Notes:

The policy prohibits "any form of ... harassment because of race, color, religion, sex, age, disability, national origin, or status as a Vietnam era or disabled veteran." (J.A. at 42.) It specifies that harassment may take the form of "visual conduct such as derogatory posters, cartoons, drawings or gestures." (J.A. at 42.)

In early 2000, South Carolinians were involved in a heated debate about whether to remove the Confederate battle flag from atop their state capitol building. Dixon points out that this was "a burning issue in the State of South Carolina," during a "period of intense national scrutiny and public debate." (Appellant's Br. at 4.)

The relevant portions of the complaint read as follows:

FOR A FIRST CAUSE OF ACTION

(Violation of Constitutional Rights)

All of the pleadings previously alleged are hereby realleged and repeated and made a part of the pleadings contained herein.

SC Code § 16-17-560 states it is unlawful to discharge a citizen from employment because of the exercise of political rights and privileges guaranteed under the Constitution of the United States and this state. The First Amendment to the U.S. Constitution and S.C. Constitution Article I, Section 2, provide for freedom of speech, assembly and the right to redress of grievances

Plaintiff's termination arose from the exercise of his right of free speech to display the Confederate flag. Coburg violated the constitutional rights of its employee by its termination of Plaintiff

Coburg's termination of Plaintiff for display of the flag constitutes a violation of his constitutional rights entitling Plaintiff to an award for damages

. . .

FOR A THIRD CAUSE OF ACTION

(Violation of Public Policy)

All of the pleadings previously alleged are hereby realleged and repeated and made a part of the pleadings contained herein.

SC Code § 16-17-560 provides for a private civil cause of action where the wrongful discharge is a "crime against public policy."

The Defendant's termination of the Plaintiff for display of the Confederate flag. Defendant's actions constitute a violation of South Carolina criminal law and therefore a violation of the public policy of this State

Coburg's termination of Plaintiff for display of the flag constitutes a violation of this statute entitling Plaintiff to an award for damages

FOR A FOURTH CAUSE OF ACTION

(Retaliatory Discharge)

All of the pleadings previously alleged are hereby realleged and repeated and made a part of the pleadings contained herein.

Coburg's actions, through its agents attempts to control the content of Plaintiff's right of free speech through constant and repeated efforts to get him to abandon his constitutionally protected rights of free speech by demanding that he remove the flag from his tool box and then, ultimately, terminating him for exercise of that same right, constitute retaliatory discharge of Plaintiff

Coburg's termination of Plaintiff for retaliatory discharge entitles Plaintiff to an award for actual and punitive damages in an amount to be determined by the trier of fact

(J.A. at 12-14.)

The panel majority opinion reversed the grant of summary judgment on the first cause of action under the insubstantiality doctrine, holding that the district court lacked jurisdiction over the claimDixon v. Coburg Dairy, Inc., 330 F.3d 250, 255 (4th Cir.) (citing Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974)), vacated & reh'g en banc granted, (4th Cir. Sept. 16, 2003). The panel majority affirmed the district court's grant of summary judgment on the remaining causes of action. Id.

To the extent that Dixon's complaint can be interpreted as stating a cause of action based directly on the First Amendment, such a claim would be too insubstantial to invoke federal question jurisdiction because the First Amendment does not apply to private employersHagans v. Lavine, 415 U.S. 528, 536-37, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974) ("[F]ederal courts are without power to entertain claims otherwise within their jurisdiction if they are so attenuated and unsubstantial as to be absolutely devoid of merit, wholly insubstantial, obviously frivolous, plainly unsubstantial, or no longer open to discussion.") (internal quotation marks and citations omitted); see also Davis v. Pak, 856 F.2d 648, 651 (4th Cir.1988)(same).

