Koran burner Derek Fenton fired from his job at NJ Transit

A New Jersey man who burned pages from the Koran outside a planned mosque near Ground Zero was fired from his job at NJ Transit, sources and authorities confirmed.

Derek Fenton, an 11-year employee at NJ Transit, was fired Monday, the agency said in a statement, two days after he was photographed burning the Koran.

"Mr. Fenton's public actions violated New Jersey Transit's code of ethics," NJ Transit said.

Wow! What a great idea! Get homosexuals to burn korans! A true dilemma for liberals!"

I think for some strange reason the Koran trumps everything else for them. Go figure. Muslims are against everything that they have been for for decades, homosexuality, women's liberation, separation of church and state, censorship, wars and the list goes on and on. I imagine the Muslims would be anti marijuana and drugs also which is a big part of life for many libs.

It seems that what libs are actually against more than anything else is the true God of the Christians and the Jews who Muslims are the greatest enemy of. The greatest enemy of my greatest enemy is my best friend?

"I think for some strange reason the Koran trumps everything else for them."

That seems to be the case. In just this past decade, well over a hundred Saudi Arabian homosexual men have been convicted of homosexuality. Some have been executed, many other have been lashed - which is a brutal and barbaric punishment.

Similar events have transpired in Iran, Malaysia and other Muslim theocracies. However, this aspect of Islam is virtually never spoken about in the media. Your observation can be the only explanation why - "sensitivity" to Islam trumps all, even the most orthodox liberal positions.

Unfortunately, the law on this is a tad vague.

There have been two important cases which have distinguished and narrowed Pickering: Connick v. Myers and Garcetti v. Ceballos.

Connick v. Myers held that even when an employee is speaking on a matter of public concern, discipline or termination may still be justified if the government's interest in the effective and efficient fulfillment of its responsibilities to the public outweighs the employee's free speech interest. In that case, the complained-of speech constituted at least some degree of insubordination, and the Court held that the government-employer was entitled to some degree of deference in maintaining working relationships in the office. (As a side note, the Connick in that case is New Orleans DA Harry Connick, musicial Harry Connick Jr.'s father).

Garcetti v. Ceballos, decided in 2008, held that public employees speaking in their official capacity have no personal First Amendment protection from termination for that speech.

Of course, those are both free speech clause cases, and I think you raised the possibility of a Free Exercise Clause claim. On that, the most recent case I'm aware of is Employment Division v. Smith, where the Supreme Court held that it was constitutionally permissible for Oregon to fire an employee for using Peyote off the job, even though the employee was a Native American who was consuming Peyote for religious purposes.

Trying to come up with a clear rule from all of these cases is difficult, but I think, in this case, it comes down to one question: Does the employee's off-duty public Koran burning impede the NJ Transit Authority's ability to effectively and efficiently fulfill its public responsibilities? Eugene Volokh doesn't think so, but I am not sure I agree. Unlike Pickering, the speech here was highly inflammatory (no pun intended) and directed at a religion adhered to by a significant number of New Jerseans who are served by the Transit Authority, and public book-burning is generally considered unruly and distasteful behavior. I think the NJTA (or whatever their initialism is) has a pretty strong argument that they were within their discretion. It could certainly be said to affect his ability to function in the work place as much as getting high on Peyote over the weekend does.

On a personal note, as a public employee myself, I would certainly expect to be fired if I participated in a public Koran-burning. Of course, I am a judicial employee and my immediate boss is an elected official.

Also, I do have one question that bears consideration: If Mr. Frenton had participated in Fred Phelps' other favorite activity, protesting at servicemen's funerals, would anyone here be questioning the NJ Transit Authority's right to fire him for that? I wouldn't. Protesting at a funeral, like burning the holy book of a major religion, is just plain unseemly behavior. I don't think it is unreasonable for a public employee to be expected to exercise his right to free speech with at least a minimum of public decorum. I don't think the courts will, either.

I should add the caveat that I am only talking about the 1st Amendment. Undoubtedly Mr. Frenton is part of a union which has a CBA with the state, and that is a whole other ball of wax. My experience with employment law is limited to a few issues (free speech and “whistleblower” statutes being one of them).

Also, I don’t know what Frenton’s job was within the Transit Authority. If he’s a janitor or a mechanic or something else that doesn’t deal at all with policy or with the public, then his public behavior is probably irrelevant to his job, the application of the rule is going to be different, and Volokh would probably be right.

"If Mr. Frenton had participated in Fred Phelps' other favorite activity, protesting at servicemen's funerals, would anyone here be questioning the NJ Transit Authority's right to fire him for that? I wouldn't.

You mean anyone other than the ACLU? Probably not, but I'd wager a week's pay the ACLU would. I wonder if they'll assert themselves here.

Like I said, my experience so so painfully abbreviated in this are of law, I recognize that what might seem logical (not firing public employees for exercising their 1A rights), may very well be plainly legal (or illegal).

"Eugene Volokh doesn't think so, but I am not sure I agree."

Thanks for the link. I finally had some time to read all the comments. For that site, the comments are remarkably thin with respect to case law citations, affirming what you asserted earlier - the law is a tad vague.

There is one thing that I'm surely confident about - this issue isn't going away anytime soon. I'm not sure this is the case that will settle the law, but the writing is on the wall. There will be more of these kinds of retaliatory events, and that will sure prod the judiciary to act.

In my mind, I keep coming back to this. If freedom of religion gives freedom to praise our supernatural deities, must it also protect those who wish to blaspheme those same supernatural deities, does it not?

I think it does give him that freedom. The problem is that your freedom from being fired by the government is a lot narrower than your freedom from being arrested by the government. If the government employer can make a convincing argument that some prohibition is necessary for them to effectively fulfill their public function, then they are generally given deference in their decision to fire those who violate those prohibitions.

Also, and these are just my instincts talking, the act of burning the Koran will probably be viewed a lot differently than had he simply said "I hate Islam" or even "I hate Muslims". Even though the Supreme Court has held that both flag-burning and cross-burning are constitutionally protected speech, the Court in both cases seemed to recognize that such burnings were qualitatively different than other, verbal, types of speech.

Publicly burning the Koran is more than just the expression of an opinion or religious belief. It is a gross violation of generally establish standards of public decorum. Burning religious or national symbols or other effigies is legally tolerated, but deeply frowned upon by most of society. While it may not be prosecutable criminally, it is probably sanctionable by a public employer.

I think most of us understand that if we engage in willfully infamous behavior, many around us, particularly our employers, will want to disassociate themselves from us if they value their own reputations. Laugh as we might about the "good name" of the New Jersey Transit Authority, they do have a legitimate interest in their own reputation, and that interest will probably be held to outweigh Mr. Frenton's interest in the freedom to engage in extreme, disorderly, and, frankly, menacing forms of "speech".

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