Koran burner Derek Fenton booted from his job at NJ Transit

[kpete]

Source: New York Daily News


Koran burner Derek Fenton booted from his job at NJ Transit

By Alison Gendar, Kevin Deutsch and Pete Donohue
DAILY NEWS WRITERS


The protester who burned pages from the Koran outside a planned mosque near Ground Zero has been fired from NJTransit, sources and authorities said Tuesday.

Derek Fenton's 11-year career at the agency came to an abrupt halt Monday after photographs of him ripping pages from the Muslim holy book and setting them ablaze appeared in newspapers.

Fenton, 39, of Bloomingdale, N.J., burned the book during a protest on the ninth anniversary of Sept. 11 outside Park51, the controversial mosque slated to be built near Ground Zero.

He was apparently inspired by Pastor Terry Jones, the Florida clergyman who threatened to burn the Koran that day but later changed his mind.

Read more: http://www.nydailynews.com/ny_local/2010/09/14/2010-09-14_koran_burner_derek_fenton_fired_from_his_job_at_nj_transit.html

[WillParkinson]

1. I have the feeling this will be a court case...

Something about his first amendment rights.

[tk2kewl]

2. my guess is that it won't even get that far.

he should be reinstated (and mocked).

[slackmaster]

3. ACLU has chimed in, but I see no sign of support from the NJ Transit workers' union

Nor any obvious way to see the NJTransit code of ethics for employees.

[djg21]

131. It is somewhat irrelevant.

There looks to be a colorable claim here for First Amendment retaliation, which is actionable under 42 U.S.C. 1983. Undoubtedly, some teabagger lawyer will take the case to garner publicity if there is a low probability of success.

I think the more relevant question is what is in this clown's employment history, and if there existed other legitimate, non-retaliatory reason to terminate him. For all we know, he was on sick leave when he appeared on the news "exercising his right to protest."

[Love Bug]

4. DId he do it at work? Was he wearing his uniform when doing it?

If not, as reprehensible as his actions were, he should not lose his job for it. No one should lose their job for exercising their rights.

[E-Z-B]

30. I agree.

[SusanaMontana41]

83. I'm with you. n/t

[mjane]

85. Generally speaking, from the legal analysis I have read

he has a pretty good case for reinstatement. As a public employee, essentially...

Here's what a UCLA law Prof. has to say...

"The government may restrict such speech, but only if the restriction is “necessary for their employers to operate efficiently and effectively” (with “necessary” being read a bit loosely). It’s hard for me to see much of an argument that Fenton’s expression interferes with the employer’s effectiveness by undermining public confidence in the employer; Fenton isn’t a spokesman for the employer, or in a position where the public must be able to count on his fairness in exercising discretion with regard to members of the public (e.g., a police officer).

The one argument I can see the government potentially persuasively making is that Fenton’s expression might lead to a risk of terrorist attack on NJ Transit trains; such a “heckler’s veto” might be permissible when it comes to the government’s actions as employer, as opposed to the government’s actions as sovereign policing the speech of private people. But if that’s so, then unfortunately it’s one other item we have to add to the growing Extremist Muslim Thugs Win file; and unfortunately the bigger the file gets, the more incentive the thugs — including at some point thugs of other ideological stripes — have to keep being violent and threatening violence."

[msanthrope]

142. That's a bit facile---

the law prof. is correct, but that's only PART of the Rankin test.

The state is also allowed to consider the affect of the speech on workplace relations and efficency of operations.

"In performing the balancing, the statement will not be considered in a vacuum; the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose. See id., at 152-153; Givhan v. Western Line Consolidated School Dist., 439 U. S. 410, 415, n. 4 (1979). We have previously recognized as pertinent considerations whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise. Pickering, 391 U. S., at 570-573.