Coburg also relies on "another underlying federal issue in this case — the scope and uniformity of Title VII of the Civil Rights Act." (Appellee's Br. at 17.) In essence, Coburg argues that Title VII, 42 U.S.C.A. § 2000e-2(a) (West), preempts Section 16-17-560, at least as Dixon interprets it to apply in this case. At most, Coburg has alleged conflict preemption. Because conflict preemption is a defense to a cause of action, the well-pleaded complaint rule bars its use as a foundation for federal question jurisdictionSonoco Products Co. v. Physicians Health Plan, Inc., 338 F.3d 366, 371 (4th Cir.2003) (citing Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987)).

MICHAEL, Circuit Judge, concurring in the judgment:

Because Matthew Dixon's complaint asserts only state law claims against his former employer, Coburg Dairy, Inc., I concur in the judgment to remand his case to South Carolina state court. Although some of Dixon's state law claims refer to the First Amendment, these claims do not "turn[] on [a] construction of federal law." Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986). That is because the First Amendment, as a matter of federal law, does not regulate the conduct of a private employer. See, e.g., Yatvin v. Madison Metro. School Dist., 840 F.2d 412, 420 (7th Cir.1988).

KING, Circuit Judge, concurring:

I concur in the view of my able colleague Judge Williams that the district court lacked subject matter jurisdiction to address this dispute, and I agree with her conclusion that its removal to federal court was improper. I write separately to highlight and adopt the reasoning of my friend Judge Goodwin of West Virginia, who served our Court on the panel that initially considered this jurisdictional issue. As he correctly recognized, the resolution of the Dixon complaint does not depend on any question of federal law. See Dixon v. Coburg Dairy, Inc., 330 F.3d 250, 266 (4th Cir.2003) (Goodwin, District Judge, sitting by designation, concurring in part and dissenting in part) (observing that question of whether Dixon was "exercising his First Amendment rights" cannot be answered under federal law), vacated & reh'g en banc granted, (4th Cir. Sept. 16, 2003). Although Judge Williams's analysis adheres to circuit precedent and achieves the proper result, Dixon's complaint does not even arguably give rise to federal jurisdiction. As I see it, section 16-17-560 of the South Carolina Code seeks to create a state law claim implicating the Constitution of the United States; South Carolina, however, is powerless to mandate the application of First Amendment jurisprudence in a federal proceeding where the alleged constitutional deprivation stems solely from private action.

A right secured by the First Amendment is never exercised in the abstract; rather, it may be infringed only when a state actor has sought or seeks to suppress protected expression. See, e.g., CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 114, 93 S. Ct. 2080, 36 L. Ed. 2d 772 (1973) (holding that First Amendment restrains "government action, not that of private persons"). In this situation, no state actor was involved in Dixon's discharge, and thus his First Amendment rights could not have been contravened. Given these circumstances, Dixon's complaint cannot be read to establish federal question jurisdiction. And as Judge Goodwin explained, "one cannot determine whether a specific expressive activity is an `exercise of First Amendment rights' without reference to a state actor who is trying to suppress that expressive activity." Dixon, 330 F.3d at 266. This is therefore a state law dispute only, with no federal jurisprudential counterpart.

Pursuant to the foregoing, I am pleased to concur.

GREGORY, Circuit Judge, concurring in the judgment:

I agree with the majority's application of Merrell Dow and Christianson in Part III-A of its opinion, therefore I concur in the judgment. I write separately, however, to briefly address an important issue raised by Appellee Coburg Dairy and Amicus Curiae Equal Employment Advisory Council, namely the potential clash between an employer's duties and liabilities under Title VII, 42 U.S.C. § 2000e et seq., and those which purportedly flow from S.C.Code Ann. § 16-17-560 if the statute applies in the manner that Mr. Dixon advocates.

I.

A.

