Rehearing en banc granted by order filed
9/16/03. Opinion filed 5/30/03 is vacated.
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
MATTHEW DIXON,
Plaintiff-Appellant,
v. No. 02-1266
COBURG DAIRY, INCORPORATED,
Defendant-Appellee.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
C. Weston Houck, District Judge.
(CA-01-53-2-12)
Argued: December 4, 2002
Decided: May 30, 2003
Before GREGORY, Circuit Judge, Joseph R. GOODWIN,
United States District Judge for the Southern District of
West Virginia, sitting by designation, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
____________________________________________________________
Affirmed in part and reversed in part by published opinion. Judge
Gregory wrote the opinion, in which Senior Judge Michael joined.
Judge Goodwin wrote an opinion concurring in part and dissenting in
part.
____________________________________________________________
COUNSEL
ARGUED: Samuel Wilson Howell, IV, HOWELL & LINKOUS,
L.L.C., Charleston, South Carolina, for Appellant. J. Thomas Kil-
patrick, ALSTON & BIRD, L.L.P., Atlanta, Georgia, for Appellee.
ON BRIEF: Alan B. Linkous, HOWELL & LINKOUS, L.L.C.,
Charleston, South Carolina; Mikell R. Scarborough, Charleston,
South Carolina, for Appellant. Christopher S. Enloe, ALSTON &
BIRD, L.L.P., Atlanta, Georgia, for Appellee.
____________________________________________________________
OPINION
GREGORY, Circuit Judge:
Matthew Dixon, an employee of Coburg Dairy, Inc., was asked by
his employer to remove two Confederate flag stickers from his tool
box after an African-American co-worker complained. Dixon refused
to remove the stickers, and Coburg, relying on the company's anti-
harassment policy, fired Dixon. Dixon then filed suit in South Caro-
lina state court, alleging wrongful discharge and a "Violation of Con-
stitutional Rights." Coburg removed the case to federal court on the
ground that Dixon's complaint necessarily depended on the resolution
of a substantial question of federal law. Dixon filed a motion to
remand, which the district court denied. The district court then
granted Coburg's motion for summary judgment and dismissed the
case. Dixon appeals both of the district court's rulings. For the rea-
sons discussed below, we affirm in part and reverse in part.
I.
In April 1997, in Charleston, South Carolina, Matthew Dixon,
began his employment as a mechanic with Coburg Dairy, Inc.,
("Coburg"). In April 2000, Dixon was given a copy of Coburg's pol-
icy prohibiting harassment. The policy explained that "[h]arassment
may take many forms, including . . . [v]isual conduct such as deroga-
tory posters, cartoons, drawings, or gestures." The policy also warned
employees that anyone "who behaves in a manner that is inconsistent
with this policy will be subject to discipline up to and including termi-
nation."
Dixon is an active member of the Sons of Confederate Veterans
("SCV"), an all-male organization whose members "can prove genea-
2
logically that one of their ancestors served honorably in the armed
forces of the Confederate States of America." Sons of Confederate
Veterans v. Comm'r of the Va. Dep't of Motor Vehicles, 288 F.3d
610, 613 n.1 (4th Cir. 2002). Beginning in January 2000, a conflict
developed among South Carolinians over whether to remove the Con-
federate battle flag from atop their state capitol dome. As Dixon
notes, this conflict became "a burning issue in the State of South Car-
olina," marking a "period of intense national scrutiny and public
debate." (Br. for Appellant at 4.)
It was in this context that Dixon placed two Confederate battle flag
stickers on his personal tool box. One was visible on the outside of
the box; the other was inside the box, but visible when the box was
open. Dixon used the tool box and displayed both flag stickers while
at work inside the Coburg Dairy garage. An African-American co-
worker, Leroy Garner, confronted Dixon and informed him that he
found the stickers racially offensive and a violation of Coburg's
harassment policy. Dixon disagreed, maintaining that his display of
the stickers did not violate Coburg's policies and, notwithstanding
any policy to the contrary, that it was his constitutional right to dis-
play the flag. Thereafter, Dixon, Garner, and Coburg attempted to
mediate a compromise. Coburg offered to buy Dixon a new,
unadorned tool box, allowing him to keep his previously decorated
box for home use. Dixon responded that his heritage was "not for
sale." In the end, Coburg insisted that the stickers be removed, and
Dixon refused. Having reached an impasse, Coburg fired Dixon on
September 5, 2000, on the ground that he had violated the company's
anti-harassment policy.
Dixon filed a nine-count complaint in South Carolina state court.
Count I, titled a "Violation of Constitutional Rights," alleged that
"Coburg violated the constitutional rights of its employee by its termi-
nation of Plaintiff." In Count III, Dixon stated a claim for "Violation
of Public Policy" based on S.C. Code Ann. § 16-17-560 (2002). He
alleged that he was fired for displaying the Confederate flag, and that
this action "constitute[d] a violation of South Carolina criminal law
and therefore a violation of the public policy of this State." Premised
on these same facts, Dixon articulated a claim in Count IV for retalia-
tory discharge.
3
Insisting that Counts I, III, and IV raised substantial questions of
federal law, Coburg removed the case to federal court. Dixon filed a
motion to remand, which the district court denied. The parties then
filed cross-motions for summary judgment. The district court granted
Coburg's motion for summary judgment and dismissed the case. This
appeal followed.
II.
Whether federal subject matter jurisdiction exists is a question of
law that this Court reviews de novo. Mulcahey v. Organic Chemicals
Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). The grant of a motion for
summary judgment is also reviewed de novo. Hooven-Lewis v. Cal-
dera, 249 F.3d 259, 265 (4th Cir. 2001).
III.
A.
Coburg's removal to district court was based on 28 U.S.C. § 1331
(2001), giving federal courts original jurisdiction over "all civil
actions arising under the Constitution, laws, or treaties of the United
States." Count I of Dixon's complaint is titled, "Violation of Constitu-
tional Rights," and asserts a claim based upon"[t]he First Amend-
ment to the U.S. Constitution." Dixon maintains in this count that
"Coburg violated the constitutional rights of its employee by its termi-
nation of Plaintiff," and he concludes, "Coburg's termination of Plain-
tiff for display of the flag constitutes a violation of his constitutional
rights entitling Plaintiff to an award for damages." At its core, Count
I appears to require a determination as to whether Coburg's actions
amount to a violation of Dixon's free speech right under the United
States Constitution. This appearance, however, is illusory, as Dixon
concedes that the First Amendment protects citizens only from gov-
ernment or State interference with their rights to free speech, see
Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982), and further con-
cedes that Coburg Dairy is not a state actor.
"[F]ederal courts are without power to entertain claims otherwise
within their jurisdiction if they are `so attenuated and insubstantial as
4
to be absolutely devoid of merit'. . . ." Hagans v. Lavine, 415 U.S.
528, 537 (1974) (internal citations omitted). At the same time, how-
ever, "`Jurisdiction . . . is not defeated . . . by the possibility that the
averments might fail to state a cause of action on which [a plaintiff]
could actually recover. For it is well settled that the failure to state a
proper cause of action calls for a judgment on the merits and not for
a dismissal for want of jurisdiction." Id. at 542 (quoting Bell v. Hood,
327 U.S. 678, 682 (1946)). Thus, before assuming jurisdiction over
Dixon's case based on a supposed federal cause of action in Count I,
we must determine if the insubstantiality doctrine deprives us of juris-
diction to even consider this claim.
In Bell v. Hood, the Supreme Court explained:
The previously carved out exceptions are that a suit may
sometimes be dismissed for want of jurisdiction where the
alleged claim under the Constitution or federal states clearly
appears to be immaterial and made solely for the purpose of
obtaining jurisdiction or where such a claim is wholly
insubstantial and frivolous.
Id. at 682-83 (emphasis added). As this quotation suggests, the insub-
stantiality doctrine is best (though not exclusively) applied in cases
where the plaintiff has attempted to abuse Rule 8's liberal pleading
requirements by drafting a complaint that appears on the surface,
though not in substance, to rely upon a question of federal law. This
reading of the rule is supported by this Circuit's decision in Lovern
v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999), where we observed,
"As we warned in Davis [v. Pak, 856 F.2d 648, 651 (4th Cir. 1988)],
federal courts must guard against the litigant who frames a pretextual
issue solely for the purpose of having a state-law claim adjudicated
in the federal system; Article III of the Constitution forbids this prac-
tice."