These considerations, and indeed the very nature of the balancing test, make apparent that the state interest element of the test focuses on the effective functioning of the public employer's enterprise. Interference with work, personnel relationships, or the speaker's job performance can detract from the public employer's function; avoiding such interference can be a strong state interest. From this perspective, however, petitioners fail to demonstrate a state interest that outweighs McPherson's First Amendment rights. While 389*389 McPherson's statement was made at the workplace, there is no evidence that it interfered with the efficient functioning of the office. The Constable was evidently not afraid that McPherson had disturbed or interrupted other employees — he did not inquire to whom respondent had made the remark and testified that he "was not concerned who she had made it to," Tr. 42. In fact, Constable Rankin testified that the possibility of interference with the functions of the Constable's office had not been a consideration in his discharge of respondent and that he did not even inquire whether the remark had disrupted the work of the office.<14>"


http://scholar.google.com/scholar_case?case=11624130773709942845&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Further, the 2nd circuit case Guiliani v. Pappas, where a cop was fired for sending out anonymous, racist material, will influence this case. (Different circuits, but they do influence each other.)

[golfguru]

109. You are right on! /

[proteus_lives]

112. Yep.

[closeupready]

5. I oppose Koran-burning, but firing him was wrong.

I bet he files suit.

[Bragi]

6. Maybe they were concerned about security impacts and the coming fatwa

There is no doubt but that this man's life changed profoundly when he did what he did.

As the report said: "He looked nervous, like he was starting to think it wasn't such a good idea," the police source said.

To understand where his life is headed, think about Salmon Rushdie, who has had to be protected by security since a fawtwa was put on him years ago for a much tamer expression of speech than what Derek Fenton has done in burning the Quran.

Now think "Salmon Rushdie working on a commuter train."

Personally, I support his right to free speech.

I believe he will legally prevail in the end and the NJ Transit will have to reinstate and/or pay him.

But life as he knew it is over.

[kestrel91316]

7. He'll have to have an office job or janitorial or such. If he was a train

operator, he is now too big a security risk because he made himself personally a target.

Idiot.

[Bragi]

16. He may need 24/7 security indefinitely

If he is specifically named in a fatwa, then I believe there is an obligation for police to protect him, since his life is being threatened as a result of engaging in perfectly legal and protected free speech.

In the end, it matters not whether this speech was wise, or offensive, or whtehr most people agreed or disagreed with what he did.

What matters is that if his life is threatened because of his legal expression of free speech, then society has an obligation to protect him.

[mcollins]

66. he made himself personally a target.

"he made himself personally a target"

Think about that for a minute. By burning a book his life is completely changed. Why? Because people who think the book is holy now want to kill him. His bosses are now afraid to keep him on the job because they might come under attack. The President warned that this action may cause harm to our troops overseas.

By our constitution he had the right to do this. Does the people who now want to kill him have that right?

[customerserviceguy]

98. Well stated

It's the fanatics that value an object over a human life who are the real problem.

[ClarkUSA]

8. Good. This Tea Party asshole will now get the gov't. handouts he despises so much (UI, food stamps)

Maybe NJ Gov. "Billion-Dollar Tax Cut For The Wealthy" Christie will offer him a job in solidarity.

[denverbill]

9. In the meantime he will file a frivilous lawsuit with some activist judge.n/t

[ClarkUSA]

14. Looks like the ACLU is angling for the job, which is why I am not a member anymore. nt

[Bragi]

17. I am, and quite supportive of them protecting the right to free speech /nt

[ClarkUSA]

22. Yelling "fire" in a theatre, burning a Koran when troops are in the harm's way; it's the same to me

One's right to free speech ends when it comes at the expense of endangering others.

[Bragi]

68. The "danger to troops" thing is nonsense

The troops abroad are the most powerful, deadly, best-equipped army in human history. They are already at war against a highly-motivated enemy. Burning a book changes nothing for them.

Having said that, there is enhanced real risk not to troops, but to American "soft targets" abroad -- embassies, businesses, tourists, etc. That is the real concern.

