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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 RightinNYC View Post
    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."
    Doesn't the NJ Transit Dept provide service to Muslims??

    Don't Muslims work for the NJ Transit Dept.?? -- The hate speech is disruptive to the work environment.

    And should a new video come out about Radicals being angered by the NJ Transit Devil who burned their holy book... Even if there was little or no chance of any attack being carried out, wouldn't the negative PR be disruptive to business?

    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).
    Interesting. So, its really going to come down to how much direct contact he has with the public. Since his photo was plastered all over the paper...

    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.
    Well, now that's more like it. Your opinion.

    Like I said, we'll see what we see. If he's back at work next week, you were right.

    What's funny is with all the b.s. talk around here trying to portray the majority of Muslims as radical and dangerous-- Muslims who work with this asshole or who encounter him, will ignore him. No harm will come to him from mainstream Muslims. In their eyes, he's a pathetic bigot.

    However, had this jagoff burned a Puerto Rican flag or wiped his bottom with some symbol of Italian-American pride, he'd be getting a beat down everyday. And he'd deserve. Unfortunately, his wife and kids don't deserve the negative attention. I do feel bad for them.

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

    Quote Originally Posted by RightinNYC View Post
    Incredibly dumb move by NJ transit. Regardless of what their employee handbook says, this is pretty clearly protected speech.
    Is he protected from Congress and his employer?
    IIRC, a waitress got fired for expressing her opinion about a customer on Facebook. I feel confident that the waitress was well withing her rights to express herself. And I believe that she's protected against criminal charges for expressing her opinion. However, I am not sure that she's protected from her employer.

    Do you have any case law, whatnot or something or another that could clarify whether or not the First amendment protects people from being fired?
    I may be wrong.

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

    Quote Originally Posted by hazlnut View Post
    Doesn't the NJ Transit Dept provide service to Muslims??

    Don't Muslims work for the NJ Transit Dept.?? -- The hate speech is disruptive to the work environment.

    And should a new video come out about Radicals being angered by the NJ Transit Devil who burned their holy book... Even if there was little or no chance of any attack being carried out, wouldn't the negative PR be disruptive to business?
    I think you're taking an unjustifiably broad view of the term "necessary." The dude's job is apparently to look at train schedules and ensure that there are enough trains on each track for the commuters, which would mean he has no contact with the outside public.

    More importantly, the idea that he can be fired simply because a coworker or member of the general public could be offended has no support in the law. If the test were read that broadly, the government could fire anyone for anything even mildly controversial. "Necessary for [the government] to operate efficiently and effectively" very plainly means something more than "may offend some person."

    Well, now that's more like it. Your opinion.
    Yes, my opinion, based on the application of the relevant law. The reason why I was disagreeing with you so vehemently is because you were offering your opinion based on something other than the relevant law. We're each entitled to our own opinions, not our own constitutional tests.

    Like I said, we'll see what we see. If he's back at work next week, you were right.
    I doubt he'd be back at work either way, as the courts generally take a bit longer to handle cases. Of course, NJ Transit may try to avoid all that and avert a suit by offering him his job back immediately, as some are calling for:

    Lesniak Urges Re-Hiring Of Fired NJ Transit Worker | Politicker NJ

    What's funny is with all the b.s. talk around here trying to portray the majority of Muslims as radical and dangerous-- Muslims who work with this asshole or who encounter him, will ignore him. No harm will come to him from mainstream Muslims. In their eyes, he's a pathetic bigot.

    However, had this jagoff burned a Puerto Rican flag or wiped his bottom with some symbol of Italian-American pride, he'd be getting a beat down everyday. And he'd deserve. Unfortunately, his wife and kids don't deserve the negative attention. I do feel bad for them.
    Not sure what you're basing any of this on or why you think it's relevant.
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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by RightinNYC View Post
    Unless his off-duty speech is made pursuant to his official duties or otherwise interferes with the agency's ability to effectively provide services, he can say whatever the hell he wants.
    Overview of the general concept: www.law.duke.edu/shell/cite.pl?59+Duke+L.+J.+1+pdf (pdf)
    The author of this document seems to imply that the guy would be likely to lose in court.
    Courts also increasingly consider government workers to be speaking as employees even when away from work, deferring to the government’s assertion that its association with employees who engage in certain off-duty expression undermines its credibility in communicating its own contrary views. Implicit in courts’ reasoning is the premise that a public entity’s employment relationship with an individual who engages in certain expression communicates a substantive message to the public that the government is entitled to control.
    I may be wrong.

