One man's pride in and loyalty to his Confederate flag has landed him in a free-speech fight with his employer, who doesn't want it displayed on company property.
We've had the discussion about gun in cars on company property. This appears to closely parallel the issues raised there.
For some, the Confederate flag is a sign of heritage--for others, a symbol of oppression. What if it's something else--a different message?
What if that message drives away customers?
Is the employer infringing on free speech? Must an employee alienating customers be tolerated?
How is this different from the guns in parking lot issue? How is it the same?
I hope you decide to weigh in on this. If you do, it should provide for lively discussion.
37 comments:
A couple of differences I can see are that the gun in the car is not visible to the customers, and could be necessary to saves lives.
E.I. DuPont's Richmond, Va., plant doesn't allow Confederate battle flags or flag decals or stickers on vehicles, toolboxes or other items. Consequently, they get 10 to 20 protesters waving full-size flags at the busy intersection at the main gate about every six weeks.
I don't think a vehicle bearing such a symbol means the company endorses it, any more than it endorses Joe's Bait Shack because of the bumper sticker that says you can get gas, worms and crabs there.
To me, that flag means states' rights, the constitutional ability to secede from a tyrannical union. Had I lived then, I would have been for abolishing slavery. Lots of southerners were, and it was coming soon anyway with the rise of agricultural machines. Those who object to that flag do not know their history.
People get around the restriction by using the less-familiar Stars and Bars or Bonnie Blue Flag. Hee hee. Those who know, know and smile.
I agree with Kent.
Nobody can know if there's a gun in my car. Everyone can know if there's a sticker on my car.
Imagine this with political stickers. Imagine what would happen if a company fired an employee because they had a Hillary! 08 sticker instead of one that promoted Hope and Change!
The employer is well within his rights, but proves he's (or she's) an idiot.
The first amendment reads, in part: "Congress shall make no law [ ... ] abridging the freedom of speech [ ... ]."
The property owner is not "Congress". He gets to decide who can be on his land and why.
In fact, as I read them both, the First Amendment has seriously weaker protections in it than the Second.
Personally, I think banning the flag is stupid. Not because I have any love for the confederate flat (I'm from WV, the state south of the Mason-Dixon line that fought for the union.)
The problem I have with telling your employees not to display the flag on their vehicles is that you can't keep customers from displaying them. In a parking lot, how will potential customers know the difference between employee cars and customer cars?
I can see a ban if you are a field tech, for instance, and you drive your personal vehicle to customer locations, where they can clearly associate your company with the decorations on the vehicle you drive. But in a parking lot, it doesn't really make any sense.
In my home state of Arkansas, there are virtually no state protections for employees of any kind. Being a "right to work" state means that I actually have no right to work, that my employer can fire me at any time without explanation.
Employers here can have all kinds of rules about where employees can park, what they can wear, what they can do and not do, and the employer's powers, regulations, policies, and procedures are absolute if the employee wants to work there.
Oh, there are a few cases in court every now and then where an employee sues over violation of Federal safety or sexual harrassment laws, but here a worker has no State property or speech rights at all.
Which is pretty much why I keep my mouth shut and my gun concealed on my person.
There is no 1st Amendment issue here. The Bill of Rights is a restraint on government.
kbarrett: "the First Amendment has seriously weaker protections in it than the Second."
I don't see that. "Congress shall make no law ...", being a direct imperative statement, is less subject to interpretive argument than the passive mood "shall not be infringed", which, unfortunately, allows for arguments about what exactly "infringed" means. Not that I have any trouble with it, just pointing out how the constructions differ, and how people can take that.
Ah--I see I have worded this carelessly--Jed, of course you are right--this is not a 1st Amendment issue and I know that. We'd had the discussion of property rights vs. Second Amendment/RKBA and I worded the title to this post clumsily and incorrectly with that in mind.
Let me emphasize the postulate as one of property rights vs. unalienable individual rights.
Are they competing, is one subordinate?
If so for speech, is it logically consistent if a different conclusion is reached for being armed>
It seems most agree that flying a flag has something to do with free speech. Doesn't the word "speech" imply talking?
But what if the guy with the flag owned his own company and a Mexican employee showed up every day with the Mexican flag affixed to his car? As the owner of the property, he could certainly insist that the Mexican flag not be flown on it. If not, then who really owns the property? (Let's pretend that we do, but we all know the rulers own everything.)
