Speaking a s resident of the other Vancouver, please don't carpet-bomb Canada. We are mostly nice and even our politicians are not too radicalized. Thank you. And sorry for interrupting.
As a Southeastern American resident, I don't think carpet bombing the great frozen North is under consideration at the current time. We'll keep you updated.
“ Had Dodge worn a “Jews Will Not Replace Us” hat, the result would have been different.”
So this incident took place before “MAGA” was understood to be a shorthand for that?
I only slightly kid. Wearing apparel from a campaign whose entire movement is based on cultural INsensitivity to a cultural sensitivity seminar feels like it deserves discipline, if not quite the level of meltdown recounted here.
Of course, I recognize that my feelings are not the law, and even that that’s a good thing. Usually.
No kidding required whatsoever. MAGA is shorthand for not only anti-Semitism, but white supremacy and literally disregarding election results. The idea that “normal” people can’t feel threatened by that is quite a carefully-constructed normal.
I’m a recent subscriber so I don’t know if that is just careless phrasing, or an indication of specific beliefs. I hope he reconsiders that paragraph a bit.
I'm quite sure it is not careless phrasing, but deliberate. A red MAGA hat doesn't threaten anyone; it sends various messages (one of which may be "I'm a total jerk"), but those messages are not real threats. Like Ken said, even the very liberal Ninth Circuit thought the teacher's crying because of the presence of a hat was ridiculous. People have the right to be jerks and have unpopular opinions, and we don't have to be friends with them.
I can’t yet reconcile that with the later sentence, “Had Dodge worn a “Jews Will Not Replace Us” hat, the result would have been different.” that’s also not a real threat, so why is it different?
You may believe that the hat doesn’t threaten anyone, but that requires that neither does a swastika armband. I can’t get to that conclusion.
I think the different, like Matthew says, is that MAGA is a phrase associated with a political movement, where as "the Jews Will Not Replace Us" is incitement or speech associated with incitement. It's the difference, IRL, between being a jerk to someone or using hateful language to incite––the former is protected, the latter is not.
I don't believe that's incitement, nor is incitement relevant here.
As I read the original post, in cases like this (where the government is wearing its "employer hat"), it can discipline an employee for political speech if that speech disrupts the workplace. Whether particular speech disrupts the workplace is a judgment call, and the Ninth Circuit decided that this MAGA hat did not disrupt the workplace. Popehat tells us the Ninth Circuit would have felt differently about a "Jews Will Not Replace Us" hat disrupting the workplace, which seems very likely. "Incitement" is not part of that discussion - because the government is wearing its employer hat for the purpose of this action, they just need to establish whether or not the MAGA hat disrupts the workplace.
This is what the "heckler's veto" part of the original post was about - hypothetically, a co-worker could absolutely lose their mind about the MAGA hat, and then claim that the hat disrupted the workplace.
Because one is a phrase associated with a political movement. Some followers of that movement have done bad things (including the leader). But "MAGA" itself is protected political speech. "Jews will not replace us" is not protected political speech. That is the difference.
If "Jews will not replace us" were a phrase associated with a political movement, would that make it okay?
I believe the distinction Popehat is articulating hinges on whether or not that speech disrupts the workplace, because as he says, the government is wearing its employer hat in this case rather than its sovereign hat.
No, that would not be likely. Because it's singling out a specific group. So even if that were some parties slogan it wouldn't pass muster and could be sanctioned by their employer.
That's something the courts generally have to do. It's important to note that both are generally free to say online or elsewhere (though not free from potential consequences, such as incitement).
Here, it's pretty clear that since other political speech was allowed, not allowing a MAGA hat was wrongly infringing on the employees rights.
But phrases like "Jews will not replace us" are specifically targeting a group of people. Easily crosses a line. But each phrase/slogan would have to be evaluated (there were several tests applied here, including a reasonableness standard). Free speech is tough. Despite some free speech absloutists thinking that the first amendment is plainly written and should apply as broadly as possible, it's not that simple, and never has been since the states ratified it. The courts have wrestled with this issue since it's inception, and will continue to do so far into the future.
To make it simpler, employers generally can restrict your speech while working. They just have to have clear and consistent policies. Things like the Hatch Act in Federal employment make this behavior clearly out of bounds.