The Bell Court has further commented that the insubstantiality doc-
trine is a disfavored rule, and "[t]he accuracy of calling these dismiss-
als jurisdictional has been questioned." 327 U.S. at 683 (citing Justice
Holmes' ruling in The Fair v. Kohler Die and Specialty Co., 228 U.S.
22 (1913)). In the past, we have invoked the insubstantiality doctrine
sparingly, see Larch v. Eastern Band of Cherokee Indians, 872 F.2d
5
66, 68 (4th Cir. 1989) (noting that "[t]he Tribe's complaint satisfie[d]
th[e] relatively low jurisdictional threshold imposed by the doctrine"),
and only in cases where a plaintiff has drafted a frivolous count solely
for the purpose of filing a claim in federal court. See Davis, 856 F.2d
648; Lovern, 190 F.3d 648; Goldsmith v. Baltimore, 845 F.2d 61 (4th
Cir. 1988); Holloway v. Schweiker, 724 F.2d 1102 (4th Cir. 1984).
Still, the insubstantiality doctrine seeks to do more than prevent
plaintiffs from engaging in forum shopping. More fundamentally, the
rule ensures that federal courts assert jurisdiction solely over live
cases and controversies. See U.S. Const. art. III, § 2. Where a claim
is "so attenuated and insubstantial, obviously frivolous, plainly insub-
stantial, or no longer open to discussion," there is no controversy for
a federal court to adjudicate. Davis, 856 F.2d at 650-51 (quoting
Hagans, 415 U.S. at 536-37). To this point, the Appellant argues,
"[T]here are no federal causes of action available to Dixon under the
facts of this case," an observation which is undoubtedly true. As
stated above, Count I is not cognizable under 42 U.S.C. § 1983
because Coburg is not a state actor. Additionally, Dixon has no claim
under 42 U.S.C. § 1981 because there is no suggestion that he was
treated differently by Coburg on account of his race. By conceding
each of these points, Dixon has failed to allege any cause of action
in Count I. Accordingly, the claim does not present us with a contro-
versy that we might even attempt to resolve.
Despite the lack of any federal claim in Count I, this Court may
still retain jurisdiction over the remainder of the case if the state
causes of action alleged in Counts III and IV "`necessarily depend[ ]
on the resolution of a substantial question of federal law.'" Mulcahey
v. Organic Chem. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994) (quoting
Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 28
(1983)). In Franchise Tax Board, the Supreme Court held that "unless
it appears that some substantial, disputed question of federal law is a
necessary element of one of the well-pleaded state claims," federal
question jurisdiction does not exist. 463 U.S. at 13. The Fourth Cir-
cuit has explained, "[I]f `the right set up by [a] party may be defeated
by one construction of the constitution or law of the United States,
and sustained by the opposite construction,' jurisdiction can be had
in the federal courts." Ormet Corp. v. Ohio Power Co., 98 F.3d 799,
806 (4th Cir. 1996). That is, the claim containing the federal issue
6
must rise or fall on the resolution of that federal issue. If federal law
merely forms an element of a state cause of action, that may be insuf-
ficient to give rise to federal question jurisdiction if the case actually
turns on other, purely state-law elements of the claim. See Clark v.
Velsicol Chemical Corp., 944 F.2d 196, 198 (4th Cir. 1991)
("Application of the particular federal statute in this case would
remain but an element in plaintiff's state negligence action and cannot
give rise to federal question jurisdiction.").
To prevail on Count III, Dixon would be required to show that: (1)
he exercised a political right or privilege that is "guaranteed to every
citizen by the Constitution and laws of the United States or by the
Constitution and laws of this State"; and (2) he was later discharged
for exercising that right or privilege. S.C. Code Ann. § 16-17-560.1
The parties stipulated to all of the material facts before filing their
respective motions for summary judgment, and Coburg concedes that
it fired Dixon solely because he refused to remove the Confederate
flag stickers from his tool box. Thus, causation is not an issue. The
only question is whether the First Amendment protects Dixon's right
to display the Confederate flag as he chose to display it.2 Accordingly,
the claim necessarily depends upon the resolution of a question of
federal law.
____________________________________________________________
1
Under South Carolina law, an employer can usually discharge an
employee "without incurring liability for good reason, no reason, or bad
reason." Culler v. Blue Ridge Elec. Coop., Inc., 422 S.E.2d 91, 92 (S.C.
1992). However, where the discharge of an employee violates "a clear
mandate of public policy, a cause of action in tort for wrongful discharge
arises." Ludwick v. This Minute of Carolina, Inc., 337 S.E.2d 213, 216
(S.C. 1985). The state supreme court, in Culler, held that this public pol-
icy rule applies when an employer violates S.C. Code § 16-17-560. The
court reasoned, "We believe that Ludwick's prohibition of retaliatory dis-
charge in violation of [a] clear mandate of public policy of this State
extends at least to legislatively defined `Crimes Against Public Policy.'"
Culler, 422 S.E.2d at 92-93.
2
The Free Speech Clause of the First Amendment is mirrored in article
1, section 2 of the South Carolina Constitution, and the language of the
state clause tracks the federal, constitutional language verbatim. As such,
the South Carolina Supreme Court has held that its state constitution "af-
fords the same protections as does the Federal constitution." Charleston
Joint Venture v. McPherson, 417 S.E.2d 544, 548 n.7 (S.C. 1992).
7
The dissent, while conceding that "principles of federal First
Amendment law still control the outcome of the case," would find
that we lack jurisdiction based on a distinction "between the incorpo-
ration of a federal question into a state statute and the mere use of fed-
eral law principles, by way of analogy, to resolve an otherwise purely
state-law question." Post at 26. Had the South Carolina legislature
merely referenced federal law by way of analogy, as other states have
done in the context of state anti-discrimination laws, see post at 26,
or state antitrust laws, see, e.g., Natural Design, Inc. v. Rouse Co.,
485 A.2d 663, 666 (Md. 1984) (holding that "decisions of the federal
courts interpreting § 1 of the Sherman Act guide" the Maryland
courts' understanding of the Maryland Antitrust Act), we would agree
with the dissent that no federal issue would be present.
However, we do not read the South Carolina statute to support such
a distinction, and in fact, Dixon concedes that"[f]ederal law is an ele-
ment" of his cause of action under S.C. Code Ann. § 16-17-560. (Br.
for Appellant, at 11.) Although it may be difficult to define the exer-
cise of a First Amendment right in the abstract, there can be no doubt
that this is precisely the type of analysis that the South Carolina legis-
lature has intended courts to undertake. The statute makes it unlawful
"for a person to . . . discharge a citizen from employment or occupa-
tion . . . because of political opinions or the exercise of political rights
and privileges guaranteed to every citizen by the Constitution and
laws of the United States. . . ." S.C. Code Ann. § 16-17-560 (emphasis
added). Federal law has not merely been referenced by analogy; it has
been wholly incorporated into the statute, and made a critical element
of a cause of action. For Dixon to prevail, he must prove that he has
exercised a political right protected "by the Constitution and laws of
the United States."
Reviewing the relevant South Carolina case law, we find additional
support for this reading of the statute. In Culler v. Blue Ridge Electri-
cal Cooperative, Inc., 422 S.E.2d 91 (S.C. 1992), the Supreme Court
of South Carolina first recognized that a discharged employee may
sue his employer for violation of § 16-17-560. Based on the public
policy exception to the at-will employment doctrine, the South Caro-
lina court held that "if Culler was discharged because he refused to
contribute to a political action fund, he would have a cause of action
for wrongful discharge. . . ." Id. at 93. The Culler court's straightfor-
8
ward analysis is illustrative of its understanding that actions based on
§ 16-17-560 require a plaintiff simply to prove two elements: (1)
whether the employee has articulated a political opinion or exercised
a political right; and (2) whether the employee was discharged as a
result.3 In Culler, the court recognized that refusing to contribute to
the PAC would satisfy the first element, but because Culler was not
terminated for his refusal, his claim failed at the second step. Id. at
93.