Before the district court, see Def.'s Mem. Supp. Mot. Summ. J. at 3-12, and to a lesser extent on appeal, see Br. of Appellee at 17-19, Coburg attempted to ground its "arising under" arguments in a federal interest stemming from Title VII. Title VII of the Civil Rights Act of 1964 prohibits discrimination by an employer against a covered individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin...." 42 U.S.C. § 2000e-2(a)(1). At the district court, Coburg Dairy presented a lengthy discussion of the conflict it perceives between its affirmative duties under Title VII to provide a workplace free of discrimination and the opposite results that might flow from Mr. Dixon's favored interpretation1 of the South Carolina Code. See Def.'s Mem. Supp. Mot. Summ. J. at 6-7 (arguing Dixon's "daily display of the flags plainly could have triggered Title VII liability" thus Coburg had a duty to remedy such potential work-place harassment, therefore it "end[ed] the alleged harassment" and took the opportunity "to limit or eliminate any potential liability for it"); id. at 8 ("Coburg, motivated by its duty under Title VII, opted to end Plaintiff's employment."). Moreover, Coburg argued that S.C.Code Ann. § 16-17-560 is preempted by Title VII. Id. at 8.2 Likewise, on appeal, Coburg argues that "Dixon's violation of constitutional rights claim is preempted by Title VII because it aims to curtail the protections afforded by that statute and the cases interpreting it.... [P]ermitting his claim to proceed in state court poses a real risk to uniform enforcement of Title VII." Br. of Appellee at 17. In short, Coburg argues that S.C.Code Ann. § 16-17-560, which under Dixon's interpretation requires employees to carve out a safe space for the Confederate battle flag,3 conflicts with an employer's affirmative duty to provide a harassment-free workplace under Title VII. See Faragher v. City of Boca Raton, 524 U.S. 775, 806, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) (stating Title VII's "`primary objective', like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm" (citation omitted)); id. (stating employers have an "affirmative obligation to prevent violations").

Coburg states that to prevent harassment in the workplace and to avoid charges of a hostile work environment, it has implemented an anti-harassment policy through which it investigates and responds to employee complaints. In this case, one of Dixon's Black co-workers was offended by Dixon's Confederate battle flag stickers and asked Dixon to remove them. When Dixon refused, the Black co-worker informed Coburg that he found the Confederate battle flags Dixon displayed to be racially offensive and in violation of the company's anti-harassment policy. As a result, Coburg investigated the complaint and "t[ook] prompt and adequate action to stop" the offensive conduct after being placed on notice. Mikels v. City of Durham, 183 F.3d 323, 332 (4th Cir.1999). Coburg and Amicus Curiae Equal Employment Advisory Council assert that the South Carolina Code places a burdensome competing duty on employers. On the one hand, under Title VII, an employer must provide a harassment-free workplace. On the other, if Mr. Dixon's interpretation of S.C.Code Ann. § 16-17-560 prevails, the employer must allow employees to display symbols, like the Confederate battle flag, which other employees find offensive, harassing and emblematic of racial subordination. While, as Coburg admits, supra note 8, this partial preemption argument does not support federal jurisdiction, if Mr. Dixon's interpretation of the South Carolina statute is correct then the statute surely invites conflict with federal anti-discrimination law.4

B.

If indeed South Carolina has carved out this safe haven for the Confederate flag, such action threatens to undermine the federal protections that individuals possess to be free of discrimination in the workplace. See Br. of Appellee at 18 (stating that employers will have to "pick their poison. They can choose to provide a harassment-free workplace by barring expressions of allegedly constitutionally protected but arguably harassing opinions and material ... and get sued by that employee for violating Section 16-17-560. Or they can submit to the logic of Section 16-17-560 ... and face a lawsuit alleging the creation of an ethnically and religiously hostile work environment in violation of Title VII."); Br. of Amicus Curiae Equal Employment Advisory Council at 21 ("At the core of Title VII compliance is the concept of proactive prevention."). It is unclear whether a single Confederate flag — or a set of decals — displayed in the workplace would support a Title VII claim. Cf. Burrell v. Crown Cent. Petroleum, Inc., 255 F. Supp. 2d 591, 613-614 (E.D.Tex.2003) (discussing employee's hostile work environment claim based on supervisor's confederate flag and picture of himself in confederate uniform, but granting summary judgment for defendant because plaintiff failed to report the incident to employer); Gonzalez v. Fla. Dep't of Highway Safety & Motor Vehicles Div. of Fla. Highway Patrol, 237 F. Supp. 2d 1338, 1354-55 (S.D.Fla.2002) (granting summary judgment for defendant on plaintiff's hostile work environment claim, founded in part on co-worker's display of Confederate flag, because Plaintiff was not "directly exposed" to the symbol). If Mr. Dixon's interpretation of South Carolina's protection of one's right to display the flag in the workplace is correct, however, then presumably a situation could arise where a workplace becomes saturated with such symbols, thus causing conflict with the federal statute. For example, one may envision a situation whereby a South Carolina shop employs a single Black laborer in a workforce of twenty. If every one of the nineteen white workers displays the flag, invoking the protections of the South Carolina statute in the manner that Mr. Dixon advocates, and the single Black worker filed a Title VII claim alleging a hostile work environment, I do not believe the claim would be considered frivolous. Cf. Augustus v. Sch. Bd. of Escambia County, 361 F. Supp. 383, 389 (N.D.Fla.1973) (finding the use of the Confederate battle flag by white students comparable to fighting words, as it became a source of violence and disruption, and the flag was "specially dangerous in light of the numerical strength of the white students"), modified by 507 F.2d 152 (5th Cir.1975).