"MAGA is shorthand for not only anti-Semitism, but white supremacy and literally disregarding election results." ... Not to mention bragging about committing sexual assault. As a (white) woman, I might not feel immediately threatened by a male co-worker wearing a MAGA hat to a cultural sensitivity training, but I sure as hell wouldn't get in a car alone with them after that.
I’ve been here long enough to know that Ken doesn’t do careless phrasing. It might be some legal bright line about literal versus implied meanings, though.
Also, if you think Ken is a MAGAt, you really haven’t been here long lol
I feel like Mr Dodge could have written an "Am I The Asshole" for prominently displaying the hat on the 2nd day and few, if any, people would have said he's not an asshole.
Wow. Every agency I have worked for has had a policy of no political apparel in the workplace. It’s not just a ban on MAGA hats, but also a ban on BERNIE hats. The point for me is there is no reason to needlessly upset the public, just be neutral and try not to offend. I think this is a really slippery slope and it is best to say ‘not in the workplace’.
They couldn't use that defense here because (1) they didn't have such a policy, and (2) the principal admitted other partisan/issue clothing was allowed.
I haven't worked on the state level, but I have on the Federal level. I believe it is specifically the Hatch act that bans Federal employees (or contractors) from political expression in the workplace.
Very informative piece and I love the use of "normal" to describe folks who don't clutch their pearls when someone espouses a political philosophy that differs from their own.
If Dodge had worn the hat while teaching his sixth grade class and been reprimanded similarly, would that would make his behavior part of carrying out his job duties, as opposed to private speech?
If so, would it then be unprotected? And would it matter if the principal were clearly discriminating according to the content of that speech? (E.g., reprimanding Dodge for wearing a MAGA hat but permitting other teachers to wear apparel in class that supports Democrats.)
I think the teacher might have missed a teachable moment. "Mr Dodge has chosen to be a dick today by bringing his MAGA hat to class, knowing full well it will piss many of you off. I encourage you to talk with him about this on the break, and let him know that while we don't enjoy his being a dick, we will all join together in defending his right to express his dickishness freely."
With respect to university professors, I know a public university professor was was chastised and belittled by the university president for taking a position (based on her area of expertise and scholarship) in a legislative committee hearing that was contrary to the state’s position. The issue was higher education. What if she said the same thing in class? What if her research would indicate the university president is misinformed, or let’s just say stupid.
I view it not as a 'free speech' issue, strictly because it comes down to me as an actionable take on free speech by someone who wanted to confront others with his hat-ie, his free speech of being a Trump supporter and making sure everyone knew it.
You cannot tell me he was unaware of how contentious that hat would be (although some people really are snowflakes in reaction to it..) or how others would view it.
True, you can say one can provoke with words and draw Free Speech arguments for or against them, but I think he was well aware of the possible controversy he would start by doing exactly what he did. Thus I think it was a deliberate act of instigating civil litigation.
The fact that it ended up in federal court (and I'm sure he has good lawyers) and has cost the government (IE the taxpayers and the school district) a lot of money to defend against it, is cause enough to believe it was a test case and he was just provoking it.
I know this might be insensible argument but that's my take on it. But I'm not a lawyer, either.
Some people just want to start a fight, no matter how right or wrong they are.
I think you're right, especially with your last statement. Dude knew what he was doing. To me, however, the lack of common sense comes in with people who had to make a big deal of it. Wearing a MAGA hat to cultural sensitivity was clearly an act of trolling, at least to me. And I would hope that most functional adults know better than to feed the trolls. Alas...
All of that said, Dodge is indeed the asshole, and on purpose it would seem.
I’m not aware of any successful use of the “I was just trolling” defense in relation to legally questionable speech in the workplace, whether public or private.
I have never taken a law class because my college Guidance Counselor said that although I "may" have the intelligence to be a lawyer, I did not have the appropriate attention to follow lines of discussion or written word.
Alas, I went into the financial services field were there was greater "lesser concerns for concepts" and I did quite well professionally and financially!
I appreciate your willingness to enlighten we non-legal types. It is a scary world!