This seems to be pretty much a non-issue. While I may travel with a Confederate flag or decal on my car, I don't have the "right" to park on someone else's property whether their objection is to the flag or my obnoxious personality.
I'm from Alabama and I love the Confederate flag, but I respect others' property rights. I would not allow, for instance, someone making himself at home on my property (employee or not) wearing a Ku Klux Klan robe or a Nazi uniform.
Sorry David, I was writing this as the last two posts were being submitted.
I discount the fact that in the Texas flag burning case, the Supreme Court made up a new "right," "symbolic speech," because as usual, they are wrong.
Whoops, I meant I wrote the first post before I read yours and Jed's.
But in answer to your question: "Let me emphasize the postulate as one of property rights vs. unalienable individual rights. Are they competing, is one subordinate?
Does not the owner of property have the same unalienable rights as everyone else, including property rights? (Again, let's pretend that we have any rights at all.)
In that case, they should not be competing or subordinate, but the same.
Katrina, courts have widely held that 1A applies to "expression," hence protections for pornography, etc. And with incorporation, it is now applied to the states/municipalities, hence no manger dispays at City Hall at Christmas, no prayers in schools, etc.
But the rights ARE competing, and one MUST be subordinate if the other is to prevail. Let me illustrate:
I want to fly a nazi flag from my truck in your parking lot. You say 'no.'
Who wins?
I want to wear a gun in your store. You say 'no.' Who wins?
I submit these two examples are not that dissimilar--they both involve an individual exercising unalienable rights vs. a property owner saying "Not at my place."
We had a very spirited discussion here about a year back about this as it relates to RKBA, and so my question is, don't these both need to be treated the same if one is to be logically consistent? If not, why not?
Here is my take on it:
1) The 1st covers more than talking; otherwise it would not cover writing & printing/publishing, which Ben Franklin would have objected to. Also, it would not cover sign language, websites & blogging (such as this).
2) The 2nd makes it known to all that it applies to all that would try to infringe, not just government. I do not see such protections/limits/definitions/etc. in the Constitution for property rights, so I would say that the 2nd along with the 1st would trump property rights.
Not claiming that I am right and clearly my answer is not the definitive or final word on the subject, just my take on the subject.
Why do so many people claim tha the employers property rights trump the employees property rights?
Sorry, I do not see this, nor the guns at work issue, as 1stA or 2ndA vs property rights. I see this as straight property rights vs property rights. I own myself and I own my vehicle. Thus, your rights end at the soles of my shoes and the interface of my tires and the ground.
In the aforementioned case of field techs, if the employer wants a certain image then they should supply the vehicle(s). That way they can dictate what it looks like, how it's maintained etc... If they want to cut corners and make the employee use their own car then the employer is taking a risk.
Every person owns themself. When at work they still own themselves, they are not slaves for the time that they are working. Therefore they still have property rights over their own property.
Yes, I feel this way about weapons (arms) as well.
"I want to wear a gun in your store. You say 'no.' Who wins?"
You win either way. If a store says no, you patronize the next store and the first one loses your business. And if the person behind you in line was there to rob the place, the store loses again after said robber watches the owner advertise his defenselessness by asking you to leave.
So, yea, I think property law generally trumps individual rights. But the law of unintended consequences trumps both.
You already know my view of the employer as God. He can interfere with my rights if he can put me down and keep me there. Otherwise he may want to reconsider.
He is allowed to reconsider my continued, or not, employment,but he is not allowed to even primarily consider what I say, exhibit or carry. That carries penalties.
My property, my rules. You don't like my rules, you're free to go. It's really that simple. Anything else is coercion.
I think kbarrett is on the right track here.
"The first amendment reads, in part: "Congress shall make no law [ ... ] abridging the freedom of speech [ ... ].""
The Second Amendment states "...shall not be infringed."
Congress can not constitutionally pass a law stating that Confederate flags can not be displayed on your vehicle. An employer can.
I do not see where the right to express yourself in any way you see fit at any location you desire as a natural or God given right.
The right to protect your very life is.
One of those great logical questions is the Barber Paradox - "If the barber shaves everyone's beard who does not shave his own, who shaves the barber?" The most common answer to the question is "Nobody, the barber is a woman." But a second answer - proposed by Heinlein, I believe, is "Follow him around and find out." In other words, it's the QUESTION that's the problem, not the hair cutting.