[mbperrin]

75. So given all that power, why haven't we beaten two countries who don't have a ship

or a plane between them?

Sure didn't take that long to be Germany and Japan, and they were major powers.

Might wanta rethink that power thing.

[Bragi]

97. Yes, the war is being lost

The war is being lost because there is no real government to hand anything over to, just a corrupt gang of war barons, drug lords, tribal chieftains, and religious medevilists running one of the poorest countries on the planet.

[mbperrin]

106. So we beat Germany and Japan because we had a real government

ready to hand things over to?

I think MacArthur would be very surprised.

[golfguru]

110. Obviously you don't understand difference betw Guerrilla war &

conventional war. The Afghani insurgents/terrorists/guerrilla
fighters can never be completely eliminated, but their numbers
are slowly being reduced using remotely guided drones, and foot
soldiers.

[mbperrin]

115. Oh, so Hitler was too stupid to fight the superior guerrilla war, then.

Umm, so why aren't we using these superior tactics?

Actually, you never need to eliminate the other side's army. You just need to get them to surrender. For instance, there are many vets who fought for both Germany and Japan still alive, yet those countries lost the war.

Try: "Never-ending wars enrich the right people and kill unimportant people, including the ones on 'our' side." No war, no profit. I believe that will cover it all.

[golfguru]

116. Thank you for a good laugh /

[mbperrin]

122. Oh, no, thank YOU.

Pity you had no actual answer. See you around, new guy.

[mcollins]

146. You are thinking war against a 'state'

where the object is to destroy and control that 'state'. You can fight and defeat an enemy's armies in the field or you can occupy his territory. That is a conventional war, which is what Hitler fought. When he invaded the Soviet Union in 1941 he destroyed the Soviet Armies and occupied huge amounts of land. He thought the Soviets would sue for peace or surrender, which is why he tried to take Moscow. Take the enemy's capitol and they are finished.
However, the Soviets didn't surrender or sue for peace, the raised new armies and continued to fight.
(In 1812 Napoleon took Moscow, but the people left it and so there was no victory. They had changed the rules, so to speak)
In 1945 after the fall of Berlin there were groups of fighters that continued the struggle, but since Hitler had committed suicide there really wasn't a will to contiue the fight.

There is no need to eliminate the other side's army if you break their will to fight. It's hard to break a person's will to fight if they believe that by fighting they gain ever lasting life in heaven.

[golfguru]

151. For openers, Yes, Hitler was stupid

Hitler's scientists had the lead on development of a nuclear bomb.
But Hitler was too stupid to visualize the power of that weapon and
he nixed funds for the project.

Now to explain you Guerrilla wars...those are resorted to by underground
resistance who do not have the weapons to fight the enemy. Hitler had plenty
of weapons. The tanks based Panzer division was superior to other countries.
Hitler had German industry tuned to producing military hardware. His armies
blitzed through neighboring countries like a hot knife through butter. Hitler
felt invincible.

Guerrilla fighting was used by Viet-Cong against the might US military, by
Afghan fighters against Soviets, by Indians fighting to liberate India from
the British, Mau-Mau in Kenya etc. It is always a rag-tag army of people
who have limited arms and money.

[mbperrin]

153. Yes, and those ragtags always win, including our own Revolution

against the most powerful empire in the world.

Who's stupid? People who won't remember their own history, or people who use the winning methods from history?

[golfguru]

You are so naive...you think Hitler could have been defeated by Guerrilla's?

Then I have a slightly damaged bridge in Minnesota I can sell you real cheap.

[golfguru]

154. You are so naive...you think Hitler could have been defeated by Guerrilla's?

Then I have a slightly damaged bridge in Minnesota I can sell you real cheap.

[mbperrin]

155. You know nothing of the resistance movements in various

countries which gave invaluable aid to the allies?

Sounds like someone is a bit misinformed or uninformed.

I'll leave the good citizens of Minnesota to think about their lack of ability to build study bridges.