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

    Quote Originally Posted by Simon W. Moon View Post
    Is he protected from Congress and his employer?
    IIRC, a waitress got fired for expressing her opinion about a customer on Facebook. I feel confident that the waitress was well withing her rights to express herself. And I believe that she's protected against criminal charges for expressing her opinion. However, I am not sure that she's protected from her employer.

    Do you have any case law, whatnot or something or another that could clarify whether or not the First amendment protects people from being fired?
    The issue here is that he works for the government, not for a diner. If he worked for a private train contractor, he could almost certainly be fired for this. It's because he works for a government entity that the employer is limited by the constitution.

    Main cases:

    FindLaw | Cases and Codes - Garcetti v. Ceballos, one of the most recent cases - a 5-4 loss for a prosecutor who had criticized his department's warrant procedures.

    PICKERING V. BOARD OF EDUCATION, 391 U. S. 563 :: Volume 391 :: 1968 :: Full Text :: US Supreme Court Cases from Justia & Oyez - Pickering v. Board of Ed, the foundational case - a victory for a teacher who had written a letter to the editor.

    FindLaw | Cases and Codes - Connick v. Myers, a loss for a prosecutor who had written a letter criticizing her supervisors

    Analysis:

    http://www.firstamendmentcenter.org/...cEmployees.PDF (pdf) - A general discussion of the issues involved in public employees and free speech.

    http://www.law.duke.edu/shell/cite.p...ke+L.+J.+1+pdf (pdf download) - Law Review article discussing the aforementioned SC cases and others over the past few decades and analyzing how the lower courts have applied them.
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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by Simon W. Moon View Post
    The author of this document seems to imply that the guy would be likely to lose in court.
    Courts also increasingly consider government workers to be speaking as employees even when away from work, deferring to the government’s assertion that its association with employees who engage in certain off-duty expression undermines its credibility in communicating its own contrary views. Implicit in courts’ reasoning is the premise that a public entity’s employment relationship with an individual who engages in certain expression communicates a substantive message to the public that the government is entitled to control.
    The cases that the author is referring to are generally the types of cases mentioned above - "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)."

    If you go to the discussion of how that law is applied (pages 16-20), you'll see that almost every example where a government employee lost involves a police officer. The only other cases where I've seen the law applied so broadly are the ones mentioned above.
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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by ric27 View Post
    Yes, we have rights. Yes those rights are affirmed in the constitution. But there are reasonable limitations to all of those rights. Those limitations come into effect when you are infringing on other's rights in the exercise of your own. Yours don't trump theirs. Your freedom of speech is also limited when it is false or causes harm. The first can get you a civil suit for slander or libel, the 2nd, criminal charges of one kind or another.

    Beyond that, you can say whatever the hell you want
    The Harm Prinicple. You are the only one I've seen allude to it. Do you think the harm principle applies to Derek Fenton's hate speech?


    There have been many good arguments on this thread that suggest it might (IE: might lead to terrorist attack against the NJTrains, might lead to violence against Muslims, might lead to violence against Americans troops or Americans abroad, might lead to violence against Derek Fenton) But the way I understand the harm principle is that "might" doesn't qualify because the harm has to actually to take place in the first instances after the hate speech. Freedom of speech shouldn't be limited or infringed upon because it might inspire someone to do harm later. But should it be limited if it is known that the hate speech will cause harm later?

    Freedom of Speech (Stanford Encyclopedia of Philosophy)

    The above link uses a hate speech comparison of a KKK parade in a predominately black neighborhood. The idea of the KKK parade was to target a group of people in order to offend, intimidate and cause fear. The blacks were obviously offended and upset, but they were not harmed as per the harm priniciple, so the KKKs parade was considered protected speech. But did the blacks have the choice to avoid the parade since it was in their neighborhood? Not really, because they lived there. So was their right to equality limited by the KKKs parade or their right to feel secure in their neighborhood or in a civil society protected?

    A comparison could be made when without warning, Derek Fenton burned a Koran in front of the proposed Mosque and someone took a picture for all the world to see. What was Fenton's motive, was it to offend, intimidate and cause fear to the Muslims or was it simply a form of protest against building the mosque? No Muslims were harmed as per the harm principle, but was their right to equality limited or their right to feel secure in a civil society or secure to practice their religion, protected?

    The other question I have is, does the government when acting as an employer have a right to set standards of conduct and ethics to it's employees? I would say yes, but the idea that the employees would have to get permission, be it from the government or from a private company, in order to participate in a political activity outside of and unrelated to their work, does seems kind of unconstitutional, imo.
    Last edited by Moot; 09-16-10 at 02:41 AM.