Similarly, in Moshtaghi v. The Citadel, the Court of Appeals of
South Carolina considered the claim of an adjunct professor who
insisted that the military college "violated public policy through
`reprisal for the exercise of rights of [Moshtaghi] protected by the
Constitution of the State of South Carolina,'" specifically, his "consti-
tutionally protected free speech rights" under the state constitution.
443 S.E.2d 915, 323 (1994) (alterations in original). As in Culler, the
court assumed that Moshtaghi could satisfy the first prong because
"[i]t is undisputed [that] the South Carolina Constitution provides for
freedom of speech, of assembly, and the right to petition the govern-
ment for redress of grievances." Id. However, the court dismissed
Moshtaghi's claim at the second stage of its analysis because the trial
court had found that "Moshtaghi was not terminated because of his
involvement with the Board of Visitors election controversy." Id. at
323-24.
Additionally, this Court finds persuasive the reasoning of our col-
league, Judge Shedd, in Williams v. Strickland, No. 3:92-515-19,
1993 WL 153915 (D. S.C. Mar. 12, 1993) (unpublished). In Williams,
the district court considered a superficially complex ten-count com-
plaint, alleging violations of both state and federal law. However, like
the case currently before this Court, Williams essentially boiled down
to a claim of wrongful discharge. Notwithstanding the presence of
____________________________________________________________
3
The dissent misunderstands our citation to Culler, erroneously believ-
ing that we equate Culler's articulation of a political opinion with
Dixon's alleged exercise of a federally protected constitutional right.
Post at 23-24. To clarify, we cite Culler, not to develop our understand-
ing of First Amendment law, but rather, to support our reading that the
South Carolina statute requires a plaintiff to meet the two-step test out-
lined above.
9
several state-law claims, the district court exercised federal jurisdic-
tion over the entire case, and granted the defendant's motion for sum-
mary judgment on all counts.
In Count I of her complaint, Williams asserted a violation of her
First Amendment rights to free speech and free association, "contend-
[ing] that she was discharged because she [was] a Democrat." Id. at
*1-*2. Judge Shedd found that Williams had "completely failed to
offer any competent evidence in support of this claim." Id. at *2.
Turning to Williams' contention that she had a cause of action under
S.C. Code Ann. § 16-17-560, the court ruled, "While Williams is cor-
rect that she may maintain an action under Ludwick premised on the
provision of Section 16-17-560, . . . her claim must nevertheless fail
as a matter of law because of the Court's previous conclusion that she
has failed to present sufficient evidence to support her claim that she
was discharged for political reasons." Id. at *7 (citing Culler, 422
S.E.2d at 91).
In sum, like the Culler, Moshtaghi, and Williams courts, we believe
that the South Carolina statute means exactly what it says. To support
his claim under § 16-17-560, Dixon must first show that he exercised
his constitutional right to free speech, and secondly, he must prove
that he was discharged as a result. As explained above, causation is
not an issue in dispute. Thus, this case turns solely on Dixon's allega-
tion that his actions represented an exercise of his First Amendment
right to free expression.
Following Franchise Tax Board and its progeny, we must next
determine whether this federal question is substantial. See Franchise
Tax Bd., 463 U.S. at 13 (noting that "arising under" jurisdiction exists
only if the state law claim "requires resolution of a substantial ques-
tion of federal law") (emphasis added); Mulcahey, 29 F.3d at 151
(quoting Franchise Tax Bd., 463 U.S. at 28). We find the question
presented by Dixon's complaint to be substantial for three reasons.
Most obviously, Dixon's free speech claim raises First Amendment
issues that are of monumental importance. Recently, the United States
Supreme Court reviewed the Supreme Court of Virginia's affirmance
of a state law prohibiting cross burning because of the vital First
Amendment concerns at stake. See Virginia v. Black, ___ U.S. ___,
10
123 S.Ct. 1536, 1547 (2003). Similarly, Dixon's case presents this
Court with a difficult question as to where the outer limit of an indi-
vidual's right to political expression might lie.
Additionally, there "is an important need for uniformity in federal
law" that supports this Court exercising jurisdiction over a state-law
claim that necessarily turns upon an interpretation of the Bill of
Rights. Michigan v. Long, 463 U.S. 1032, 1040 (1983).4 That is,
where a state statute, as applied, would rest exclusively on federal
constitutional law, uniformity concerns must be taken into account.
See Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 347-48 (1816)
(recognizing "the importance, and even necessity of uniformity of
decisions throughout the whole United States, upon all subjects within
the purview of the constitution") (emphasis in original). See also Mer-
rell Dow Pharmaceuticals v. Thompson, 478 U.S. 804, 826 (1986)
(Brennan, J., dissenting) (quoting Martin v. Hunter's Lessee, 14 U.S.
(1 Wheat.), at 347-48).
Lastly, the substantiality of these factors takes on additional impor-
tance because of a possible conflict with our Title VII jurisprudence.
Pursuant to Title VII, Coburg maintains an obligation to furnish a
harassment-free workplace. See, e.g., Faragher v. Boca Raton, 524
U.S. 775, 788 (1998) (discussing the circumstances in which "an
employer will be liable for a discriminatory environment that is other-
wise actionably abusive"). Coburg claims that its actions were prem-
ised on its anti-harassment policy, and that it fired Dixon following
a racial harassment allegation initiated by one of Dixon's co-workers.
____________________________________________________________
4
In Long, the Supreme Court ruled, in another context, that it had juris-
diction to consider a defendant's challenge of his state-court conviction
on Fourth Amendment grounds when the "state court decision fairly app-
ear[ed] to rest primarily on federal law, or to be interwoven with the fed-
eral law." 463 U.S. at 1040-41. The dissent mistakenly suggests that we
cite Long to buttress our conclusion that the federal issue in the present
case is sufficiently substantial to support a finding of federal question
jurisdiction. The jurisdictional inquiry that we undertake is, as the dissent
explains, unrelated to the jurisdictional question faced by the Supreme
Court in Long. See post at 29 n.5. However, Long's statement that there
"is an important need for uniformity in federal law," is relevant to both
analyses. Our citation to Long is simply for the purpose of acknowledg-
ing this fact.
11
Dixon argues that despite these Title VII concerns, South Carolina
law should afford him far-reaching free speech protection. Dixon's
suggested application of South Carolina law, of course, would put
state and federal law directly in conflict with each other. For the
employer, this conflict would mean either firing Dixon and facing a
wrongful discharge claim, or ignoring the harassment complaint and
facing Title VII liability. Plainly, our interest in resolving this issue
is of paramount importance and further justifies our exercise of juris-
diction based on Count III.
Similarly, Count IV states a claim for "Retaliatory Discharge"
based on Coburg's alleged attempt "to control the content of Plain-
tiff'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 [Confederate] flag from his tool box
and then, ultimately, terminating him for exercise of that same right.
. . ." Essentially, Count IV rephrases the charge in Count III. As
explained above, Coburg concedes that it pressured Dixon to remove
the Confederate flag stickers from his tool box. Coburg further admits
that it fired Dixon solely because he refused to adhere to this request.
All that remains disputed, therefore, is whether Dixon's decision to
display the Confederate flag was, as Dixon asserts, an exercise of "his
constitutionally protected rights of free speech. . . ."
In sum, removal of Counts III and IV was proper pursuant to 28
U.S.C. § 1441(a) (2001), and removal of the supplemental state-law
claims was proper pursuant to 28 U.S.C. § 1441(c) (2001).
B.
Having determined that removal was permissible, this Court now
considers whether the district court erred in dismissing Counts III and
IV at the summary judgment stage.5
In Count III, Dixon alleges a violation of S.C. Code Ann. § 16-17-
560, which provides the basis of a claim for wrongful discharge if an
____________________________________________________________
5
Count I, as explained above, is so frivolous and insubstantial that it
fails to raise a federal question. Accordingly, that claim must be dis-
missed without prejudice.
