U.S. Government Voiding the First Amendment
Freedom is lost when unintended offense prohibits expression.
August 7, 2016
Fred Foldvary, Ph.D.

The U.S. government has decreed that elements of the American Revolutionary War against Great Britain could be considered to be racist, and that the US government has the power to prohibit such revolutionary expressions. Specifically, the U.S. Equal Employment Opportunity Commission has ruled that depicting the revolutionary flag “Don’t Tread on Me” could constitute racial harassment. A complaint about the flag has met the legal standard to state a harassment claim.

As a precedent, the Vice President of the International Association of Black Professional Firefighters claimed that this revolutionary flag is the equivalent of the Confederate Battle Flag, and  he had it removed from a New Haven, Connecticut, fire department flagpole.

The Gadsden snake flag has a yellow field and a coiled rattle snake, it’s mouth open, it’s tongue lashing out, warning that the snake is ready to strike out. Beneath the snake is a patch of grass and below that, the words “DONT TREAD ON ME”. The symbol is a warning to tyrants that treading on our liberty will encounter fierce defensive resistance.

But now, in a stark break from America’s revolutionary past, the US Government is treading on the very liberty that the flag symbolizes. The federal government has assumed the power to  effectively ban displays of that revolutionary flag.

Twas not always thus. This may sound unbelievable today, but in 1968, the United States Post Office issued a set of 6-cent revolutionary war stamps, including the “First Navy Jack” flag depicting a snake on a background of red and white stripes, with the now-possibly tabu declaration, “DONT TREAD ON ME” (Scott stamp catalog number 1354).

In 1775 Colonel Patrick Henry's First Virginia minutemen Regiment designed a flag showing a coiled rattle snake and the words “LIBERTY OR DEATH” and “DONT TREAD ON ME”. The snake had been a symbol of American resistance to British tyrants. In 1751 Benjamin Franklin's Pennsylvania Gazette had protested the British policy of sending convicts to America. The author proposed that the colonists retaliate by shipping rattlesnakes to England. There had also been a flag of a rattle snake cut up into 13 pieces, with the inscription, “JOIN, or DIE”.

This now-tabu flag was created in 1775, when Colonel Christopher Gadsden, representing South Carolina, presented a naval flag to the Continental Congress. It was the snake flag, which became, as portrayed in the 1968 stamp, the first flag used by the sea-going soldiers who later become the United States Marines.

On August 3, 2016, an article by Eugene Volokh was published, entitled “Wearing ‘Don’t Tread on Me’ insignia could be punishable racial harassment.” The Equal Employment Opportunity Commission rules on “hostile work environment” harassment claims. The EEOC had previously  ruled that coworkers’ wearing Confederate-flag T-shirts constitutes harassment. The subjective perception of any offense, regardless of the picture or intent, is now punishable, and effectively voids the first amendment. An August 4 article in reason.com by Scott Shackford entitled “When Wrongthink Becomes Workplace Harrassment” also discusses the issue.

In this case, a coworker wore a cap to work with an insignia of the Gadsden Flag. The complainant considered the cap to be racially offensive to African Americans because the designer of flag, Christopher Gadsden, was a slave trader and owner. The EEOC also stated that “whatever the historic origins and meanings of the symbol, it also has since been sometimes interpreted to convey racially-tinged messages in some contexts.”

By that criterion, the US $1 and $20 bills can be considered offensive, since George Washington owned slaves, and Andrew Jackson murdered American Indians. The $50 note, depicting general and president Grant, could be offensive to Southerners. The image of Thomas Jefferson could be considered racist also, since he owned slaves. Perhaps the Declaration of Independence must not be shown as well.

The fact that the US government is even considering banning “DONT TREAD ON ME” shows how, effectively, the revolutionary spirit of liberty has already been lost. Government officials may not even be aware of the irony of treading on this liberty slogan.

Revolutionary symbols have been appropriated by evil movements which themselves are opposed to liberty. The word “liberty” is misused by hate groups, but it is also abused by the US government by putting the word on coins and then not living up to the meaning. Banning rattlesnake images and revolutionary slogans constitutes guilt by association.

An element of liberty is the right to be offensive. There is no free speech if one is not allowed to say messages that others don’t like, so long as there is no intended threat to others. That mere offenses are increasingly prohibited is a symptom of the gradual death of tolerance and liberty in the United States of America.

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Fred Foldvary, Ph.D.

FRED E. FOLDVARY, Ph.D., (May 11, 1946 — June 5, 2021) was an economist who wrote weekly editorials for Progress.org since 1997. Foldvary’s commentaries are well respected for their currency, sound logic, wit, and consistent devotion to human freedom. He received his B.A. in economics from the University of California at Berkeley, and his M.A. and Ph.D. in economics from George Mason University. He taught economics at Virginia Tech, John F. Kennedy University, Santa Clara University, and San Jose State University.

Foldvary is the author of The Soul of LibertyPublic Goods and Private Communities, and Dictionary of Free Market Economics. He edited and contributed to Beyond Neoclassical Economics and, with Dan Klein, The Half-Life of Policy Rationales. Foldvary’s areas of research included public finance, governance, ethical philosophy, and land economics.

Foldvary is notably known for going on record in the American Journal of Economics and Sociology in 1997 to predict the exact timing of the 2008 economic depression—eleven years before the event occurred. He was able to do so due to his extensive knowledge of the real-estate cycle.