"And they have the right to fire him. Freedom of speech, doesn't mean freedom from the consequences of that speech. " Except when the employer is the government. This is why private schools can limit, restrict or entirely prohibit what students may say, wear or write in class, and public schools can't - at least not to the same degree.
Students enjoy pretty robust freedoms of speech in public school (no, not as robust as an adult per the Court), but private school has NO OBLIGATION to extend those same 1A rights to their own students. The case law is ample in this regard. Government, city/state/federal MAY not infringe on the civil rights, to include 1A rights of their employees.
Pickering v. Board of Education, 391 U.S. 563 (1968) is the case that set the precedent for which all subsequent cases are heard today. Pickering is clear, unless statement made by the employee is "recklessly false", then the school may not "retaliate" against the employee for speaking out on important public issues.
After thinking about this more last night, I think the guy clearly has a claim, and it will be interesting how the court rules. It's actually a perfect case to test the comment that Breyer made just yesterday.
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.
Oh, and one more thing I just remembered. If Frenton was more than an at-will employee, then he may have a Due Process claim if he was fired without a hearing. Of course, I am not sure that that can't be waived by contract, so again the CBA would come into play.