“Jeer” at a Confederate Flag in South Carolina and Go to Jail

Tomorrow, we start class. I’ve assigned two cases involving employees who were fired for workplace disputes involving flags. They’re interesting cases.

In one, an employee of a defense contractor was ordered to fly a small American flag at his work station. He refused, citing First Amendment rights. He lost his case: An employee has no First Amendment rights in a private workplace. (Caveat: state constitutions expand First Amendment rights, and a state constitution may prohibit an employer from terminating an employee for political expression.)

In the second case, an employee in South Carolina was fired for pasting a Confederate flag sticker on his tool box. A black employee felt uncomfortable. The employer, on several occasions, told the Confederate-group member to take off the flag. Eventually, the employee was fired for insubordination. His lawsuit also failed.

The point isn’t so much what flags you must fly or not show at work: The point is to demonstrate to students that an employer has broad rights to regulate speech in the workplace.

Now, here’s the main reason for my post. South Carolina still maintains a criminal law that prohibits desecration of the American flag, the Confederate flag, and the state flag.

Some quick observations: It is constitutional to desecrate the U.S. flag. Personally, I abhor this. But that’s a demonstration of how broad our rights to free speech are.

Second, South Carolina hasn’t figured out they lost the Civil War. Protecting the Confederate flag side-by-side with the U.S. flag ignores the treason committed by seceding from the Union. It also ignores Appomattox, the Reconstruction, and contemporary norms (though we might be receding to a pre-Civil War view that aligns with South Carolina law).

Third, South Carolina does not care a wit about keeping blatantly unconstitutional laws on its books.

Finally, South Carolina has its own extreme version of PC speech—it is politically correct to protect the Confederate flag, and violating that principle subjects you to criminal action.

 SECTION 16-17-220. Desecration or mutilation of United States, Confederate or State flags.

Any person who in any manner, for exhibition or display, shall (a) knowingly place or cause to be placed any word, inscription, figure, mark, picture, design, device, symbol, name, characters, drawing, notice or advertisement of any nature upon any flag, standard, color or ensign of the United States, the Confederate States of America or this State or upon a flag, standard, color or ensign purporting to be such, or (d) publicly mutilate, deface, defile, defy, jeer at, trample upon or cast contempt, either by word or act, upon any such flag, standard, color or ensign shall be guilty of a misdemeanor and shall be punished by a fine not exceeding one hundred dollars or by imprisonment for not more than thirty days,….