12
employee is terminated for one of three reasons: (1) an exercise of
"political rights" protected under federal law; (2) an exercise of "polit-
ical rights" protected under state law; or (3) because of an individual's
"political opinions."6 Dixon does not allege a violation of the entire
statute. Rather, he claims that he was discharged "for display of the
Confederate flag," and he maintains that his employment was termi-
nated because of his exercise of his constitutional right to free speech.7
Nowhere does Dixon claim that he was discharged because of his
"political opinions." Furthermore, this omission appears to have been
intentional. Dixon notes that another co-worker, William Reid,
"worked in the garage and also had a Confederate flag on his tool-
box." (Br. for Appellant at 5.) Unlike Dixon, Reid agreed to remove
his decal and continue working at Coburg. Both Dixon and Reid were
motivated to display the flag because of their shared "political opin-
ions." Neither, however, were fired because of their opinions about
the flag issue. Rather, Dixon was discharged because of his alleged
exercise of his First Amendment right to display the flag. As
explained in the joint stipulation of facts, Coburg first asked Dixon
to remove the Confederate flag from his tool box. When Dixon
resisted, Coburg offered to purchase him a new tool box for the
garage, suggesting that Dixon could keep his flag-adorned tool box
for home use. Therefore, Dixon could have kept his job, not by
changing his opinions, but by altering how he chose to express them.
The crux of the claim is whether Dixon's decision to display the
____________________________________________________________
6
As explained above, violation of this statute will support a civil cause
of action for wrongful discharge under the public policy exception to the
at-will employment doctrine. See Culler v. Blue Ridge Elec. Co-op., 422
S.E. 2d 91 (S.C. 1992).
7
S.C. Code Ann. § 16-17-560 states that 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."
(Emphasis added.) The statute does not embrace every constitutional
right, but only those that can be labeled "political" rights and privileges.
The Supreme Court of South Carolina has assumed, without deciding,
that the exercise of the rights to "freedom of speech, of assembly, and the
right to petition the government for redress of grievances" would be pro-
tected under § 16-17-560. Moshtaghi v. The Citadel, 443 S.E.2d 915, 919
(S.C. 1994).
13
Confederate flag is protected by the "political rights" language of S.C.
Code Ann. § 16-17-560. A plain reading of the text of § 16-17-560
makes it clear that a court is to determine whether Dixon: (1) was
engaged in the "exercise of political rights and privileges guaranteed
to every citizen by the Constitution and laws of the United States or
by the Constitution and laws of this State"; and (2) was discharged as
a result. Because there is no dispute as to the reasons behind Dixon's
discharge, the case turns on the question of whether there is any pro-
tection in the Free Speech Clause for Dixon's actions.
The act of displaying a Confederate flag is plainly within the pur-
view of the First Amendment. "Flags, especially flags of a political
sort, enjoy an honored position in the First Amendment hierarchy."
American Legion Post 7 v. City of Durham, 239 F.3d 601, 607 (4th
Cir. 2001). Even more, Dixon chose to display the Confederate battle
flag at a time when South Carolinians were vigorously debating
whether that flag should fly atop their state capitol. As the Supreme
Court recently affirmed, "The hallmark of the protection of free
speech is to allow `free trade in ideas,'" and this protection extends
"to symbolic or expressive conduct as well as to actual speech." Vir-
ginia v. Black, ___ U.S. ___, 123 S.Ct. 1536, 1547 (2003). Dixon's
actions, taking place amidst a charged political atmosphere, exemplify
the kind of speech that the First Amendment was drafted to protect.
While Dixon may have a constitutional right to fly the Confederate
flag, however, that right is not unlimited. An individual may not "ex-
ercise general rights of free speech on property privately owned and
used nondiscriminatorily for private purposes only." Lloyd Corp. v.
Tanner, 407 U.S. 551, 567 (1972) (holding that the First Amendment
does not protect the actions of a protester handing out anti-war hand-
bills at a privately owned shopping mall when that mall has a policy
against all handbilling). Had Dixon attended a pro-flag rally on the
grounds of the state capitol, he clearly would have satisfied the first
element of a claim under § 16-17-560. Assuming that state authorities
would have permitted the rally to go forward, Dixon's attendance at
such an event would be an exercise of his rights under the Free
Speech Clause of the First Amendment. This conduct would be pre-
cisely the kind of speech that the South Carolina legislature wished
to protect. Under South Carolina law, an individual who attended this
type of rally on Sunday could not be fired by his private employer the
14
following Monday solely because his employer objected to the indi-
vidual's presence at the rally.
Dixon, however, chose to display the Confederate flag on the tool
box he used at his workplace. For Dixon to prevail, this Court would
be required to find that the First Amendment gives him the right to
move the flag rally from the capitol to the Coburg Dairy garage. Such
a finding would lead to the absurd result of making every private
workplace a constitutionally protected forum for political discourse.
As the Supreme Court has observed, this argument "has as its major
unarticulated premise the assumption that people who want to propa-
gandize protests or views have a constitutional right to do so when-
ever and however and wherever they please." Adderley v. Florida,
385 U.S. 39, 47-48 (1967). The Court has "vigorously and forth-
rightly rejected" that concept of the First Amendment. Id. at 48.
Dixon has a constitutionally protected right to fly the Confederate
battle flag from his home, car, or truck. He has a right to attend rallies
on public property, and to march in events organized by the SCV.
And under South Carolina law, he could not be discharged for exer-
cising his First Amendment right at these events. In the context of this
case, however, Dixon's First Amendment right does not extend to
bringing the Confederate flag inside his employer's privately owned
workplace. Dixon has failed to establish an essential element of a
cause of action for wrongful discharge under S.C. Code Ann. § 16-17-
560: that he exercised one of the "political rights and privileges guar-
anteed to every citizen by the Constitution and laws of the United
States or by the Constitution and laws of this State." Thus, Coburg's
motion for summary judgment as to Count III was properly granted.
The dissent takes issue with our understanding of the South Caro-
lina statute, and instead suggests that the law should be interpreted to
require a court to answer the hypothetical question of whether a pri-
vate employer's actions would have violated the First Amendment if
that employer were a state actor. This view of the South Carolina law
is not based on South Carolina statutory or common law, as nothing
in South Carolina's jurisprudence directs a court to ask what would
have happened had Dixon been a government employee. Regardless,
even were the dissent's interpretation of § 16-17-560 correct, a fed-
eral issue would still control — whether the First Amendment pro-
15
tects the right of a state employee to display the Confederate flag in
the manner and circumstances in which Dixon displayed the flag. For
the reasons stated below, we find that the protections of the First
Amendment do not reach so far.
It is well-settled "that a state cannot condition public employment
on a basis that infringes the employee's constitutionally protected
interest in freedom of expression." Connick v. Myers, 461 U.S. 138,
142 (1983). Thus, when an employee is discharged ostensibly for
exercising his right to free speech, especially when that speech
touches on a matter of public concern, the public employer bears the
burden of justifying its personnel action based on its "interest in the
effective and efficient fulfillment of its responsibilities" as an
employer. Id. at 150.
Dixon alleges that he was discharged for refusing to remove two
Confederate flag stickers from his tool box. He concedes, however,
that Coburg would have bought him a new tool box and permitted
him to keep the flags on his old tool box, so long as Dixon refrained
from using the old tool box in the Coburg Dairy garage. When Dixon
refused to accept this offer of compromise, he was fired.