To understand why such an environment, or even a workplace with a less prevalence of the symbol, might be offensive or even hostile to some, I believe it is necessary to revisit the nature of the symbol. We have previously recognized the representations inherent in displaying the Confederate flag, stating:

It is the sincerely held view of many Americans, of all races, that the confederate flag is a symbol of racial separation and oppression. And, unfortunately, as uncomfortable as it is to admit, there are still those today who affirm allegiance to the confederate flag precisely because, for them, that flag is identified with racial separation. Because there are citizens who not only continue to hold separatist views, but who revere the confederate flag precisely for its symbolism of those views, it is not an irrational inference that one who displays the confederate flag may harbor racial bias against African-Americans.

United States v. Blanding, 250 F.3d 858, 861 (4th Cir.2001); see also Sons of Confederate Veterans, Inc. v. Comm'r of Va. Dep't of Motor Vehicles, 305 F.3d 241, 242 (4th Cir.2002) (Wilkinson, C.J.) (concurring in the denial of rehearing en banc) ("The vast majority of Virginians understand that one['s] proclamation of heritage is another's reminder of the unspeakable cruelties of human bondage. The vast majority of Virginians recognize the sad paradox of Confederate history — namely that individual southerners, so many good and decent in themselves, swore allegiance to a cause that thankfully was lost, and to practices that no society should have sought to defend.") (hereinafter SCV). While those comments are eloquent and directly on point, I find the Confederate battle flag needs further contextualization within the greater narrative of the Civil War, the Confederacy and the flag's revival as a symbol of racial polarization during the middle of the last century to illustrate why many viewers find it offensive.

During the Civil War, those fighting under the flag of the United States — the same flag our men and women have fought under since the Continental Congress adopted it on June 14, 1777 — suffered nearly 650,000 casualties while combating Southern forces fighting under the Confederate battle flag. See United States Department of Defense, Principal Wars in which the United States Participated: U.S. Military Personnel Serving and Casualties, available at http:// web1.whs.osd.mil/mmid/casualty/WCPRINCIPAL.pdf. Since the war, many people, likewise good and decent themselves, have proclaimed the Confederate flags as symbols of pride, of heritage not hate. Mr. Dixon states: "He has a keen interest in his family's geneology [sic].... His ancestors fought and died under the Confederate battle flag for a cause in which they believed." Compl. ¶ 4 (emphasis added). However, we cannot wholly divorce the flying of the flag from the system of beliefs and those practices — which as Judge Wilkinson stated "no society should have sought to defend," SCV, supra — that undergirded the Confederacy, including racial subordination and slavery. While many Southerners unquestionably embrace the flag, not out of malice or continued belief in racial subordination, but out of genuine respect for their ancestors, we must also acknowledge that some minorities and other individuals feel offended, threatened or harassed by the symbol. Unfortunately, to its supporters at the time of its creation as well as some proponents today, see Blanding, supra, the Confederate flag undeniably represented, and represents, support for slavery, belief in Blacks as an inferior class, and opposition to the Republic.5 Over the years since the war, some have attempted to divorce the Confederate flags from their intimate connections to these principles of subordination, but for many viewers of the symbol such a disconnect is impossible because of the historical facts and the overwhelming negative connotations which continue to flow therefrom.