"Here, Dodge’s wearing a MAGA hat wasn’t part of his job — it was purely private speech. So it was potentially protected."
If he was, say, distributing such hats (or condoms), would that be treated differently? Put a stack of them on his table with a sign that says "take one." But not say or do anything more.
Black Lives indeed do Matter! is a very mainstream political sentiment. If I were to have that on the back of my leather jacket, and folded it so that it showed, putting in on the table in front of the adamant trumper, it would be a bit provocative. Remember, he didn't just wear the hat, he purposely sat it on the table for people to see. It sounds very much like a challenge to the subject of the mandatory session-cultural sensitivity.
Probably the school district didn't think through its policy well in advance. In order to be productive, such a session has to ramp down partisan political framing, and they should have put some policies about partisan political statements/expression within the session in place in advance.
The principal hadn't properly done that and probably tried to retroactively do something, and did it badly. I'm expecting that if anyone described the MAGA hat guy as an asshole it wouldn't be defamatory, and also not grossly inaccurate. One may have a first amendment right to be an asshole, but it doesn't help in a cultural sensitivity workshop.
“the polite fiction that law enforcement officers are not racist”
Daaaaaaamn son
Speaking a s resident of the other Vancouver, please don't carpet-bomb Canada. We are mostly nice and even our politicians are not too radicalized. Thank you. And sorry for interrupting.
As a Southeastern American resident, I don't think carpet bombing the great frozen North is under consideration at the current time. We'll keep you updated.
"One day Canada will take over the world. Then you'll all be sorry."
*Kent Brockman voice* "I, for one, welcome our new Canadian overlords."
“ Had Dodge worn a “Jews Will Not Replace Us” hat, the result would have been different.”
So this incident took place before “MAGA” was understood to be a shorthand for that?
I only slightly kid. Wearing apparel from a campaign whose entire movement is based on cultural INsensitivity to a cultural sensitivity seminar feels like it deserves discipline, if not quite the level of meltdown recounted here.
Of course, I recognize that my feelings are not the law, and even that that’s a good thing. Usually.
No kidding required whatsoever. MAGA is shorthand for not only anti-Semitism, but white supremacy and literally disregarding election results. The idea that “normal” people can’t feel threatened by that is quite a carefully-constructed normal.
I’m a recent subscriber so I don’t know if that is just careless phrasing, or an indication of specific beliefs. I hope he reconsiders that paragraph a bit.
I'm quite sure it is not careless phrasing, but deliberate. A red MAGA hat doesn't threaten anyone; it sends various messages (one of which may be "I'm a total jerk"), but those messages are not real threats. Like Ken said, even the very liberal Ninth Circuit thought the teacher's crying because of the presence of a hat was ridiculous. People have the right to be jerks and have unpopular opinions, and we don't have to be friends with them.
I can’t yet reconcile that with the later sentence, “Had Dodge worn a “Jews Will Not Replace Us” hat, the result would have been different.” that’s also not a real threat, so why is it different?
You may believe that the hat doesn’t threaten anyone, but that requires that neither does a swastika armband. I can’t get to that conclusion.
I think the different, like Matthew says, is that MAGA is a phrase associated with a political movement, where as "the Jews Will Not Replace Us" is incitement or speech associated with incitement. It's the difference, IRL, between being a jerk to someone or using hateful language to incite––the former is protected, the latter is not.
I don't believe that's incitement, nor is incitement relevant here.
As I read the original post, in cases like this (where the government is wearing its "employer hat"), it can discipline an employee for political speech if that speech disrupts the workplace. Whether particular speech disrupts the workplace is a judgment call, and the Ninth Circuit decided that this MAGA hat did not disrupt the workplace. Popehat tells us the Ninth Circuit would have felt differently about a "Jews Will Not Replace Us" hat disrupting the workplace, which seems very likely. "Incitement" is not part of that discussion - because the government is wearing its employer hat for the purpose of this action, they just need to establish whether or not the MAGA hat disrupts the workplace.
This is what the "heckler's veto" part of the original post was about - hypothetically, a co-worker could absolutely lose their mind about the MAGA hat, and then claim that the hat disrupted the workplace.
The "Make America Great Again" phrase was used by the KKK, the same group who uses "Jews will not replace us."