Coburg justifies its decision to discharge Dixon based on its inter-
est in preserving a friendly and efficient work environment. As
explained above, whether to remove the Confederate flag from atop
the state capitol dome was an extremely sensitive and divisive issue
in South Carolina at the time. The flag was first raised over the capitol
in 1962, just a few years before Congress passed the Civil Rights Act
of 1964 and the Voting Rights Act of 1965. In its historical context,
the decision to first fly the flag over the South Carolina capitol can
reasonably be seen as a defiant act by a legislature determined to
resist national pressure to desegregate. Although the State of South
Carolina eventually capitulated in its fight against civil rights, the
Confederate flag continued to fly until July 1, 2000.8 In light of these
____________________________________________________________
8
In fact, the flag still flies in South Carolina today. As part of a com-
promise between flag opponents and flag supporters, the state legislature
agreed to remove the flag from the capitol dome and raise it elsewhere
on the capitol grounds. Recognizing that the new position was in some
16
facts, it is easy to see how Dixon's decision to display the Confeder-
ate flag on his tool box would be viewed as a controversial and pro-
vocative act. In fact, Dixon's African-American co-worker, Leroy
Garner, viewed Dixon's decision to display the flag inside the garage
as a form of racial harassment. Not surprisingly, Coburg feared that
any failure on its part in responding to Garner's concerns might
expose the company to Title VII liability. Thus, in an effort to keep
conflict among its employees at a minimum, in order to preserve a
harmonious and efficient work environment, and in order to avoid any
potential liability under federal anti-discrimination laws, Coburg
asked that Dixon save his political statements for after work. Never
did Coburg suggest that Dixon could not speak out about his views
on the Confederate flag. Instead, Dixon's employer merely insisted
that he voice those viewpoints in a manner that would be less likely
to goad one of his co-workers into an emotional confrontation. This
is surely a substantial and legitimate interest that supports Coburg's
actions. See Black, 123 S.Ct. at 1547 (noting, "The protections
afforded by the First Amendment . . . are not absolute, and we have
long recognized that the government may regulate certain categories
of expression consistent with the Constitution.").
When a public employee has been discharged for allegedly exercis-
ing his First Amendment right to free speech, "Our responsibility is
to ensure that [the employee is] not deprived of fundamental rights by
virtue of working for the government. . . ." Id. at 147. That is, the
public employee should enjoy the same level of constitutional protec-
tion as does the private employee. A state employer need not go far-
ther than a private employer, however, and provide its employees
with an unrestrained forum for political discourse in the work envi-
ronment. Because Coburg went to great lengths to protect Dixon's
right to speak freely outside of the workplace, Dixon's First Amend-
ment right to free speech has not been infringed by his discharge
____________________________________________________________
ways more objectionable, some flag supporters chanted "Off the dome
and in your face" as NAACP advocates and Sons of Confederate Veter-
ans witnessed the flag being moved to its new site in front of the capitol
at a prominent intersection in downtown Columbia. See "Confederate
Flag Removed from S.C. Statehouse," Los Angeles Times, July 2, 2000,
at A18.
17
based on his actions inside the garage. Coburg is therefore entitled to
summary judgment on Count III.
In Count IV of his complaint, Dixon alleges a cause of action for
retaliatory discharge. According to Dixon, "Coburg's actions, through
its agents['] attempts to control the content of Plaintiff's right of free
speech . . . and then, ultimately terminating him for exercising that
same right, constitute retaliatory discharge of Plaintiff." As discussed
above, based on the facts of this case, Dixon's placement of the Con-
federate flag on his tool box was not a constitutionally protected exer-
cise of free speech. Therefore, the district court properly dismissed
this claim on summary judgment as well.
C.
The Court now turns to the question of whether Coburg was enti-
tled to summary judgment on Dixon's six pendent state-law claims.
Specifically, this Court must determine whether Coburg is entitled to
summary judgment as to Counts VI, VII, VIII and IX of Dixon's com-
plaint.9 Dixon's argument on these remaining claims, in its entirety,
is as follows:
Finally, the District Court failed to address Dixon's argu-
ment that his causes of action based on other aspects of
South Carolina law, including breach of contract, defama-
tion, intentional infliction of emotional distress and conspir-
acy are fact driven theories which should not be determined
on motion for summary judgment. Dixon submits that genu-
ine issues of fact exist with regard to these causes of action,
which should only be determined at the trial level.
(Br. for Appellant at 29.) In point of fact, however, Dixon never does
submit what these genuine issues of material fact might be. He has
failed to allege any facts, either before this Court or the district court,
to support his allegations of breach of contract, civil conspiracy, defa-
mation, or intentional infliction of emotional distress. This is so
____________________________________________________________
9
The district court also granted summary judgment on Counts II and
V of Dixon's complaint. Dixon, however, has not appealed the district
court's ruling on these counts.
18
because Dixon's case is not really about any of these state-law claims.
Rather, Dixon's allegations rise or fall solely on his free speech alle-
gations, discussed above. As such, the district court rightly granted
Coburg's motion for summary judgment on the pendent state-law
causes of action.
IV.
For the foregoing reasons, the district court's ruling is affirmed in
part and reversed in part. As explained above, Coburg is entitled to
summary judgment on Counts II through IX of Dixon's complaint.
Count I, premised on a violation of constitutional rights, is so wholly
insubstantial and frivolous as to fail to raise any federal question.
Accordingly, that purportedly federal count is dismissed without prej-
udice.
AFFIRMED IN PART, REVERSED IN PART
GOODWIN, District Judge, concurring in part and dissenting in part:
The majority concludes that Counts III and IV of the plaintiff's
complaint necessarily depend on the resolution of a substantial ques-
tion of federal law, and thus that federal question jurisdiction exists
over those counts. I respectfully disagree. First, I conclude that
Dixon's wrongful discharge and retaliatory discharge claims do not
depend on the resolution of any question of federal law. Second, even
if I were to conclude that those claims do depend on the resolution
of a question of federal law, that question is not a substantial one. For
both of these independently sufficient reasons, I would hold that the
district court lacked jurisdiction over Counts III and IV. I concur in
the majority's opinion insofar as it holds that Count I of the complaint
raises an insubstantial question of federal law. Because none of the
counts give rise to federal question jurisdiction, the district court
lacked any basis for exercising supplemental jurisdiction over the
state-law counts. Accordingly, the entire complaint should be dis-
missed for lack of jurisdiction. Because I believe we lack jurisdiction,
I do not reach the merits of Dixon's claims.
I.
The majority concludes that the district court had federal question
jurisdiction in this case, holding that Count III "necessarily depends
19
upon the resolution of a question of federal law." Ante at 7. In reach-
ing this conclusion, the majority notes that in order to prevail Dixon
must establish that he "exercised a political right or privilege that is
`guaranteed to every citizen by the Constitution and laws of the
United States . . . .'" Ante at 7. I agree. I also agree with the majority's
observation that causation is not in dispute, and that "[t]he only ques-
tion is whether the First Amendment protects Dixon's right to display
the Confederate flag as he chose to display it." Ante at 7. From this,
the majority concludes that Dixon's claim depends on the resolution
of a question of federal law.
At first blush, this conclusion appears to be correct. If, as I agree
is the case, the only real question here is whether Dixon was exercis-
ing his First Amendment rights when he displayed the flag in the
manner that he did, then it might seem obvious that the outcome of
this case depends on the resolution of a question of federal law.1
However, in the circumstances of this case, the question of "Was
Dixon exercising his First Amendment rights?" is not a question that
can be answered under federal law. This is because, under federal
law, 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. Here, of
course, no state actor was involved in Dixon's discharge. Accord-
ingly, there is no body of federal law that addresses the question of
whether Dixon was exercising his First Amendment rights. Rather,
the concept of the "exercise of First Amendment rights" in the context
of solely private action is a concept that has been created by the South
Carolina legislature. It is a state law concept that does not exist under
federal law. Undoubtedly, the South Carolina legislature intended that
federal law interpreting the First Amendment would be used, by way
of analogy, to determine when an individual was, in a manner of
speaking, exercising his First Amendment rights in the private
employment context. But there is a critical difference between incor-
porating a question of federal law into a state statute and using federal
____________________________________________________________
1
Indeed, as the majority points out, ante at 8, Dixon believes that the
First Amendment issues in this case form an element of his state cause
of action. Of course, a party's concession cannot provide federal question
jurisdiction where it would otherwise be lacking. See Mescalero Apache
Tribe v. New Mexico, 131 F.3d 1379, 1386 (10th Cir. 1997).
20
law as a reference or analogy for interpreting a purely state law cause
of action.2 Here, South Carolina has done the latter, and thus there is
no federal question jurisdiction under this statute.
A.
Colloquially, we often speak of exercising our federal constitu-
tional rights, for example, exercising our right to free speech. In the
abstract, though, it is impossible to say whether a particular form of
expression, like displaying the Confederate flag, is or is not an exer-
cise of First Amendment rights. The scope and nature of First Amend-
ment rights depends on the circumstances of the expression in
question and — most critically for present purposes — the nature of
the state's attempt to restrict it. See Cornelius v. NAACP Legal Def.