And that's what we have here, is the question being the problem. David, you propose the concept of "competing rights" when actually there aren't. What "right" does the employee have to enter his workplace? What "right" do you have to enter a store? What "right" do you have to park in any particular parking lot? The answer is simple - none. You have what we in law call a "license" to do so. Since we all know that licenses can be revoked, there are no "competing rights" here.
Furthermore, one cannot use a right to diminish another's right. Your right to express yourself (and it is expression, not mere speech, that is protected) by swinging your arms around ends at the tip of my nose. You have no right to injure me or mine, nor do you have any right to force yourself onto me or mine. This includes not only my person, but my property.
Bottom line: My right to control myself and my property easily trumps your license to use my property.
"My property, my rules. You don't like my rules, you're free to go. It's really that simple. Anything else is coercion."
Damned skippy. Private property rights are key to all other rights. If you can't own anything, to include your very person, how are you going to exercise any rights?
However, the private property owner usually must be aware of the object he/she considers undesirable before an objection can be raised. For a sticker, that's hard to avoid. For smaller objects not usually displayed, it's much less of an issue.
If you don't like it, you can always leave.
My rights go where I go. Period. If you think you can take them from me, you had better be prepared to use force.
And I don't care whose property I am on. Don't invite me, if that bothers you.
If you do invite me, then my rights come with me. See third sentence.
I have never accepted employment from anyone who stated upfront that my rights ended at his property line. I have never worked for anyone who didn't invite me to do so. He invites me, he invites my rights. again, see third sentence.
Thank you straightarrow. As I have always said, your property rights don't extend inside my clothing.
So, straightarrow, do you TELL the storeowner or employer about your intent to exercise your right to keep and bear arms before they extend the invitation to you? If so, and they invite/employ you anyway, then they've waived the condition.
If not, then you're entering/working under false pretenses and ought to be ashamed of yourself. Not much of a "right" if you're willing to lie about it in order to obtain personal advantage for yourself.
So...which of the two is it? Honesty or fraud and deceit? I can't wait to hear your answer, though I have some strong suspicions as to what it will be...
Whoa, whoa, whoa--let's keep it philosophical--SA and I have disagreed over this point before and have managed to do so without hard feelings.
Have I read the tone wrong here? One of the problems with written communication is we miss all the nonverbal cues we throw off when speaking face to face--gestures, tone, expressions, pace...
I trust this discussion will remain one of light, more than heat...?
My fault. I apologize for being overly snarky in my presentation. My day job is bleeding over into my posts, and while the tone may not have been intended - or be - as bad as it seems, nevertheless it was also unprofessional.
Call it fifty-fifty between "written medium" vs. "stupidly snarky and personal."
Again, my apologies.
SA - Do I, or do I not have the right to post a list of rules at the edge of my property that deliniate the terms of your admission?
Nobody has even contended that they have the right to disarm you. They DO have the right to ask you to leave. Then YOU have the right to choose whether you want to leave or disarm. I don't know why this is so hard.
I do believe Nick and IOL that is what I said. Don't invite me if you won't honor my personal rights on your property.
You have the right to post those signs, I have the obligation to not enter and the right not to do business with you.
IOL, I can answer your question, I was once interviewing for a job and desperately needed it. I was also a perfect fit for it in terms of expertise, experience and proven track record.
During the interview I was informed of company policies that I found objectionable on a personal rights level. After the interviewer who also was the owner was done explaining all the prohibitions he would place on me as conditions of employment, most of which were none of his damn business I said, " I am not the only one being interviewed here. You are also being interviewed. I have to tell you, you just failed miserably."
He was dumbstruck, his mouth actually did fall open, just like in a bad novel. He was still in that condition as I walked out. That job was mine for the taking. But I passed on it, though I really needed it.
Does that answer your question?
I do hold myself to as strict and often stricter principles than I require of others. I am not a hypocrite. My face is the only one I have to shave, I don't want to be ashamed to see it when I do.
I have worked in areas where some rights were voluntarily surrendered because it made sense to do so as related to safety concerns. For instance, carrying a firearm in a refinery is foolish and places others at a level of danger not justified by the benefits of being personally armed.
Agreeing to not talk about security matters, EVER, is another area where I have willingly agreed to curtail my rights under the 1st amendment, for the same reasons.
Even though many of the things I was privy to are now common knowledge, I still don't speak of them, because I agreed not to, ever. Though, the harm would now be nil, my word still holds.
