Investigating the Meaning of the Gadsden Flag

A government agency’s report from a couple of months ago is just now being spread around the web, thanks to law professor Eugene Volokh’s column about it in the Washington Post.

The Volokh article is headlined “Wearing ‘Don’t Tread on Me’ insignia could be punishable racial harassment.” Some right-wing websites echoing that story skipped the “could be” and leapt right to misinforming readers that a government agency had ruled “Don’t Tread on Me” racist.

In addition, some people commenting on those stories assume that a federal authority has ruled that the Gadsden Flag and associated “Don’t Tread on Me” slogan are racist because of their roots in the slave society of Revolutionary America. That shows they didn’t read the ruling or Volokh’s column.

The anonymous employee who filed a complaint with the Equal Employment Opportunity Commission did make that claim:

Complainant stated that he found the cap to be racially offensive to African Americans because the flag was designed by Christopher Gadsden, a “slave trader & owner of slaves.”

The historic claims are correct. In 1774 more than ninety men, women, and children were enslaved on Gadsden’s two rice plantations. He paid Customs duties on the cargo of at least two slave ships, in 1755 and 1762.

Furthermore, Gadsden’s South Carolina was a society built on slavery. At the time of the Revolution, historians estimate that more than half of its human population was enslaved. Because the British military freed and evacuated so many people, that fraction went down by the 1790 census, but South Carolina still had a larger percentage of its population in bondage than any other state. By the early 1800s through the Civil War, the state’s population was once again mostly enslaved.

However, the E.E.O.C. rejected the claim that the Gadsden Flag is offensive because of its historical origin:

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.

In doing so, the E.E.O.C. also confirmed that “the modern Tea Party political movement” expresses “various non-racial sentiments” through the flag, which looks like a tacit rejection of the complaint’s suggestion that the Tea Party is an expression of “white resentment against blacks.”

The potential problem with the Gadsden flag, the E.E.O.C. ruling said, lies not in its past but in the way it’s being used today:

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. For example, in June 2014, assailants with connections to white supremacist groups draped the bodies of two murdered police officers with the Gadsden flag during their Las Vegas, Nevada shooting spree.

One hopes that fans of the Gadsden Flag loudly decried how those terrorists used it.

We know that a respectable symbol can become a threat, an insult, and socially anathema after a destructive movement seizes on it. We don’t see swastikas as design elements anymore. (The Las Vegas killers also left swastikas on the bodies of their victims.) Was it reasonable to think that had happened with the Gadsden Flag when this complain was filed?

Chronology works against that argument. The complaint was made to the E.E.O.C. in January 2014. The dispute over a Gadsden Flag in the New Haven Fire Department, which the complaint and ruling seem to refer to (inaccurately mentioning a flagpole), became public in February of that year. The Las Vegas killings occurred in June. In other words, the specified evidence of the Gadsden flag’s racist meaning didn’t exist during the period covered by the complaint.

Of course, there’s another way to look at that sequence of events. The employee might feel that the Las Vegas murders were tragic confirmation of what he’d already sensed based on previous evidence—the racists had adopted the Gadsden Flag and tainted it with their ideology. But the complaint would need to present that evidence.

Finally, it’s important to recognize that the E.E.O.C. has not ruled on whether that perception of the Gadsden Flag has merit. Instead, it concluded:

In light of the ambiguity in the current meaning of this symbol, we find that Complainant’s claim must be investigated to determine the specific context in which C1 [another employee] displayed the symbol in the workplace. In so finding, we are not prejudging the merits of Complainant’s complaint. Instead, we are precluding a procedural dismissal that would deprive us of evidence that would illuminate the meaning conveyed by C1’s display of the symbol.

Volokh, who has long argued that workplace harassment laws impinge on free speech, presented this conclusion as ominous. Many political websites picked up on that argument without acknowledging what the E.E.O.C. actually decided—to investigate further.