& Educ. Fund, Inc., 473 U.S. 788, 799-800 (1985) (explaining that
the types of restrictions the state may place on speech depend on
whether the speaker wishes to speak in a public forum, a limited pur-
pose public forum, or a nonpublic forum). The First Amendment does
not provide individuals with a generalized right to express themselves
without interference from others — it only places certain limits on
attempts by the state to interfere with expressive activity. See CBS,
Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 114 (1973) ("That
`Congress shall make no law . . . abridging the freedom of speech, or
of the press' is a restraint on government action, not that of private
persons."). Moreover, the First Amendment only prohibits the state
from interfering with speech in certain ways, and in certain contexts.
Unless we know how the state is attempting to restrict an expressive
activity, it is impossible to say whether the individual engaged in that
expressive activity is "exercising his First Amendment rights."
I will illustrate by way of example. The majority claims that if
Dixon were to display the Confederate flag during a pro-flag rally on
the grounds of the state capitol, that action would clearly constitute
an exercise of his First Amendment rights. Ante at 14. I disagree —
____________________________________________________________
2
Of course, even in cases where the state statute does incorporate a
question of federal law, federal question jurisdiction is often not present.
See Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 809
(1986); infra Part II. The point here is that federal question jurisdiction
is never present when federal law is used merely by analogy.
21
flag-waving at a pro-flag rally on state capitol grounds does not
always constitute an exercise of First Amendment rights. The majori-
ty's example activity — no doubt chosen because it seems a paradig-
matic example of exercising one's First Amendment rights — could
be prohibited by the state in some circumstances. For example, the
state could prohibit a pro-flag rally at 2 a.m. pursuant to a uniformly-
applied policy against assembly on capitol grounds between midnight
and 6 a.m. See Thomas v. Chi. Park Dist., 534 U.S. 316, 322 (2001)
(state may impose "content-neutral time, place, and manner regulation
of the use of a public forum"). Similarly, the state could prohibit a
pro-flag rally on the capitol grounds planned for a given day in light
of a credible bomb threat associated with that rally. See Thomas v.
Collins, 323 U.S. 516, 532 (1945) (state may impose a prior restraint
on speech "if grave and impending public danger requires this"). In
some circumstances, the government could even fire an employee for
participating in an otherwise constitutionally-protected pro-flag rally
on the capitol grounds. Imagine that a pro-flag citizen group had
brought a lawsuit challenging the process by which the South Caro-
lina legislature decided to remove the Confederate flag from atop the
statehouse, and planned a rally to publicize the case and their cause.
A law clerk to the judge assigned the case wishes to attend the pro-
flag rally, as he strongly supports flying the flag atop the capitol.
Surely the judge could, consistent with the First Amendment, prohibit
the clerk from attending the pro-flag rally in order to prevent any
appearance of judicial bias or impropriety, and in fact could fire the
clerk if he disobeyed and attended the rally anyway. See Judicial Con-
ference of the United States, Code of Conduct for Judicial Employees,
Canon 2 (1995) available at ("A judicial employee should not engage in any activities
that would put into question the propriety of the judicial employee's
conduct in carrying out the duties of the office."); id. Canon 5.B ("[A]
judicial employee[ ] may engage in nonpartisan political activity only
if such activity does not tend to reflect adversely on the dignity or
impartiality of the court or office and does not interfere with the
proper performance of official duties."). A complaint from the clerk
that his discharge violated the First Amendment, because he was
exercising his First Amendment rights, would almost assuredly fall on
deaf ears.
As these examples hopefully make clear, even for conduct that
seems to typify freedom of expression, the question of whether that
22
conduct constitutes the exercise of one's First Amendment rights can-
not be answered without knowing the manner and justification for
state restrictions on that speech. The majority concedes that it is "dif-
ficult" to determine, in the abstract, when an individual is exercising
his First Amendment rights. Ante at 8. Here, I think, lies the heart of
our disagreement. I do not find this task merely difficult; I find it
impossible — at least under federal law.
The majority states that "there can be no doubt" that defining the
exercise of First Amendment rights in the abstract "is precisely the
type of analysis that the South Carolina legislature has intended courts
to undertake." Ante at 8. But whether one concludes that the South
Carolina legislature intended courts to determine the exercise of First
Amendment rights by defining those rights in the abstract, as the
majority asserts, or by treating the private employer as if it were a
state actor, as I have asserted, in neither case is the court determining
a question of federal law. Just as there is no body of federal law that
defines the exercise of First Amendment rights as against a private
employer, there is no body of federal law defining it in the abstract.
If the majority's interpretation of the South Carolina statute is cor-
rect — that is, if the statute asks courts to determine the exercise of
First Amendment rights in the abstract, rather than by treating the pri-
vate employer as a state actor — then the statute has less to do with
federal law than under my interpretation. The majority argues that
under Culler, the analysis of whether the plaintiff was exercising a
First Amendment right is simply "whether the employee has articu-
lated a political opinion or exercised a political right." Ante at 9.
Under this approach, the phrase "exercise of First Amendment rights"
is treated as a shorthand reference to political expression. If this is
how the South Carolina courts interpret the statute, then its reach is
broad indeed — much broader than the protection afforded public
employees by the First Amendment. Applying this test to the case at
hand, it is hard to see why the majority concludes that Dixon was not
exercising a First Amendment right. After all, his display of the Con-
federate flag was intended by him, and understood by others, as the
articulation of a political opinion. His employer asked that he limit his
23
advocacy of his political opinion about the Confederate flag to outside
the workplace. He refused, and he was fired.3
Because no state actor was involved in Dixon's discharge, there is
no body of federal law that answers the question of whether Dixon
was exercising his First Amendment rights in this case. The question
embedded in the South Carolina statute — when is an individual exer-
cising his First Amendment rights as against his private employer —
is simply not a question of federal law. Because Dixon's claims do
not depend on the resolution of a "question of federal law," these
claims do not give rise to federal jurisdiction.
B.
Thus far, I have argued that the concept of the "exercise of First
Amendment rights," in the absence of state action, is a concept that
has no content under federal law. It might seem to follow that this part
of the South Carolina statute, which regulates private action as against
the exercise of First Amendment rights, is simply a nullity. After all,
if there is no such thing, under federal law, as the exercise of First
Amendment rights absent state action, then one could argue that this
part of the statute can have no meaning, at least as applied to private
actors. This was the district court's conclusion. It granted summary
judgment to Coburg, explaining that under the federal constitution,
"for there to be a violation of free speech, there must be state action.
. . . [T]here was no state action in this case. That being the case, . . .
the defendant had an absolute right to discharge the plaintiff." I agree
that the district court's interpretation is one plausible construction of
the statute, albeit one that renders the statute a nullity as against pri-
vate actors. However, there is another way to interpret the statute that
does give it meaning.
While the concept of the "exercise of First Amendment rights"
absent state action has no content under federal law, it is an entirely
different question whether it might have some content under state
____________________________________________________________
3
As to whether Dixon "exercised a political right," I am not sure what
this phrase might mean except the exercise of his rights under the First
Amendment, a concept that I have already argued is, in the absence of
state action, without content under federal law.
