- The Washington Times - Thursday, August 24, 2000

Americans enjoy the right to freedom of speech, and that includes speech using symbols as well as words. So if you want to fly a Chinese flag, an Iraqi flag, a Cuban flag, a North Korean flag, a Union Jack or a Jolly Roger, the government may not stop you, even if it finds the flag offensive or politically subversive. Just as you may say what you want, you may display any flag you want.

As long as it's not a Confederate flag.

I'm not talking here about the decision of South Carolina to stop flying the rebel battle flag above the capitol, a sensible step taken in response to well-justified protests by the NAACP. Even the NAACP, as far as I know, has never proposed to make it illegal for private citizens to make use of this Southern symbol. But now federal civil rights laws may end up indirectly doing something — outlawing private displays of the flag — that the federal government could never do directly.

The evidence comes from a case involving an Alcoa aluminum plant in Badin, N.C., where black employees are suing the company for alleged racial harassment and discrimination and asking for some $10 million in damages. After the suit was filed, reports the Wall Street Journal, one of the workers made a list of all the vehicles in the company parking lot adorned with Confederate flag bumper stickers or decals. He then sent it to his lawyer as evidence that Alcoa maintained a “hostile working environment,” in violation of federal law.

The corporation quickly decided that Confederate flags in any form could not be allowed anywhere on company property. The ban went so far as to forbid the special license plates issued by the state to motorists whose ancestors served in the Confederate army.

Alcoa officials told the Journal that the ban had absolutely nothing to do with the lawsuit, a claim that should be taken every bit as seriously as the Confederate Air Force. When someone sues an employer for $10 million over supposed racial slights, the employer would be crazy not to bend over backwards to show its sensitivity to minority concerns. Given the state of civil rights law, companies have powerful incentives to suppress any speech that some employees may not like.

That's because, these days, racial and sexual discrimination don't have to involve anything as blatant as refusing to hire blacks or underpaying women. All it takes to violate the law these days is allowing a “hostile or abusive work environment.” So if someone feels uncomfortable because of what another person says or displays, the company can find itself hauled into court and ordered to write a check with lots of zeroes.

So a lot of people have found themselves forced to surrender their First Amendment rights. UCLA law professor Eugene Volokh notes that one court found an employer guilty of religious harassment because it put Christian messages on paychecks. At another company, a employee who put pictures of the Ayatollah Khomeini in her own cubicle was ruled to have committed “national-origin harassment” of an Iranian co-worker.

Off-color jokes can trigger liability, says Volokh, even if the jokes are not insulting to either sex. The University of Nebraska ordered a graduate student to get rid of a desk photo of his wife in a swimsuit because an employee complained that it amounted to sexual harassment.

Given decisions like these, it's perfectly reasonable to treat a rebel flag as a form of racial discrimination — and perfectly reasonable for an employer to decide it's got to go. “Harassment law,” writes Volokh, “potentially burdens any workplace speech that's offensive to at least one person in the workplace based on that person's race, religion, sex, national origin, age, disability, military membership or veteran status or, in some jurisdictions, sexual orientation, military status, political affiliation, criminal record, occupation, citizenship status, tobacco use outside work, Appalachian origin, receipt of public assistance, dishonorable discharge from the military, or personal appearance.”

If private employers were doing this purely of their own volition, it would be bad enough. It's much worse when they are acting under the dire threat of being sued, held liable and publicly branded as hostile to some protected group. Under the First Amendment, the government is not supposed to be able to decide which ideas may be expressed and which may not. But through harassment laws, it is telling employers they may not allow views that some people resent.

If that's going to be the standard of what people can say, we may as well all be fitted for muzzles. Supreme Court Justice Oliver Wendell Holmes Jr. once wrote that liberty means not just “free thought for those who agree with us but freedom for the thought we hate.” Our harassment laws say: Not anymore, it doesn't.

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