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The Confederate Flag has been at the center of debate as of late due to a the recent shooting at a South Carolina church. A picture of the shooter, Dylann Roof Storm, was later released which showed him posing with a confederate flag.
Say an employee displays a picture of the Confederate flag on Facebook. Can he display it as free speech or can his employer take action?
Connecticut Employment Law Blog tried to answer this question. They cited the case Duke v. Hamil, a federal court case out of Georgia. The case revolves around a university police officer who was demoted after he displayed a Confederate flag on his Facebook page. The picture included the caption “It’s time for the second revolution”. The officer would claim that his demotion violated his right to Freedom Of Speech.
The court, on the grounds that it should be protected by the First Amendment , agreed with him, stating:
“However, the Court finds that Plaintiff’s speech can be fairly considered to relate to matters of political concern to the community because a Confederate flag can communicate an array of messages, among them various political or historical points of view. Combine this symbol with a statement calling for a revolution right after an election, and it is plausible that Plaintiff was expressing his dissatisfaction with Washington politicians. Even if Plaintiff had intended to convey a more radical message by using the Confederate flag and the word revolution, that message would also relate to political and social concerns of the community regardless of how unpopular or controversial that point of view may be. Plaintiff’s speech was thus a matter of public concern because it expressed disapproval of elected officials, certainly a topic “upon which `free and open debate is vital to informed decision-making by the electorate.”
The employee’s case didn’t last much longer as the court weighed the plaintiff’s speech against the interest of the police to take action when speech “may unreasonably disrupt the efficient conduct of government operations.”
“Appearing to advocate revolution during a presidential election, and to associate that idea with a Confederate flag, Plaintiff likely sent a partisan, if not prejudicial, message to many in the … Police Department and the community it serves.
After carefully weighing these factors, the Court finds that the … Police Department’s interests outweigh Plaintiff’s interest in speaking. It is obvious that speech invoking revolution and the Confederate flag could convey a host of opinions that many would find offensive, especially when associated with a senior law enforcement official.”
In the end this case shows that any right to display the flag would be outweighed by the disruption in the workplace.
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