How exactly is one political speech and not the other? And no, neither appears to be incitement.
One anticipates that the response here would be along the lines of, "no one but history geeks remembers that this phrase originated with the KKK."
Which to my mind puts the lie to any assertions that this situation should result in a reward for the MAGAt.
Because one is a phrase associated with a political movement. Some followers of that movement have done bad things (including the leader). But "MAGA" itself is protected political speech. "Jews will not replace us" is not protected political speech. That is the difference.
If "Jews will not replace us" were a phrase associated with a political movement, would that make it okay?
I believe the distinction Popehat is articulating hinges on whether or not that speech disrupts the workplace, because as he says, the government is wearing its employer hat in this case rather than its sovereign hat.
No, that would not be likely. Because it's singling out a specific group. So even if that were some parties slogan it wouldn't pass muster and could be sanctioned by their employer.
How do you decide something is political speech or not?
Make America Great Again.
Jews will not replace us.
Jeb!
Forward!
That's something the courts generally have to do. It's important to note that both are generally free to say online or elsewhere (though not free from potential consequences, such as incitement).
Here, it's pretty clear that since other political speech was allowed, not allowing a MAGA hat was wrongly infringing on the employees rights.
But phrases like "Jews will not replace us" are specifically targeting a group of people. Easily crosses a line. But each phrase/slogan would have to be evaluated (there were several tests applied here, including a reasonableness standard). Free speech is tough. Despite some free speech absloutists thinking that the first amendment is plainly written and should apply as broadly as possible, it's not that simple, and never has been since the states ratified it. The courts have wrestled with this issue since it's inception, and will continue to do so far into the future.
To make it simpler, employers generally can restrict your speech while working. They just have to have clear and consistent policies. Things like the Hatch Act in Federal employment make this behavior clearly out of bounds.
"MAGA is shorthand for not only anti-Semitism, but white supremacy and literally disregarding election results." ... Not to mention bragging about committing sexual assault. As a (white) woman, I might not feel immediately threatened by a male co-worker wearing a MAGA hat to a cultural sensitivity training, but I sure as hell wouldn't get in a car alone with them after that.
I’ve been here long enough to know that Ken doesn’t do careless phrasing. It might be some legal bright line about literal versus implied meanings, though.
Also, if you think Ken is a MAGAt, you really haven’t been here long lol
I feel like Mr Dodge could have written an "Am I The Asshole" for prominently displaying the hat on the 2nd day and few, if any, people would have said he's not an asshole.
Wow. Every agency I have worked for has had a policy of no political apparel in the workplace. It’s not just a ban on MAGA hats, but also a ban on BERNIE hats. The point for me is there is no reason to needlessly upset the public, just be neutral and try not to offend. I think this is a really slippery slope and it is best to say ‘not in the workplace’.
They couldn't use that defense here because (1) they didn't have such a policy, and (2) the principal admitted other partisan/issue clothing was allowed.
That kinda makes it sound like an unforced error on the part of the principal.
I haven't worked on the state level, but I have on the Federal level. I believe it is specifically the Hatch act that bans Federal employees (or contractors) from political expression in the workplace.
Very informative piece and I love the use of "normal" to describe folks who don't clutch their pearls when someone espouses a political philosophy that differs from their own.
The reaction to a MAGA hat is to roll your eyes and go about your day, same as a Che Guevara shirt.
Kinda makes me wonder how he treats students that aren't white males.
Thank you for explaining this.
If Dodge had worn the hat while teaching his sixth grade class and been reprimanded similarly, would that would make his behavior part of carrying out his job duties, as opposed to private speech?
If so, would it then be unprotected? And would it matter if the principal were clearly discriminating according to the content of that speech? (E.g., reprimanding Dodge for wearing a MAGA hat but permitting other teachers to wear apparel in class that supports Democrats.)
Yes, wearing it in class would likely be different, and yes, the viewpoint discrimination would be an issue.
Thanks!
Wait, it would? Isn't attending a training session part of his job duties? I don't understand the distinction.
In his 6th grade classroom he is the authority figure, in the training he is not.
As a “further restricted” employee under the Hatch Act I struggle to find my normal level of sympathy but for the one employee cried thing.
