BJ’s steps on worker’s rights
I’m no fan of the Confederate flag. It started its life as the flag of slave-owning traitors and it now lives as a symbol that rests comfortably next to the nazi swastika.
Nevertheless, the First Amendment is there to protect speech that we don’t like — not speech we like.
I have to, therefore, side with Mr. Bobby Tillett. Tillett works at a BJ’s warehouse in Jacksonville, Florida and drives a camouflage pickup truck with a confederate flag flying over it. His employer told him that he had to get rid of it, or he couldn’t park in the company parking lot.
Tillett refused to back down, so he parks a half mile away and walks to the store now. (CNN video)
Constitutionally and legally, BJ’s is right. The parking lot is private property, and the property owner can dictate what happens in its parking lot.
However, I am uncomfortable with the fact that our First Amendment rights lose any potency once private property is involved - as long as the speech is not of a favored variety. If Mr. Tillett had a crucifix on his car, and BJ’s treated him the same way, BJ’s would be paying out a nice fat discrimination award. You can’t claim “private property” as a defense to racial discrimination, but our most cherished freedom can be washed away with a bill of sale?
I hate what Mr. Tillett believes in. I admire him for standing up for it.
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May 9, 2008 at 12:41 pm
In a purely theoretical sense, yes, Mr. Tillett should be able to fly such a flag from his vehicle. However, I believe his employer’s objections come from their desire not to have Mr. Tillett’s views reflect poorly on his business. The appearance of any business is important (the extent of that importance changes depending on the business, obviously), and the employer is perfectly reasonable in not wanting passers-by to see a symbol which is held in such disgust on the business’s property.
If I were the business owner, I would make the same decision, based solely on the potential negative impact of a confederate flag flying in my parking lot every work day; in my mind it’s purely a business decision.
May 9, 2008 at 12:59 pm
A reasonable perspective, and I can’t disagree with it.
I simply don’t like the fact that businesses are allowed to make this kind of economic decision. We don’t let businesses say “I won’t hire an Indian, because it would be bad for business.” Even if it were provably bad for business, we have decided that there are certain civil rights that are more important than a business’ right to make a profit.
I think that our First Amendment rights should be that important too. They aren’t, legally speaking. But I think they should be.
May 9, 2008 at 2:28 pm
Based on the current stance of the law, if the employer allows Mr. Tillet to drive his Confederate flag vehicle to work, then Mr. Tillet’s speech effectively becomes associated with his employer. People tend to accept the fact that an employer is not engaging in speech when it hires an Indian. The employer is not speaking in this hypothetical because the law essentially tells the employer, “Shut up or we’ll fine you for discrimination.” In the religion context (as your blog post references), the law (and importantly the Constitution) carves out a special place for religion. The speech at issue here doesn’t fall into that exception, so it’s just another type of speech. Do we want to carve out an exception for this type of speech too? Which presents the question whose speech rights should we protect in this context? Should we erode the employer’s right not to speak? If we allow employee’s to say what they want at work without rebuke, then employee speech controls that of the employer. Do we really want to allow employees to express themselves however they want without the employer having any say in the matter?
May 9, 2008 at 2:39 pm
A good point too… and, lets take it one step further. If BJs did NOT order him to take it off the property, would a Black co-worker have had a claim against BJs for allowing a hostile work environment to exist? Probably so.
What I’m getting at is not that we need an exception for this kind of speech — but that an employee’s free speech should not be so lightly trampled. If the employee was creating a disturbance, perhaps. If the employee was speaking during work hours, perhaps. But, I think that an employee’s car, in the parking lot, should be left alone.
Again, you’re right on the law — and so is BJ’s. I just think it should not be so.
May 9, 2008 at 3:47 pm
I think I misinterpreted how far you wanted employee rights to extend. Parking lot may not be a problem in this situation. However, what about where the employee parks in a designated spot near the entrace, which is visible to all entrants? I think the employer should be able to silence the employee’s speech in this scenario. Some (perhaps most) parking lot setups won’t fall into this problem. I have no problem if the employee’s speech on work premises are not being attributed to the employer. My concern regards the employer’s speech rights. (I hold the opinion that commercial speech is well undervalued in our current jurisprudence, which explains my perspective here.)
May 9, 2008 at 4:09 pm
I think BJ’s should be sued for false advertising.