[golfguru]

156. Nothing persona and I like you because

you are not profane, not hot tempered, and not rude.

[golfguru]

157. Nothing personal and I like you because

you are not profane, not hot tempered, and not rude.
We can disagree on issues in a civil manner, as you have.

[ClarkUSA]

80. Pres. Obama, Sec. of Defense Gates and General Petraeus all disagree with you.

So do I and many military families I know who have loved ones in the Middle East.

[Bragi]

96. It was all about communications

Thanks for the patriotic speech, but I think I know why the admin used the "protect our troops" meme.

They habitually think it's clever to use the "other side's" issue framing -- as in "support the troops" -- because they think it gives them a slam dunk, air tight argument no opponent can assail.

I think it's a long term mistake. They should use issue framing that properly makes their case, not the other guys.

At any rate, if the Muslim world were to rise in great anger over any perceived religious insult, concerns about troops being in any additional jeopardy are not the main worry for the President. It's the safety and protection of American soft targets that is truly worrisome.

[golfguru]

152. Bragi...your post wins the award of ...

most brilliant post on this thread.

[Bragi]

69. I disagree completely

If someone threatens to or engages in harm or murder because they feel offended by the content of the lawful free speech of another person, then I the fault clearly lies with the person threatening or engaging in murder, not the person engaging in lawful free speech.

[mjane]

86. Actually no

That's not what the legal standard says...

[Bragi]

99. Free speech is not so easily disposed of /nt

[golfguru]

111. Ahhhhh so you believe in "selective" free speech only /

[BBG]

105. Ditto

Card carrying member here and also supportive. The most despised speech is the most in need of protection.

[24601]

84. So free speech is only for those who think and look like you?

Chilling thought.

[Historic NY]

10. 53% in the accompanying poll agree with his firing.

[kirby]

42. Our constitutional rights are not subjects to the whims of the polls n/t

[Chan790]

102. A wise college poli. sci. prof. of mine...

told us that if you put 500 random people in a room together and poll them constantly on a variety of topics, eventually you'll find some topic that more than half of them are complete idiots on. If you let the people choose themselves where you set the topic, the likelihood you'll discover idiots is equally certain.

Self-selecting polls are the perfect example of that in action.

[frylock]

11. who wants an arsonist working for their organization?

not me.

[mudderfudder77]

12. Not Sure if Serious

He shouldn't have been fired, just as someone who exercises their right to burn the flag in protest of the war should be protected from unlawful termination.

[Dogtown]

15. Protected by whom?

And, how is this an unlawful termination?

[LanternWaste]

19. As per the article, he violated the company's code of ethics...

As per the article, he violated the company's code of ethics...

"Mr. Fenton's public actions violated New Jersey Transit's code of ethics," an agency statement said. NJ Transit concluded that Mr. Fenton violated his trust as a state employee and therefore was dismissed."




I signed a contract with my company, and in signing that document, I directly implied that I would refrain from doing or saying those things which would reflect badly upon my company. I imagine it really comes down to his company's code of ethics, policies and protocols, and his signature on those contracts.

He was and is still free from government interference to engage in first amendment activities as are most of us. However the first amendment certainly doesn't protect us from cultural mores and the social consequences of our actions.

[jayfish]

24. And if your contract stipulated that voting democratic reflected badly upon the company? -NT-

[Akoto]

27. Knowing that it conflicted with my beliefs, I'd not have signed. n/t

[mjane]

89. How do you know what it conflicted with

to my knowledge, nobody has posted or linked to the actual code of ethics.

Regardless, as a public employee, any code of ethics that violates rights is prima facie invalid.

Similarly, if you sign a rental contract that says "no blacks are allowed in your apartment", and you have a black guest and he tries to evict you for that will that hold up?

no.

Does the fact that you signed that contract make any difference?

no

[Akoto]

137. I was responding to the poster's hypothetical question.

Having said that, I never sign anything without first reading it, contracts included. Nobody can force me to put my signature to paper. If I don't agree with the terms laid out, I don't sign.