Though I tend to wonder if the summation of evidence omitted relevant information because we know such details always are included in the briefs 🤓
By any chance, was Mr. Dodge the reason they were in the mandatory cultural sensitivity training? 🤫
I think the teacher might have missed a teachable moment. "Mr Dodge has chosen to be a dick today by bringing his MAGA hat to class, knowing full well it will piss many of you off. I encourage you to talk with him about this on the break, and let him know that while we don't enjoy his being a dick, we will all join together in defending his right to express his dickishness freely."
With respect to university professors, I know a public university professor was was chastised and belittled by the university president for taking a position (based on her area of expertise and scholarship) in a legislative committee hearing that was contrary to the state’s position. The issue was higher education. What if she said the same thing in class? What if her research would indicate the university president is misinformed, or let’s just say stupid.
Or he could have just not worn the hat, you know?
Common sense doesn't apply to some of those people.
I think he knew what he was doing-baiting the bear and hoping it would bite.
Can’t that be said about any speech?
I view it not as a 'free speech' issue, strictly because it comes down to me as an actionable take on free speech by someone who wanted to confront others with his hat-ie, his free speech of being a Trump supporter and making sure everyone knew it.
You cannot tell me he was unaware of how contentious that hat would be (although some people really are snowflakes in reaction to it..) or how others would view it.
True, you can say one can provoke with words and draw Free Speech arguments for or against them, but I think he was well aware of the possible controversy he would start by doing exactly what he did. Thus I think it was a deliberate act of instigating civil litigation.
The fact that it ended up in federal court (and I'm sure he has good lawyers) and has cost the government (IE the taxpayers and the school district) a lot of money to defend against it, is cause enough to believe it was a test case and he was just provoking it.
I know this might be insensible argument but that's my take on it. But I'm not a lawyer, either.
Some people just want to start a fight, no matter how right or wrong they are.
Cohen didn't have to wear a 'Fuck the Draft' jacket.
And, if he was deliberately trying to instigate civil litigation, the principal didn't have to act like a complete idiot and take the bait.
intentionally trolling people is still protected speech
I think you're right, especially with your last statement. Dude knew what he was doing. To me, however, the lack of common sense comes in with people who had to make a big deal of it. Wearing a MAGA hat to cultural sensitivity was clearly an act of trolling, at least to me. And I would hope that most functional adults know better than to feed the trolls. Alas...
All of that said, Dodge is indeed the asshole, and on purpose it would seem.
I’m not aware of any successful use of the “I was just trolling” defense in relation to legally questionable speech in the workplace, whether public or private.
Nor am I. I didn't intend my comment to be any sort of speculation on Dodge's defense; just a guess re: his motivation.
Ken,
I have never taken a law class because my college Guidance Counselor said that although I "may" have the intelligence to be a lawyer, I did not have the appropriate attention to follow lines of discussion or written word.
Alas, I went into the financial services field were there was greater "lesser concerns for concepts" and I did quite well professionally and financially!
I appreciate your willingness to enlighten we non-legal types. It is a scary world!
"Here, Dodge’s wearing a MAGA hat wasn’t part of his job — it was purely private speech. So it was potentially protected."
If he was, say, distributing such hats (or condoms), would that be treated differently? Put a stack of them on his table with a sign that says "take one." But not say or do anything more.
Black Lives indeed do Matter! is a very mainstream political sentiment. If I were to have that on the back of my leather jacket, and folded it so that it showed, putting in on the table in front of the adamant trumper, it would be a bit provocative. Remember, he didn't just wear the hat, he purposely sat it on the table for people to see. It sounds very much like a challenge to the subject of the mandatory session-cultural sensitivity.
Probably the school district didn't think through its policy well in advance. In order to be productive, such a session has to ramp down partisan political framing, and they should have put some policies about partisan political statements/expression within the session in place in advance.
The principal hadn't properly done that and probably tried to retroactively do something, and did it badly. I'm expecting that if anyone described the MAGA hat guy as an asshole it wouldn't be defamatory, and also not grossly inaccurate. One may have a first amendment right to be an asshole, but it doesn't help in a cultural sensitivity workshop.