Not really germane to the above, but important to me, is the fact that of those secrecy agreements there are always listed the penalties (threats)for breaking your agreement. Those always pissed me off, and on occassion I have written on the form that threats just piss me off, if I agree I will keep my word.
I get pissed when I see a "NO Parking" sign with the threat of being towed and fined listed on it. All I really need to see is "NO Parking", I won't park there. But I have to admit that occassionally I have had to resist the juvenile impulse to run over the insulting threat.
Are we clear on that now?
Oh and one more thing, I am probably the most fervent 2A supporter you ever met who doesn't carry.
If and when I decide to resume carry, it will be like the period in my life when I did. I won't ask anybody's permission.
Now let me ask a question about, maybe not hypocrisy, but inconsistency.
If and when you post your signs and or establish your rules of no carry on your premises (just as an example) how far are you willing to go to enforce it against law enforcement personnel who enter your property armed?
Do not fall back on "the law exempts them". This is about property rights. Most of you seem adamant that it is your property and you establish the rules for entry to it.
So, are you willing to exempt some because they may overpower you, either literally or figuratively, if you tried to administer your property in accord with your stated policy?
Does that not seem to be more inconsistent than my position? I think it does, unless we agree that we are lesser citizens, which I do not.
I see I got no response to my question.
So you think that if I post a sign that says "no guns on the property" and an LEO comes to serve a warrant and I don't shoot him, I'm inconsistent?
If someone breaks the rules (leo or not), they get asked to leave. They're obligated to leave at that point no matter who they are, unless I'm being lawfully arrested. If they don't, things could escalate - again, regardless of who they are.
And a note on your parking sign tirade - So is your beef with the fact that there are consequences, or the idea that they're published along with the rules? Either way, I don't get your problem.
Nick, you just want to argue. Ok, I don't mind. I was not talking about you being arrested, I didn't even intimate that was the situation. I merely asked if you would tell him leave or disarm. See? That wasn't that hard was it?
I have done so and made it stick, somehow, I don't think in light of your misdirection you would do so. Else, you wouldn't have felt the need to introduce an unasked element into the answer.
My problem with the signs as I previously stated is juvenile. I know it is. But if you ask me to, for instance, leave your table at a public picnic, I will do so. However, if you tell me to leave or you will whip my ass, you just may have to back it up. That's my problem with the signs. I don't like being threatened, it is discourteous and at that point I am no longer bound by the precepts of courtesy.
I pity you if you do not understand that. I take that back, I pity the people that rely upon you, if you don't understand that.
I am quite courteous and considerate of others, until they take that as license to count coup on me (ask if you don't know what that means). When one shows his contempt of me, I usually resent it, and often readjust it.
If someone refuses to respect me, I will settle for him fearing me. That others are susceptible to threats of consequences does not mean I enjoy being threatened.
You didn't notice the part where I stated that all I needed to see was "NO PARKING" and I wouldn't? Do you not understand the assault on your autonomy when anybody, even government, is allowed to believe you acquiesced out of fear, rather than the spirit of cooperation?
Oh, and I didn't say a damn thing about shooting anybody. I merely asked if you would make them leave or disarm. I have done so, and I didn't shoot a damn soul. Not only that, I didn't even have a firearm when I did it. However, that is not my normal response, because I usually don't care who is armed or not, nor where they are, my property or not. That particular case was where firearms were prohibited unless manifested. The cops' guns weren't part of my manifest, and since that prohibition applied to me, I sure as Hell wasn't going to exempt them.
To put it politely I don't believe you would ask them to leave. I saw where you said you would, but your diversion makes me believe you wouldn't.
oh, yeah, another thought I forgot to include in the above post. If you post a sign saying "no guns on the property", what the Hell would you shoot them with?
Now we're talking hypocrisy.
I certainly _would_ ask them to leave, and if you don't believe me I don't give a rip. You don't want to believe me because you want to be the tough guy who likes to show everyone else how much _less tough_ they are. Kudos.
On your second question, and since you apparently like simple answers:
One of my guns.
What happened to "no guns on the property"?
Nothing to do with being tough. Nobody said anything about tough, either. I think maybe you're the one with the fixation.
See first question about hypocrisy. What happened to "no guns on the property"?
It is my considered opinion that the commment I just deleted crossed a line I've clearly asked people to respect.
Please restate and resubmit. Or don't.
I truly don't have time to play moderator.
I never said "no guns on the property". I said a person might not want to let VISITORS bring guns.
Are you really unable to tell the difference?
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