Some attempts to disgorge the Confederate flag of its negative content associated with the bleak realities of the Civil War and Jim Crow can be explained by the romanticism of what has been termed "Lost Cause" ideology.6 Since the war's end, Lost Cause proponents have cast the Civil War as a continuation of the revolution of 1776 — a noble revolution against a despotic Northern regime, a battle for sovereignty in tune with America's core constitutional principles, clothed in the language of states' rights and Jefferson Davis's pleas for "Southern honor." See generally Jefferson Davis, The Rise and Fall of the Confederate Government (1881); Edward A. Pollard, The Lost Cause (1866); Douglas Southall Freeman, The South to Posterity: An Introduction to the Writing of Confederal History (1939); Gaines M. Foster, Ghosts of the Confederacy: Defeat, the Lost Cause, and the Emergence of the New South, 1865 to 1913 (1987). Yet no matter how noble these proponents of the ideology attempted to make the Lost Cause seem, they have had difficulty divorcing it from slavery, white supremacy and the beginnings of Jim Crow and American Apartheid. As Pollard wrote in 1868's The Lost Cause Regained, in which he urged reconciliation with conservative Northerners, "[t]o the extent of securing the supremacy of the white man ... and the traditional liberties of the country ... She [the South] really triumphs in the true cause of the war." Quoted in David W. Blight, Race and Reunion: The Civil War in American Memory 260 (2001) (internal quotation marks omitted).

Indeed, many offended by the Confederate flag find more current connections to oppression as the flag became an unfortunate symbol of the South's resistance to integration and equality from the late 1940s through the 1960s. For example, Georgia incorporated the Confederate battle flag into its state flag in 1956 "during a regrettable period in Georgia's history when its public leaders were implementing a campaign of massive resistance to the Supreme Court's school desegregation rulings." Coleman v. Miller, 117 F.3d 527, 528 (11th Cir.1997) (per curiam) (discussing the history of the Georgia flag and stating the Georgia legislature "chose as an official state symbol an emblem that historically had been associated with white supremacy and resistance to federal authority" (emphasis added)). South Carolina began flying the Confederate flag above the State Capitol in 1962. See Sue Anne Pressley, Flag War Isn't Over at Carolina Statehouse, Wash. Post, Jan. 16, 2001, at A3 ("When the flag went up, supporters said its purpose was to celebrate the Civil War centennial, but critics said its presence had more to do with opposition to the integration of schools then underway throughout the South."). Furthermore, much more recently the flag has continued to be associated with racial intolerance.7

Against this historical backdrop, it becomes more apparent why co-workers might feel offended, harassed and even threatened by the Confederate battle flag in the workplace, even if those who display the flag do so with no ill will. Thus, if Mr. Dixon's reading of the protections afforded by § 16-17-560 has merit, the Title VII concerns raised by Coburg Dairy and the employers comprising the Equal Employment Advisory Council seem particularly significant.

Notes:

Dixon argues that his display of the flag in the workplace is "protected symbolic speech that is `guaranteed to every citizen by the Constitution and laws of [South Carolina].'" Br. of Appellant at 28 (quoting S.C.Code Ann. § 16-17-560)

Coburg presented these arguments through a federal preemption defense, however, rather than a declaratory judgment action, and such a defense is insufficient to obtain federal jurisdictionSee Caterpillar Inc. v. Williams, 482 U.S. 386, 391-93, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987) (holding that ordinarily a case may not be removed on the basis of a federal defense unless the "complete preemption doctrine" applies); California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 282-84, 107 S. Ct. 683, 93 L. Ed. 2d 613 (1987) (holding Title VII only preempts state law inconsistent with it). On appeal, Coburg admits the "preemption defense to Dixon's claim could [not] by itself warrant federal jurisdiction.... [But] is further proof of the substantial federal issues at stake...." Br. of Appellee at 17 n.6 (citations omitted).