[LanternWaste]

29. I would not have signed and would not be working here.

I would not have signed and would not be working here. And I imagine there would have been consequences to that decision also. :shrug:

[jayfish]

33. So the choice is free exercise of your rights or destitution?

I don't think that's what the Framers had in mind.

[druidity33]

62. um... voting is secret in this country. nt.

[jayfish]

67. Ok, I'll give you that. How about...

donating to a Democratic candidate?

[Xithras]

36. The "company" in this case, is a government agency.

Government agencies have to play by a different rulebook than private employers, and one of those differences is their requirement to abide by the Constitution.

What we have, here, is a government agency sanctioning a private citizen for participating in a constitutionally protected activity outside of his work hours and while wearing no uniform or marks to identify his affiliation with that government agency.

I predict a healthy settlement in his future. If he has any brains, he'll decline any offers to take his old job back (citing potentially "hostile" work conditions), and demand a substantial payout. He'll get it too.

[Hosnon]

60. +1 nt.

[mjane]

88. Any contract signed by a public employee

that interferes with their rights is on its face invalid.

If a fire department had a code of ethics that said "You are prohibited from speaking positively of Democratic candidates in your off duty time" would a firefighter who signed that code of ethics be subject to termination for doing so?

The answer is no.

[jeff47]

128. Your company doesn't have to comply with the first amendment

So they can restrict your speech all they'd like. Just like they don't have comply with the 4th amendment before searching your computer, work area, or personal belongings.

NJ Transit is a government entity. The rules are different.

[stlsaxman]

94. His action was NOT similar to burning a flag... more like burning a cross- it was/is hate speech. n/

[jeff47]

124. Hate speech is still free speech. (nt)

[SOS]

140. In Chaplinsky v. New Hampshire (1942)

The Supreme Court held that words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace" are not protected.
Later, with flag burning as an issue in Street v. New York (1969) the court found the NY law against flag-burning unconstitutional because "offensiveness does not qualify as "fighting words"".

So the question arises, was the NJT worker offensively expressing himself or will his actions lead to injury?
With 150,000 Americans in Afghanistan that question becomes quite complex.

[Bragi]

71. He was not charged with arson (or anything else) /nt

[mjane]

87. What utter crap

It's not arson

That's a complete misrepresentation.

If you buy your own flag, and burn it as political protest is that "arson?"

Nobody, and that includes legal experts, thinks so.

Arson is when you burn other people's property, or your own for the purposes of insurance fraud, etc.

Are you ready to call war protesters who burn the flag arsonists?

Was Rachel Corrie an arsonist?

[frylock]

91. i haven't seen any war protesters burning the flag..

feel free to post links of war protesters burning flags kplzthx.

what did Rachel Corrie burn?

i once had a friend cited for arson for lighting a bag of dog poo.

this dumbfuck pub whore can burn all the qurans he wants for all i care. his and your beef is with the NJT. peace out.

[mjane]

93. Rachel Corrie burned a US flag

and had every right to do so.

She was not an arsonist. Numerous people have burned the US flag in all sorts of protests. That's why laws were passed prohibiting it, and why those laws were correctly overturned.

But nobody ever charged them with ARSON for burning their own flag.

The problem is that arson has a specific definition. Calling that person an arsonist was wrong, as a matter of legal definition.

He is no more an arsonist, than somebody who burns their own leaves in their backyard.

[frylock]

100. you're right..

he's not an arsonist. i mispoke when i called him one. he's just a stupid, scared little man.

[mjane]

101. That I can agree with

Arsonists are insidious. We had an arsonist light a man's house on fire and paint a swastika. That was arson, and a hate crime enhancement.

Burning a flag or quran is just nasty behavior. It isn't arson.