24
law. Undoubtedly, the South Carolina legislature intended that this
part of the statute would have some meaning. I can conceive of one
way to interpret the statute that does give it meaning. To determine
whether the South Carolina private employer has acted "because of
[an employee's] . . . exercise of" his First Amendment free speech
rights, a court should ask whether the private employer's actions
would have violated the First Amendment if it were a state actor. If
so, then one can say, in a manner of speaking, that the private actor
has discharged the employee because of the employee's exercise of
his First Amendment rights.4 Critically, this concept — that a private
____________________________________________________________
4
The majority is skeptical of this approach to the statute, contending
that it has no basis in the statute or South Carolina common law. While
I concede that this interpretation is not compelled by the text of the stat-
ute, I submit that it is the best interpretation because it is (1) consistent
with the text of the statute and (2) the only way, as far as I can tell, to
give the statute any force. By making it a crime for a private employer
to discharge an employee for the exercise of his First Amendment rights
(among other things), the South Carolina legislature intended, I believe,
to afford the same protection to private employees as against their private
employers as is enjoyed by public employees against the state. (There are
reasons to doubt whether doing so is wise or even, in some circum-
stances, constitutional, but those issues are not before the court. See
Julian N. Eule & Jonathan D. Varat, Transporting First Amendment
Norms to the Private Sector: With Every Wish There Comes a Curse, 45
U.C.L.A. L. Rev. 1537, 1605-32 (1998) (suggesting that applying First
Amendment-type restrictions to private actors may, in certain circum-
stances, violate those actors' First Amendment freedom of expression
and association rights).) By using the phrase "exercise of [the employee's
First Amendment] rights," it seems that the South Carolina legislature
intended to protect private employees' rights to express themselves on
political and other important matters in the private workplace. And by
making reference to political rights protected under the United States
Constitution rather than simply using a phrase like "expressing political
beliefs," the South Carolina legislature clearly had in mind the body of
federal caselaw that has developed related to First Amendment restric-
tions on state action. I have argued above that it is impossible to say
whether a given act of expression is an exercise of First Amendment
rights without knowing the context of the speech and the manner of the
government's attempt to restrict it. Accordingly, the only way that I can
conceive to apply, to private actors, the body of federal caselaw govern-
ing First Amendment protections against state action, is to treat the pri-
vate actor as if it were a state actor.
25
employee can be "exercising First Amendment rights" as against his
private employer — is a state law concept, one that the South Caro-
lina legislature has created, not incorporated from federal law. It
could not have incorporated this concept from federal law, because
the concept does not exist under federal law. It is a new creation of
the South Carolina legislature and is purely a creature of state law.
The majority argues that even if it were to adopt this approach to
the statute, "a federal issue would still control — whether the First
Amendment protects the right of a state employee to display the Con-
federate flag in the manner and circumstances in which Dixon dis-
played the flag." Ante at 15-16. I agree with the majority that, even
under my approach to the statute, principles of federal First Amend-
ment law still control the outcome of the case. This does not mean,
however, that the statute has incorporated a question of federal law.
The difference, I submit, is between the incorporation of a federal
question into a state statute and the mere use of federal law principles,
by way of analogy, to resolve an otherwise purely state-law question.
Here, the South Carolina statute does not incorporate a federal ques-
tion, because the exercise of First Amendment rights absent state
action is a concept alien to federal law. Instead, the South Carolina
statute has created a new state-law concept — the exercise of First
Amendment rights outside the context of state action — which is
given content by looking to federal First Amendment law, in the con-
text of state action, by way of analogy.
____________________________________________________________
Moreover, while this approach is not laid out explicitly in the statute
or in South Carolina caselaw (which is relatively undeveloped in this
area at this time), the approach does find support in caselaw from Penn-
sylvania and Connecticut interpreting analogous state statutes. To deter-
mine whether a private employee was discharged by a private employer
for "exercising a First Amendment right," courts have relied on federal
caselaw related to the discharge of public employees. See Novosel v.
Nationwide Ins. Co., 721 F.2d 894, 898-901 (3d Cir. 1983) (interpreting
Pennsylvania law); Winik-Nystrup v. Mfrs. Life Ins. Co., 8 F. Supp. 2d
157, 160 (D. Conn. 1998) (interpreting Connecticut law). In essence,
these courts ask whether, if the private employer had been a state actor,
the employee's discharge would have violated the First Amendment. See
id.
26
The role of federal law in this case is similar to the use of federal
law in cases where state courts interpret purely state-law statutes in
light of similar federal statutes. For example, some state courts have
interpreted state anti-discrimination laws in accordance with the prin-
ciples of federal anti-discrimination law. See, e.g., Barefoot v. Sun-
dale Nursing Home, 457 S.E.2d 152, 159 (W. Va. 1995) ("We have
consistently held that cases brought under the West Virginia Human
Rights Act, W.Va.Code, 5-11-1, et seq., are governed by the same
analytical framework and structures developed under Title VII, at
least where our statute's language does not direct otherwise." (cita-
tions omitted)). While cases involving these state laws are sometimes
resolved by considering and analyzing the analogous federal law,
such cases do not depend on the resolution of a question of federal
law that was incorporated into the statute. As one district court in this
circuit has explained, "[t]he situation . . . where a plaintiff asserts a
claim for recovery under a state statute that is modeled after federal
law[ ] should be distinguished from the situation in which a plaintiff
asserts a claim that incorporates a federal statute or standard as an ele-
ment of recovery under state law." Pendergraph v. Crown Honda-
Volvo, LLC, 104 F. Supp. 2d 586, 589 (M.D.N.C. 1999). The former
case, where the court looks to federal law simply for a framework to
decide a state law question, does not give rise to federal question
jurisdiction. See id. ("[T]he mere fact that a local ordinance is con-
strued in accordance with a federal statute does not give rise to federal
question jurisdiction. . . . Clearly, the state or local government's
decision to look to federal law for guidance in interpreting state law
does not federalize the cause of action."); Mixer v. M.K.-Ferguson
Co., 17 F. Supp. 2d 569, 572 (S.D. W. Va. 1998) (holding that claim
under West Virginia Human Rights Act did not present a federal
question). In this case, the fact that a state law claim requires analysis
of federal law and depends on resolving an issue of federal law does
not mean that the state claim has incorporated a question of federal
law. Federal law simply provides the analytical framework for decid-
ing a purely state law question.
Accordingly, Dixon's claims that rely on the South Carolina statute
(in combination with the public policy exception to the at-will doc-
trine) do not "depend[ ] on the resolution of a . . . question of federal
law." Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151
(4th Cir. 1994). The question of whether Dixon was exercising his
27
First Amendment rights in this case cannot be answered by federal
law because there is no state action against which to measure First
Amendment protections. However, the question can be answered
under state law — specifically, under the state law concept created by
the South Carolina legislature that a private employee can be said to
be exercising his First Amendment rights, for purposes of this state
statute, when he is fired under circumstances which, if his private
employer were a state actor, would violate the First Amendment.
Because Dixon's claims in Counts III and IV do not depend on the
resolution of a question of federal law, those claims do not give rise
to federal question jurisdiction.
II.
Even assuming for the sake of argument that Counts III and IV do
depend on the resolution of a question of federal law, I nonetheless
believe that such a question is not substantial. This provides another,
independently sufficient reason for my conclusion that the district
court lacked jurisdiction in this case.
The majority first decides that Dixon's claim "necessarily depends
upon the resolution of a question of federal law." Ante at 7. Assuming
that these claims raise a federal question, I agree with the majority
that Dixon's claims here necessarily depend on the resolution of that
question. The Supreme Court has made clear, however, that federal
question jurisdiction is not always present in cases involving a state
law that incorporates a federal question as an element of the state
claim, even when resolution of that federal question is the central
issue in the case. In Merrell Dow Pharmaceuticals Inc. v. Thompson,
478 U.S. 804 (1986), the Supreme Court noted that "the central issue
presented in [Franchise Tax Board of the State of California v. Con-
struction Laborers Vacation Trust for Southern California, 463 U.S.
1 (1983)] turned on the meaning of the Employee Retirement Income
Security Act of 1974, 29 U.S.C. § 1001 et seq. (1982 ed. and Supp.
III), but we nevertheless concluded that federal jurisdiction was lack-
ing." Merrell Dow, 478 U.S. at 809. Noting, among other things, that
no free-standing federal cause of action was available to the plaintiff,
the Court concluded that "the presence of a claimed violation of the
statute as an element of the state cause of action is insufficiently `sub-
stantial' to confer federal-question jurisdiction." Id. at 814.