Dixon proffers that the Confederate battle flag is an official symbol of South CarolinaSee Br. of Appellant at 27 (citing S.C.Code Ann. §§ 1-10-10, 16-17-560, 16-17-220, 10-1-160). He argues that any limitation on one's right to display that symbol constitutes a violation of S.C.Code Ann. § 16-17-560.

At oral argument, Dixon's counsel acknowledged that the South Carolina statute creates "liberties" different than what the federal law allows: "South Carolina has been routinely the scapegoat of civil libertarian groups in the country. Finally, South Carolina is on the cutting edge of extending civil liberties and rights beyond the governmental workplace, but to the private workplace. Well beyond what the federal government has done, well beyond what other states have done by extending some civil liberties in the private workplace." (Recording of Oral Argument, December 2, 2003, Appellant's Rebuttal Argument.)

On March 21, 1861, newly elected Vice-President of the Confederacy Alexander H. Stephens gave a speech in Savannah, Georgia in which he stated:

[T]he new [Confederate] Constitution has put at rest forever all the agitating questions relating to our peculiar institutions —

African slavery as it exists among us — the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution..... Those ideas [of the United States Constitution], however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the idea of a Government built upon it — when the "storm came and the wind blew, it fell."

Our new Government is founded upon exactly the opposite ideas; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and moral condition. [Applause.] This, our new Government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.

Alexander H. Stephens, Cornerstone Address, March 21, 1861, in 1 The Rebellion Record: A Diary of American Events with Documents Narratives, Illustrative Incidents, Poetry, etc. 44-46 (Frank Moore ed., 1862), reprinted in Paul Halsall, Internet Modern History Sourcebook, available at http://www.fordham.edu/halsall/mod/1861stephens.html. While in provisions such as the three-fifths clause the United States Constitution is undeniably problematic in its inability to confront the problems of race, the Confederate Constitution was overtly racist. For example, it prohibited the enactment of any law "denying or impairing the right of property in Negro slaves," Confederate Const. art. I, § 9, cl. 4, and required that escaped slaves be surrendered to their owners upon request, id. art. IV, § 2, cl. 3. See generally Paul Finkelman, Affirmative Action for the Master Class: The Creation of the Proslavery Constitution, 32 Akron L.Rev. 423 (1999).

Alan T. Nolan summarizes Lost Cause ideology as follows: "[T]he Lost Cause was expressly a rationalization.... One reason for this was `the need to justify the existence of slavery... even before the abolitionist attack from the North, Southerners began the defense of slavery as a social system that provided unique benefits, both for the slaves whom it placed under the fatherly care of a superior race and for the master who was given the freedom from toil necessary to the creation of a superior culture.'" Alan T. NolanThe Anatomy of the Myth, in The Myth of the Lost Cause and Civil War History 11, 14 (Gary W. Gallagher & Alan T. Nolan eds., 2000); see also Brown v. Bd. of Sch. Comm'rs of Mobile County, 542 F. Supp. 1078, 1094 n. 14 (S.D.Ala.1982) ("The South, having given all it had in the destructive Civil War, had little to show for it but `The Lost Cause'. In the course of the next two decades, the `lost cause' would be elevated to one of the most enduring myths of history, one that enabled the South to keep the blacks in their place, out of public office and out of the voting booth...."), aff'd, 706 F.2d 1103 (11th Cir.1983).

See, e.g., Christopher Schwarzen, 2 Teens Charged in Cross Burning: Youths Reportedly Had Targeted Black Pastor's Son, Seattle Times, Apr. 1, 2004, at B3 (noting detectives investigating cross burning viewed pictures drawn by the accused teens including depictions of "Confederate flags with captions reading `White Pride' and lynching victims dangling from trees").