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

    Quote Originally Posted by RightinNYC View Post
    FindLaw | Cases and Codes - Garcetti v. Ceballos, one of the most recent cases - a 5-4 loss for a prosecutor who had criticized his department's warrant procedures.
    The court protected Ceballos's speech in this instance pointing out that Ceballos's allegations of wrongdoing and governmental misconduct were "inherently a matter of public concern". This seems reasonable and right.
    What exactly was Mr. Fenton expressing that is inherently a matter of public concern?
    Mr Fenton's disdain for Islam?
    Is that really a matter of public concern? Is Mr Fenton's disdain really of the same caliber as a deputy district attorney's allegations of governmental misconduct?
    Quote Originally Posted by RightinNYC View Post
    PICKERING V. BOARD OF EDUCATION, 391 U. S. 563 :: Volume 391 :: 1968 :: Full Text :: US Supreme Court Cases from Justia & Oyez - Pickering v. Board of Ed, the foundational case - a victory for a teacher who had written a letter to the editor.
    The court cited "a matter of legitimate public concern" as the letter dealt with how the school district allocated public funds.
    It's not clear to me how knowledge Mr. Fenton's disdain is of equal public concern.
    What are the potential consequences that the public would suffer if we had never known about Mr Fenton's dislike of Islam?
    I may be wrong.

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

    Quote Originally Posted by Simon W. Moon View Post
    The court protected Ceballos's speech in this instance pointing out that Ceballos's allegations of wrongdoing and governmental misconduct were "inherently a matter of public concern". This seems reasonable and right.
    Ceballos actually lost that case, and the reason for the loss was that he was speaking about a matter within the scope of his employment, so the first amendment did not apply.

    The court cited "a matter of legitimate public concern" as the letter dealt with how the school district allocated public funds.
    It's not clear to me how knowledge Mr. Fenton's disdain is of equal public concern.
    What are the potential consequences that the public would suffer if we had never known about Mr Fenton's dislike of Islam?
    What exactly was Mr. Fenton expressing that is inherently a matter of public concern?
    Mr Fenton's disdain for Islam?
    Is that really a matter of public concern? Is Mr Fenton's disdain really of the same caliber as a deputy district attorney's allegations of governmental misconduct?
    The definition of "public concern" is not that clear, but I think it's exceedingly likely that this would qualify. The purpose of the "public concern" prong is not to evaluate the newsworthiness or value of the employee's speech, but rather to look at whether it's actually job-related speech and should thus be treated differently.

    The threshold prong of this two-part test — the “public-concern” requirement — has proven to be a difficult issue for the federal courts, which have reached widely divergent conclusions. How can a court determine whether speech addresses a matter of public concern? In Connick, the Supreme Court wrote that a matter of public concern is speech “relating to any matter of political, social, or other concern to the community.”

    The Court explained that “whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record."

    ...

    Often the determinative legal issue in public-employee speech cases is the “public concern” requirement. Employers frequently argue that the employee is speaking as
    an employee rather than as a citizen. They contend that the employee’s speech is
    better characterized as an expression of personal grievance than as a matter of
    public importance. Indeed, some courts take a narrow view of the type of employee speech that can be said to touch on matters of public concern. As one federal appeals court explained in a recent decision:

    When a public employee’s speech is purely job-related, that speech will not be deemed a matter of public concern. Unless the employee is speaking as a concerned citizen, and not just as an employee, the speech does not fall under the protection of the First Amendment.
    http://www.firstamendmentcenter.org/...cEmployees.PDF

    The borderline cases are those where the employee's speech somehow relates to his employment. Where the speech is not related to the employee's job, it's almost always a matter of public concern. Even under the narrow view mentioned above, this would qualify.

    I think it would be very difficult for NJ Transit to argue that the symbolic burning of a Quran at ground zero on 9/11 in the midst of a debate about the construction of a mosque two blocks away did not "relat[e] to any matter of political, social, or other concern to the community."
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    Re: Koran burner Derek Fenton booted from his job at NJ Transit

    Quote Originally Posted by DrunkenAsparagus View Post
    That would be stupid and a very bad political move, but yes, he does have that right.
    DA, do you really want to allow government officials to fire non-political workers who don't agree/support/vote for them? You'd be giving certain officials immense power to force government employees to do their political bidding. Normally, I'd support the employer's right to terminate at will, but given that we're talking about the government individual political freedom trumps the government's right to hire at will.
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