning over time. And if we’re going to have laws against workplace harassment, we have to prohibit all harassing behavior — including harassment that’s overtly political.

The Gadsden flag […] is said to have been designed or at least promulgated by Christopher Gadsden, a politician and patriot from Charleston, South Carolina. He was a member of the Marine committee of the Continental Congress; the newly formed Marines were reported to have used some version of the image and logo on their drums in 1775. […]

Gadsden made his money as a merchant in South Carolina, and both owned and sold slaves. As it happens, in common with other slaveholding members of the founding generation, he also sometimes spoke against slavery. In a 1766 speech, he referred to slavery as a “crime,” while observing that “slavery begets slavery” and predicting that South Carolina would see more of it.

But there seems to be no dispute that the flag, as used by the Marines and others in the Revolutionary War, was a message to King George, and had nothing to do with slavery or racism per se.

In his complaint to the EEOC, the anonymous writer objected to a co-worker wearing a hat bearing the flag “because the flag was designed by Christopher Gadsden, a ‘slave trader & owner of slaves.’”

On its own, that’s a pretty weak argument. The fact that a slave owner created a symbol doesn’t mean that symbol is racist. The Constitution itself, after all, was designed in large part by slave owners.

Needless to say, I disagree with Feldman’s conclusion (my emphasis above) and I agree with Eugene Volokh’s opinion; Volokh’s post is worth reading.

If we accept Feldman’s conclusion, where’s the stopping point? If the goal is to eradicate any historical reference that over time may be seen as racist in some social context, then there’s no limit to it. Will somebody, somewhere, someday be offended by something innocuous? It’s a sure bet.

Now… who wants decisions like those made by EEOC bureaucrats in Mr. Trump’s administration? Raise your hands.

My suspicion is that maybe the complainer associates the Gadsden flag with the Tea Party and this is really an attack on what the complainer regards as offensive political speech. See this story from 2013. In that case, the EEOC’s decision is even more troubling.