[Rage for Order]

108. LOL...as requested, war protestors burning flags right here...

"People of Iraq are under attack. What do we do? Stand up, fight back!"

http://www.youtube.com/watch?v=fGZswrhzCPc&feature=related

I could probably find a video of someone lighting a bag of dog poo on fire as well, if need be.

[jmm]

13. People get fired for facebook posts, smoking outside of work, etc all the time.

I may not agree with some of the reasons people are fired for behavior outside of work but as long as that's legal then firing this man should be too.

[jayfish]

20. Yup, and the type of people who would burn a Koran have no problem with the despicable practice;...

thereby becoming enablers of it. I have no problem letting them reap what they sow. It will be fun to watch the about faces and listen to the whining and gnashing of teeth.

[Nihil]

35. Good catch. (n/t)

[Hosnon]

58. Totally different ball game when the government is doing the firing. nt.

[jmm]

92. The government has a history of firing people for their behavior off of the job. (n/t)

[jeff47]

125. The key difference

...is those 'other people' were working for a private company. Private companies do not have to comply with the first amendment. Just like they don't have to comply with the 4th amendment before searching your computer/work area.

NJ Transit is a government agency, so they do have to comply with the first amendment.

[jmm]

134. Not all those "other people" worked for private companies

This woman worked for a public school-

http://www.associatedcontent.com/article/1659432/cheerleading_coach_carlie_beck_fired.html

These officers were fired over Facebook posts-

http://www.policeone.com/police-technology/articles/1776582-Two-Wash-officers-fired-over-Facebook-indiscretions/

There have been plenty of stories in the news of people who don't work in the private sector being fired for their behavior outside of the job. The whole Shrirley Sherrod forced resignation controversy happened after comments she made outside of the job. My grandfather worked as a civilian for the air force for over 30 years and he once told me the only civil service employee he ever fired was for their behavior outside of the job.

[jayfish]

135. Those two examples would make good court tests.

IMO, the teacher has a better case than the cadet.

[jeff47]

148. There's some problems with your examples

In the first case, it doesn't look like she actually worked for the school. To quote the article:

"Carlie Beck paid a stipend to be able to become a cheerleaders coach."

One doesn't pay a stipend to one's employer...so the whole arrangement looks kinda odd, making it difficult to figure out if this is really an 'employment' case...at least from the few details in the article.

Your second example covers one of the ways you can legally get fired on "speech"-style grounds from the government. The police claimed that the officers in question made their offensive posts as policemen. Meaning they were speaking under the color of authority of their position: They were "speaking" as a representative of the government, instead of as a private individual.

"The whole Shrirley Sherrod forced resignation controversy happened after comments she made outside of the job."

Her resignation was forced because she wasn't speaking as "Shirley Sherrod". She was speaking as "Shirley Sherrod, USDA official". Again, speaking under the authority of her government position. Incidentally, the use of her USDA position meant it wasn't "outside the job".

What is different about this case is the book-burning idiot didn't wear his uniform, and didn't do anything to indicate he was doing it as an agent of the government. If he had announced "This is what NJ Transit thinks of the Koran!!", then sure, fire his ass. But in this case, there was no direct connection between the act and his employment.

[prolesunited]

18. Depends on what is written in his employment contract

or in the employee manual. Some employers have specific language addressing what can be done or not done outside of work. If you are in an at-will state and don't have a contract or union protecting you, you have no rights. They can fire you if they don't like your hair color.

Since he's technically a government worker, it's even trickier.
Here's some case law on that subject.
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/publicemployees.htm

Everyone's right to free speech is protected by the Constitution. What is NOT protected is the consequences of practicing their right of free speech. Think about the whole Dr. Laura debacle. Contrary to her claims, her free speech rights were not violated. However, she doesn't have a right to a microphone to broadcast her racist language.

[jayfish]

23. You Cannot Give Up Your Constitutional Rights Via Contract Negotiation.

In addition, "Dr." Laura's infraction took place in the course of her employ.

[HiFructosePronSyrup]

25. Constitutional rights were never infringed.

This dipshit still has the right to burn as many of his Korans as he wants.

