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Thread: Koran burner Derek Fenton booted from his job at NJ Transit

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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by hazlnut View Post
    Okay, my Constitutional scholar friend, then you explain the 'harm principle'... 'imminent lawless action'.

    Why don't you tell us everything you know about limits on free speech? 'Miller test, anyone'??

    And as Teabrains remind us everyday, speaking when you have no clue what you're talking about is covered.
    For someone who seems to be holding himself out as an expert on what the Supreme Court says, you don't appear to have a clue what you're talking about.

    Hint: This has nothing to do with Miller. This is about the Pickering/Connick/Garcetti line of cases.
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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by RightinNYC View Post
    However, this guy is a government employee, which means that the employer is bound by the First Amendment and cannot fire him for protected speech.
    I'm not 100% certain that this is the case. There is precedent for limiting the extent of First Amendment freedoms for public employees e.g., under the Hatch Act, which has been upheld by the U.S. Supreme Court on a number of occasions.

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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by RightinNYC View Post
    For someone who seems to be holding himself out as an expert on what the Supreme Court says, you don't appear to have a clue what you're talking about.
    Oh, why is that?

    Hint: This has nothing to do with Miller. This is about the Pickering/Connick/Garcetti line of cases.
    HINT: I NEVER SAID IT DID!!

    For someone who is bitching about others not reading the whole thread, you're doing a piss-poor job of keeping up yourself...

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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by donsutherland1 View Post
    I'm not 100% certain that this is the case. There is precedent for limiting the extent of First Amendment freedoms for public employees e.g., under the Hatch Act, which has been upheld by the U.S. Supreme Court on a number of occasions.
    However the Hatch Acts limitations deal with instances where your position as a government employee is being leveraged to gain political influence which is thus a conflict of interest as it uses tax payer funds essentially for political reasons. It prohibits things like using your authority to influence an election, instances there there are conflicts of interest regarding political entities doing business with your agency, acting while on duty or in the capacity of your employment (such as in uniform), or running for office. Indeed, it specifically PERMITS ones ability to express opinions about candidates AND issues.

    Disallowing the expression of ones opinion on an issue, and its been designated that actions such as burning of objects can be an "expression" of speech, is actually specifically prohibited in the Hatch Act.

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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by donsutherland1 View Post
    I'm not 100% certain that this is the case. There is precedent for limiting the extent of First Amendment freedoms for public employees e.g., under the Hatch Act, which has been upheld by the U.S. Supreme Court on a number of occasions.
    It's more complicated than my initial statement implied, but I didn't think it necessary to go into all the minutiae at the time. As we've since gotten into a more in-depth discussion of the issues, I've expanded on that statement further and will do so again here.

    It's true that in certain situations the government can discipline employees for speech that would otherwise be considered protected. There are different tests depending on whether the employee is on-duty or off-duty, and those tests may be applied differently depending on what field the employee is in, what his duties entail, and the nature of the speech/conduct. When an employee is on duty, he may be required to abide by relatively stringent guidelines, lest he be seen as speaking on behalf of the government. When the employee is off duty, the government may only regulate his speech if such regulation is "necessary for [the government] to operate efficiently and effectively."

    This is most commonly the case when the employee is speaking about matters relating to his employment (a prosecutor complaining about improper police practices, a teacher writing a letter to the editor about the school administration) or when the employee is otherwise in a position of unique influence over a population (a prison guard who expresses white supremacist leanings, a police officer who makes racist comments).

    As this guy appears to be a low level transit worker who was not holding himself out as a representative of the government, was not commenting on matters relating to his employment, and does not appear to be in a position of authority or influence, I believe that his speech falls solidly within the sphere of protected expression. Accordingly, I do not believe that the government may constitutionally fire him for his actions.
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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by hazlnut View Post
    Oh, why is that?



    HINT: I NEVER SAID IT DID!!

    For someone who is bitching about others not reading the whole thread, you're doing a piss-poor job of keeping up yourself...
    So you were just purposefully trying to derail the thread with bait?