May 14, 2008 at 11:44 am
Play Fair Use of Jeopardy Theme Song…
Welcome to First Amendment Jeopardy….Marc Randazza has a nearly insurmountable lead but Mr. Blevins is creeping up. Mr. Blevins it is your board….
Symbols for 800…Answer: It is the symbol used to represent states’ rights and freedom from a large federal government. It was also a portion of a modern state flag. It only lasted fro 10yrs.
Mr. Blevins: What is….the Confederate Flag………..CORRECT.
Symbols for 1000…Answer: It is the symbol used to vindicate a plethora of human rights violations. It is used as a defense and catalyst for massacre, torture, child molestation and world dominations. It has lasted for 1000’s of years.
Mr. Blevins: What is………the Christian Crucifix……CORRECT.
Get the point?
It is intellecutally dishonest to give the Confederate Flag credit for slavery or discrimination of blacks. In fact, the Civil War was not, contrary to history blinders, fought in defense of the institution of slavery. The Civil War was fought over federalism. The states wanted more power and less federal intrusion. An earmark of the conflict was the institution of slavery. Further, it is easy to pick a side in this historic conflict by pointing to slavery. The Civil War was fought over the most basic right embodied in the Federal Constitution and the Bill of Rights….the right to revolt.
However, even if we want to be parsimonious and call the Civil War the Slavery War…the Stars and Bars are not responsible….it was the Stars and Stripes that endorsed slavery. Remember, the federal government endorsed the institution of slavery. The US was built on the back of slaves. See Dred Scott, Plessy v. Ferguson, the 3/5 Compromise, etc…Nothing in the constitution forbid slavery. This is evidenced by the need for inclusion of the 13 and 14th Amendments.
Unlike the Nazi flag, being a “confederate” does not include systematic extermination of the certain race of people. Further, being a “confederate” does not mean you have to be a slave owner or a citizen of a slave owning state. See Missouri. However, a tenet of Nazi-ism was the protection of the white race. To be a Nazi, you must endorse the subservience of other people.
The Mason Dixon line is not a clear demarcation of human rights. South of the line, slaves knew they were slaves. North of the line, northerners lied to everyone. They state “You are equal.” as they showed the way to the “Whites Only” Diner, water fountain, school, parks, etc. The Stars and Stripes represent this dark time in American history, not the fleeting Stars and Bars. Slavery and discrimination were NATION wide, not just a southern event.
The case at bar: The Confederate Flag DOES NOT represent anything “abusive, hateful, or hostile.” Yes, some of the proud flyers of the flag are racist, ignorant bigots. However, many people fly the American Flag with the same intent. It is the people that are “abusive, hateful, or hostile.” Under BJ’s analysis, ALL citizens of South Carolina, prior to 2000 were in violation.
The fact that a black employee complains is moot. First, blacks do not have exlcusive right to standing regarding the Confederate Flag. The fact that this may be applicable, demonstrates the lack of education regarding the Civil War. Why is it less valid if someone of differing outward appearance complains? Does the person need to be of African, Jamaican, Haitian, or other descent?
Second, what about the Communist Flag? What about a Che shirt? General Mao? Where does it stop?
I know this does not follow my usual MO of applying the law. I know that BJ’s can restrict the speech of its employees. However, I only ask that people be true to themselves and true to what is “hostile, abusive, or hateful.”
I submit that the crucifix should be removed from the work place. This symbol has endured for centuries as a symbol of hate, abuse, molestation, and world domination. The cross has been emblazoned on swords, shields, flags, and foreheads. This symbol preaches discrimination, inequality, and the removal of nay-sayers. Regardless of whether you find the religion to be peaceful or aggressive, it does preach that it is the ONE AND ONLY. This is scary. This is abusive, This is hostile. This is hateful. The crucifix is probably the most hostile international symbol. See, The Crusades (all of them), Spanish Inquisition, Salam Witch Trials (oh btw this was in the NORTH), and worldwide child molestation.
It should be removed.
Disclaimer: I do not endorse slavery or discrimination based on race, religions, or national origin. However, I do endorse discrimination based on what comes out of a person’s mouth and how a person thinks. White, black or rainbow, ignorance is ignorance. Ignorance shou
May 14, 2008 at 6:36 pm
I am not sure that the Stars and Bars are not loaded with abusive or hostile meaning. I’ve heard the argument that it is just an expression of “southern pride,” but I don’t buy it.