[jayfish]

31. No, if there is a penalty directly associated with exorcising your right, it's...

not much of a right is it?

[HiFructosePronSyrup]

34. If I call you a fucking troll and Skinner deletes my post...

have my free speech rights been infringed?

[jayfish]

39. Really, Your Going To Go There With Me? Over A Genuine Discussion?

Wow!

[HiFructosePronSyrup]

41. It's a hypothetical question.

Why are you dodging it?

[jayfish]

44. No They Have Not.

Not dodging. Just wanted to make sure it was a serious question.

[HiFructosePronSyrup]

45. Well then there you go.

[jayfish]

46. If you can't see the difference between non-political speech...

on a private message board and political speech in a public place, I can't help you. And that's just one thing thats wrong with your hypothetical comparison.

[HiFructosePronSyrup]

48. It's not my fault you've contradicted yourself, or that you don't understand the first amendment.

The constitution does not give a person the right to be employed by the NJ Transit Authority, nor the right to post anything and everything on DU.

[jayfish]

51. Who Doesn't Understand The First Amendment?

I haven't contradicted anything. Your hypothetical isn't even in the same ballpark as this case. You are right about one thing though; the Constitution does not give a person the right to be employed by the NJ Transit Authority. It also doesn't give the NJTA the right to retaliate against the exercise of protected speech.

[Chan790]

104. Save your energy, Jayfish.

HFPS has consistently proven that he has the intellect and maturity of a 2 year old. Even if you proved him wrong, he'll never admit it.

[boppers]

120. You think DU is private?

Care to define that?

[jayfish]

123. I don't think it's private. It is a privately owned and operated site. -NT-

[RantinRavin]

54. compare apples to apples

If this message board was being run by a governmental agency and your post was deleted, then yes, your rights would have been infringed.

[Chan790]

103. No, but...

if you call him a "fucking troll" and Skinner tells your boss who subsequently fires you for reflecting "poorly on the company" you might legitimately have a case.

He's right, an employer under federal law cannot compel you to abridge your civil rights, nor can they act punitively towards you for the application or demonstration of your rights on your own time and without the benefit or resources of your employment.

NJ Transit's going to end up having to rehire this guy. They literally legally have no leg to stand on if this goes before a NLRB review board or a federal judge...the judge might rule in their favor but that's going to be one hell of a "Gumby" ruling.

[jeff47]

126. No, because DU is not the government

Free speech doesn't apply to private entities, such as DU.

In this case, a government entity punished a man for his speech. Vile speech, to be sure. But still speech.

[kirby]

43. He was fired by the GOVERNMENT..rights infringed n/t

[HiFructosePronSyrup]

49. Is he facing criminal charges? Is he prevented from burning Korans?

No rights infringed.

[kirby]

56. You don't get it...

If you cannot equate 'retaliation' due to the exercise of a right with the infringement of a right, I cannot help you.

[HiFructosePronSyrup]

74. I get what you're saying, kirby. You're just ridiculously wrong.

Even government jobs have standards, kirby.

Sometimes rather high standards.

[jayfish]

76. "Fenton was an assistant train-consist coordinator, sources said - a job that entails ensuring..."

there are enough train cars positioned to be put into service."

Does that sound like one of those jobs?

[HiFructosePronSyrup]

77. Yes.

He clearly shows poor judgment, he creates a hostile work environment for fellow employees, and performs conduct unbecoming of a professional.

Fucker isn't fit to hold any job that requires any responsibility or rational thought.

Would you hire a guy who burns crosses?

[jayfish]

78. You're missing it again.

Or, you are trying to set a trap that I'm not going to fall into. He was already hired and employed. It's ok to to change your mind on this you know?

[HiFructosePronSyrup]

79. Would you not fire somebody for burning a cross?

You're dodging again.