    If Miller has nothing at all to do with this, why did you bring it up in the first place?

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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by RightinNYC View Post
    Again, that's not the legal standard. No matter how many times you repeat it, it will never be any less wrong.



    The Volokh Conspiracy New Jersey Public Transit Employee Fired for Blasphemy
    No matter how many times you post the blasphemy case, the few parallels to this story do not improve.

    I realize this NJ transit guy was not in the PR end of the office, and I realize he was off-duty, but did he sign an ethical code of conduct when he took the job? Did he agree to not do certain things as an employee of that office?

    And to the extent burning the Koran has brought negative attention to the NJ transit will also become a valid issue, if this clown tries to get his job back.

    All your b.s. posturing and trying to sound like an authority is laughable. You're pontificating, posting loosely related stories about cases that have only a few similarities. Anybody reading the whole thread will not be impressed.

    Bottom line - The story just broke and we have very little information. You have an opinion about how it will play out. I have an opinion, too.

    Let's see what we see, shall we?

    I don't think this guy will be back at work next week. But maybe he will. I feel sorry for those that have to work with him if that does happen.

    Free speech is a right. And people who encounter this asshole will exercise it. Parents of those serving in Afghanistan. Muslims who live in his community.
    I feel bad for his kids, too.

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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by Zyphlin View Post
    However the Hatch Acts limitations deal with instances where your position as a government employee is being leveraged to gain political influence which is thus a conflict of interest as it uses tax payer funds essentially for political reasons. It prohibits things like using your authority to influence an election, instances there there are conflicts of interest regarding political entities doing business with your agency, acting while on duty or in the capacity of your employment (such as in uniform), or running for office. Indeed, it specifically PERMITS ones ability to express opinions about candidates AND issues.

    Disallowing the expression of ones opinion on an issue, and its been designated that actions such as burning of objects can be an "expression" of speech, is actually specifically prohibited in the Hatch Act.
    I don't have all the nuances and facts that might be relevant. As a result, I'm not 100% sure of the outcome of legal action and wanted to note that there have been precedents for imposing some limits, albeit relatively narrow ones, on First Amendment protections for public employees. In other words, while the individual could well win in any litigation, I'm not sure that a win is completely assured.

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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by RightinNYC View Post
    As this guy appears to be a low level transit worker who was not holding himself out as a representative of the government, was not commenting on matters relating to his employment, and does not appear to be in a position of authority or influence, I believe that his speech falls solidly within the sphere of protected expression. Accordingly, I do not believe that the government may constitutionally fire him for his actions.
    You may well be right. I'm just not 100% sure. It will be interesting to see if he attempts litigation and, if so, what facts are introduced and how the case is decided.

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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by hazlnut View Post
    No matter how many times you post the blasphemy case, the few parallels to this story do not improve.
    What "blasphemy case"? That link is discussing this very situation, not some other case.

    Thanks for highlighting the fact that you didn't actually read anything that was proffered. I did find it amusing that you don't see the parallels between this case and this case.

    I realize this NJ transit guy was not in the PR end of the office, and I realize he was off-duty, but did he sign an ethical code of conduct when he took the job? Did he agree to not do certain things as an employee of that office?
    And as has been pointed out repeatedly, the government may not contract around the Constitution:

    Quote Originally Posted by Supreme Court
    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).
    If the "ethical code of conduct" restricts speech that would otherwise be constitutionally protected, the "ethical code of conduct" may not constitutionally be applied.

    All your b.s. posturing and trying to sound like an authority is laughable. You're pontificating, posting loosely related stories about cases that have only a few similarities. Anybody reading the whole thread will not be impressed.

    Bottom line - The story just broke and we have very little information. You have an opinion about how it will play out. I have an opinion, too.
    You're absolutely entitled to an opinion, and as I've noted several times, a court may well find that this expression did impact NJ Transit's ability to effectively conduct business. My objections in this thread have not been directed to arguments in support of that position, but to erroneous statements of law.
    People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.

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