Mississippi put the Confederate St. Andrew’s Cross on its flag before 1900, but it was the only state to do so until Georgia did so as a direct answer to Brown v. Board of Education. Other southern states followed as a wave of annoyance washed over the south as a reaction to desegregation being imposed by the federal government.
I agree that the civil war was not *only* about trying to protect the institution of slavery, but to say it was just about federalism is to whitewash history. The south was so economically dependent upon slavery that they were driven to war to protect it. If the confederacy was simply concerned with federalism, then the expression of “southern pride” should be the banner of the individual state — not the whole south (which, again, the stars and bars never really represented). Confederate soldiers fought for their states, not the confederacy. You needed a passport to travel from Georgia to Alabama during 1861-1865.
There are an awful lot of southerners who do not feel represented by that flag — including, oh, every black person who lives here.
This concept of “southern pride” is simply a vestige of resistance to the civil rights movement. Honestly, what does a Floridian not have in common with someone from New Hampshire, as far as their heritage may come into play? Does someone from South Carolina actually have a shared heritage with someone from Texas that he does not share with someone from Montana? No… it is a myth, a fabrication, and revisionist history. (source)
The crucifix, on the other hand, HAS been at the front of many nasty acts. But, whether we follow it or not, it is easy to see the difference. The purpose and function of the stars and bars is to express white supremacy and a distrust and disdain for federal authority *because* it imposed equality.
May 15, 2008 at 9:11 am
I agree that the Confederate Flag, southern pride defense, it weak. However, the issue was whether the flag itself was a symbol of “abuse or hostility” per BJ’s regulations.
The points and distinctions you made appear to prove the point that the flag is not a symbol of hostility or abuse. “The soldiers fought for their states.” Thus, were not fighting for anything other than state pride. The soldiers did not fight for slavery per se. One did not need to be a bigot to fight in the south. In fact, many in the south did NOT own any slaves. So, the flag means NOTHING. But, in the hands of a bigot, it can mean something.
So, the flag, in and of itself, does not represent ANYTHING. It is a relic that some people find pride. However, it is not the flag that should be restricted or regulated, it is the people that fly it. As a Texas born southerner, I can say that I do not support slavery or discrimination. So, the confederate flag means nothing to me. I do not find any abuse in the flying itself.
Yes, the south is a distinction that is cultural. I am unsure of the source quoted above but there is a distinction between the North and South. A distinction exists between the East and West. A distinction exists between Bostonians and New Yorkers. These distinctions are based on culture. Ultimately, we are all Americans, however, we all hold on to a part of our geographical heritage. Yes, you have to take the good with the bad…I am looking at you Salem, Mass. Also, what about the King Philip’s War and other atrocities hand out by the New England against the American Indians?
What does a person from Florida NOT have in common from someone in New Hampshire?…LOTS! First, the beach. Second, actual sports team (not just “New England” teams). Third, an original name, not just “New.” Fourth, a history of Spanish ownership. Fifth, hurricanes. This list could go on forever! I realize some of the examples may not be “heritage” but eventually a state burdened by hurricanes develops a different heritage. Texas has distinctions that no other state has…any other state been a country? NOPE, Texas was…I will not go into the exhaustive list of Montana v. Texas distinctions.
As far as how blacks see the confederate flag…it was not the confederate flag that flew on the slave ships that pulled in to the shores of West African and the Caribbean…it was the Federal Stars and Stripes. The stars and stripes have the longest history of oppression. The confederate flag existed for a blink in time. The stars and stripes have endured for 200 yrs (in different forms).
It is not revisionist history to look at the actual facts and events. It is naivety to look back and point the finger at the south. Yes, the South did fight and if it won, slavery may have endured for a longer period of time. But, the Nation supported slavery! Yes, the south was economically dependent on slavery…guess who bought southern cotton and tobacco…the North! So, the north was also dependent…this was seen in the first depression in this country. It is parsimonious to believe that South was bad and the North was good. The evil was latent in our society and it took 200 years for us to ALL clean our hands of the ills imposed by our predecessors. It is just easier to point to the south and wag our fingers.
To the crucifix:
How is it different? The cross imposes inequality. In fact, for centuries, the church acted on a “comply or die” policy. Christians have tried to take over the world since some guy names Jesus walked around. If I were a jew…I would hold a grudge against a co-worker mounting a crucifix….same if I were a Muslim…These two groups have a legitimate beef with Jesus and his followers.