28
The determination of whether the federal question in this case is
"substantial" "should be informed by a sensitive judgment about
whether the existence of federal judicial power is both appropriate
and pragmatic." Ormet Corp. v. Ohio Power Co., 98 F.3d 799, 806
(4th Cir. 1996). "At bottom, we must determine whether the dispute
is one that Congress intended federal courts to resolve, taking into
account the historical reasons for establishing federal courts." Id. (cit-
ing Merrell Dow, 478 U.S. at 826-27 (Brennan, J., dissenting)). Those
reasons for establishing the federal courts include interests in uniform
national interpretation of the law, Merrell Dow, 478 U.S. at 826
(Brennan, J. dissenting), and the possibility of greater expertise of
federal courts in questions of federal law, id. at 826-27. In addition,
the majority in Merrell Dow considered whether the plaintiff had a
free-standing cause of action under the federal law in question. Id. at
813-14.5
Applying these pragmatic principles to the federal question argu-
ably implicated in this case, I conclude that they all point toward find-
ing that the federal question, if any, is not substantial. As for national
uniformity, the particular federal law question raised in this case —
____________________________________________________________
5
The majority, in its discussion of whether this federal question is
"substantial," quotes a statement from Michigan v. Long, 463 U.S. 1032,
1040-41 (1983), to the effect that the Supreme Court has jurisdiction to
review a "state court decision [that] fairly appears to rest primarily on
federal law, or to be interwoven with the federal law." Ante at 11 n.4.
This standard relates to the scope of the Supreme Court's powers to
review state court judgments, specifically regarding whether the state
court decision rests on an adequate and independent state law ground. It
does not, I submit, have any bearing on whether a question of federal law
embedded in a state cause of action is substantial so as to give rise to
original jurisdiction in the district courts. The two concepts are quite dif-
ferent, and Long's statement about the former does not assist in deter-
mining the latter. The Supreme Court routinely reviews state court
decisions containing federal issues that do not give rise to federal ques-
tion jurisdiction in the district courts. For example, the existence of a fed-
eral defense in a state cause of action does not give rise to original
jurisdiction in the district courts, but does provide a basis for Supreme
Court review of a state court judgment. See, e.g., New York Times Co.
v. Sullivan, 376 U.S. 254 (1964) (reviewing First Amendment defense to
state libel action).
29
when is a private employee exercising his First Amendment rights as
against his private employer — is limited to the specific context of
this type of state statute. Because the First Amendment does not apply
to private employers, determining when a private employer can be
said to have fired an employee because of his exercise of his First
Amendment rights only has implications for other cases brought
under this South Carolina statute (or an analogous state statute), not
for First Amendment cases generally. As for the relative expertise of
federal and state courts, the First Amendment is an area of federal law
in which state courts are well versed. State courts, as courts of general
jurisdiction, must routinely decide issues that implicate the First
Amendment, for example when the First Amendment is asserted as
a defense to a state claim. See, e.g., Goodwin v. Kennedy, 552 S.E.2d
319, 324-25 (S.C. Ct. App. 2001) (discussing First Amendment prin-
ciples that limit state libel actions); Parker v. Evening Post Pub. Co.,
452 S.E.2d 640, 644 (S.C. App. Ct. 1994) (same).
In addition, the majority in Merrell Dow placed great emphasis on
the fact that no free-standing federal cause of action was available to
the plaintiff for the federal statute that had been incorporated into the
state cause of action at issue. The court explained that:
The significance of the necessary assumption that there is no
federal private cause of action thus cannot be overstated. For
the ultimate import of such a conclusion, as we have repeat-
edly emphasized, is that it would flout congressional intent
to provide a private federal remedy for the violation of the
federal statute. We think it would similarly flout, or at least
undermine, congressional intent to conclude that the federal
courts might nevertheless exercise federal-question jurisdic-
tion and provide remedies for violations of that federal stat-
ute solely because the violation of the federal statute is said
to be a "rebuttable presumption" or a "proximate cause"
under state law, rather than a federal action under federal
law.
Merrell Dow, 478 U.S. at 812 (footnote omitted). In this case, of
course, Dixon has no federal cause of action against Coburg under the
First Amendment or § 1983, because Coburg is not a state actor.
Thus, we are presented with a case where no free-standing federal
30
cause of action exists for the federal right asserted here (if it is a fed-
eral right at all), a factor whose significance "cannot be overstated."
Id.6
Considering all of the factors in this case, I cannot conclude that
this case falls within that "small class of cases where, even though the
cause of action is not created by federal law, the case's resolution
depends on resolution of a federal question sufficiently substantial to
arise under federal law within the meaning of 28 U.S.C. § 1331."
Ormet, 98 F.3d at 806. The South Carolina courts, like all state courts,
have much experience interpreting and applying the First Amend-
ment. Moreover, even assuming that the statute does incorporate a
question of federal First Amendment law, the South Carolina statute
asks the court to apply those First Amendment principles in an
entirely novel context — as against a private employer. The majority
makes reference to "First Amendment issues . . . of monumental
importance" in this case. Ante at 10. On the contrary, I would argue
that there are no First Amendment concerns at stake, for the First
Amendment has nothing to say about the acts of private employers.
Rather, the concern at stake here is free speech rights of private
employees as against their private employers, a concern created by
the South Carolina legislature but not present in the United States
Constitution. Given this unique creation of South Carolina law, there
is no need for national uniformity in this area, and South Carolina
____________________________________________________________
6
Indeed, given the tone of the language in Merrell Dow, one could be
excused for concluding that Merrell Dow had established a categorical
rule that when there is no free-standing federal cause of action, federal
question jurisdiction never exists over a state cause of action that incor-
porates that federal standard. The Supreme Court's conclusion in Merrell
Dow makes this factor sound dispositive: "We conclude that a complaint
alleging a violation of a federal statute as an element of a state cause of
action, when Congress has determined that there should be no private,
federal cause of action for the violation, does not state a claim arising
under the Constitution, laws, or treaties of the United States." Merrell
Dow, 478 U.S. at 817 (quotations and citation omitted). Nonetheless, this
court in Ormet concluded that "[t]here is a small class of cases where,
even though the cause of action is not created by federal law, the case's
resolution depends on resolution of a federal question sufficiently sub-
stantial to arise under federal law within the meaning of 28 U.S.C.
§ 1331." Ormet, 98 F.3d at 806.
31
state courts are better equipped to interpret and apply this statute. In
sum, I would hold that even if the First Amendment principles impli-
cated by the South Carolina statute can be said to present a "question
of federal law," that question is not "sufficiently substantial to arise
under federal law within the meaning of 28 U.S.C. § 1331." Ormet,
98 F.3d at 806.
The majority holds that the federal issue here is substantial not only
because of the First Amendment issues implicated, but also "because
of a possible conflict with our Title VII jurisprudence." Ante at 11.
Any conflict with Title VII, however, would arise as a federal defense
to the plaintiff's claims, and as such is insufficient to confer federal
question jurisdiction. See Merrell Dow, 478 U.S. at 808 ("A defense
that raises a federal question is inadequate to confer federal jurisdic-
tion." (citation omitted)). The majority does not claim that possible
conflict with Title VII is itself sufficient to provide federal question
jurisdiction, but rather asserts that the existence of a significant fed-
eral defense is relevant to whether the federal question embedded in
the state statute is substantial. However, the substantiality vel non of
a question of federal law embedded in a state cause of action is not
affected by other factors, such as a possible federal defense, that are
unrelated to the federal question itself. Certainly the Court in Merrell
Dow, which repeated the well-established principle that federal
defenses are inadequate to confer federal jurisdiction, id., made no
suggestion that federal defenses might nonetheless be relevant to the
substantiality of the question of federal law presented in the state
cause of action. Nor can I find any decision in which a court consid-
ered the existence of a possible federal defense when determining the
substantiality of a question of federal law. Here, we are simply asked
to determine whether the First Amendment issues implicated by the
South Carolina statute are sufficiently substantial to give rise to fed-
eral question jurisdiction. The existence of a Title VII defense is irrel-
evant to that determination.
III.
In sum, I conclude that the First Amendment principles implicated
by Counts III and IV of Dixon's complaint do not constitute a ques-
tion of federal law. In the alternative, even if Counts III and IV do
depend on the resolution of a question of federal law, that question
32
is not sufficiently substantial to give rise to federal jurisdiction.
Finally, I conclude that the existence of a federal defense to these
claims has no bearing on whether any question of federal law pre-
sented is substantial. I agree with the majority that the federal ques-
tion presented in Count I is insubstantial, and concur in the judgment
insofar as it dismisses Count I for lack of jurisdiction. As to the
remaining counts, I would reverse the district court's judgment and
remand for dismissal for lack of federal jurisdiction.
33