NAACP suggests South Carolina flying
confederateflagisworkplace / public accommodations harassment
LEVINSON at JURIS.LAW.NYU.EDU
Thu Nov 4 17:24:13 PST 1999
David Bernstein writes:
But does South Carolina have fewer rights here than would a private employer, or does Sandy think a private employer could not fly a confederate flag, either? The First Amendment is not phrased as an individual right, but as a ban on Congressional speech regulation, and the 13th Amendment applies to individuals as well as states.
Yes, South Carolina definitely has fewer rights than a private employer. A p.e. is not under a constitutional duty to provide "equal protection of the law," and the serious question is whether the State's flying the Confederate flag generates a hostile (i.e., unequal) environment, especially with regard to race, an issue not unrelated to the Fourteenth Amendment, whatever one's favorite theory of the Amendment. When private employers are at issue, I think there is a serious question, of the kind that Eugene has emphasized over and over again, about possible incursions into the free speech rights of private individuals. But I continue to believe that the State just can't claim the same position, especially when the underlying legislation (and regulations) are most plausibly predicated on Section 5 of the Fourteenth Amendment.
(I take it, incidentally, that (almost) everyone agrees that the state could not fly a flag saying "Jesus Saves," because of the Establishment Clause. If you agree with this, then does the Fourteenth Amendment, correctly interpreted, prevent the state flying a flag that includes the words "Dedicated to White Supremacy"? If you think it does, then we get to the semiotic question as to what meaning South Carolina's decision, in the 1950s, to start flying the flag, was intended to convey. (Shameless self-promotion: I discuss just these issues in Written in Stone: Public Monuments in Changing Societies. I now wish I had titled the book Constructing Political Correctness: Public Monuments (and Flags) in Changing Socities, because it is obvious imposing a certain version of political correctness (such as that the Confederacy was really about noble things other than suppression of black slaves) is behind all public monuments and flags.)
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