[jayfish]

95. I Haven't Dodged Anything.

Why do you feel the need to be accusatory at every available opportunity? It depends on the context. Burning in a religious or anti-religious context would be considered protected speech. Burning as a form of intimidation/hate would not.

[joeglow3]

132. It is not a matter of what I would like done

The government does not have the right to.

[Hosnon]

61. Our rights wouldn't mean squat if the government could punish the exercise thereof. nt.

[NutmegYankee]

82. They were indeed infringed.

Both state and federal constitutions protect you from government punishment of legal expression (not threats and so on). This man was fired by the state government for legal expression not performed while on duty.

The government therefore has punished the man for his expression. He might be an asshole, but his firing was still flat out unconstitutional.

[HiFructosePronSyrup]

107. Horseshit.

He violated his code of ethics. He wasn't punished by the government, he was fired by his employer. The fact that the employer was a government institution hasn't got anything to do with it.

[jeff47]

129. Your post is 100% wrong.

The fact that the employer was a government institution has everything to do with it.

The first amendment doesn't apply to private entities, such as a company. They can fire you for saying anything.

The first amendment does apply to NJ Transit, because it's a government entity.

The only cases where someone has been fired for "speech" from a government entity is when you get into areas like insubordination or claiming to speak for the entity w/o authorization. This incident was off-duty, and clearly not related to his job.

[joeglow3]

133. HOLY FUCKING SHIT...

PLEASE do not EVER speak on behalf of our party in public. Your ignorance knows no bounds.

[HiFructosePronSyrup]

136. lol

Your righteous indignation would be less amusing if you weren't completely wrong.

[msanthrope]

138. I think a lot of posters here seem to think that the State must suffer all lunatics simply because

they employ them...

they do not.

He fails the Rankin test. Supporters of this dickwad ought to read both Rankin, and Guiliani v. Pappas, Sotomayor's dissent notwithstanding....

[Name removed]

141. Deleted message

Message removed by moderator. Click here to review the message board rules.

[msanthrope]

143. It's an interesting contrast you note...I wonder how many here support the Birther Lt. Col. Lakin

who is facing court-martial over what he claims are his first amendment rights to question the President's authority.

[HiFructosePronSyrup]

144. I do seem to remember Keith Olbermann arguing that Lakin never had a case.

Despite his support for this Koran burner keeping his job.

[msanthrope]

145. I've asked a few legal eagles on this thread how this firing squares with Rankin v. McPherson and

progeny...

I'm wondering if I get any results after they google it up.


Keith is great on many things--legal analysis, he is not.

I simply don't think this guy gets the benefit of the doubt of the Rankin test...

[jayfish]

149. It's interesting but it's also apples and oranges.

The POTUS is the supreme commander of the US military. Therefore Lakin's act directly interfered with the efficient and orderly operation of military business. The Koran burners act has no association with his employment what-so-ever. As far as Rankin goes; I think it's even more open and shut than that case. At least McPherson was on the job when she made the comments that got her canned.

[joeglow3]

147. Who gets to decide???

Can a government entity fire someone for showing up at a pro-abortion rally because a nutjob could bomb them like they do clinics???

[prolesunited]

32. Agreed

You do not give up your Constitutional rights.

What is not a "right" is the privilege of remaining employed. It's better explained in the link provided.

Rights are protected, your job isn't.

[jayfish]

40. See #38 -NT-

[Kristin av Havn]

55. You yanks are surely proving that..

:/

[Hosnon]

64. When it comes to the Constitution, property rights are defined by state law.

In other words, if NJ state law states that he has a property interest in his employment, he has a protected interest that cannot be infringed.

[Xithras]

37. You can't sign away ANY legally protected rights in a contract negotiation.

If you are desperate for employment, I might offer you a contract requiring you to work 16 hours a day without overtime, at a rate equal to half of the current minimum wage.

When you eventually quit, you will be able to sue me for the unpaid half of your minimum wage, and for the unpaid 8 hours of daily overtime. And you will win, even though I have a contract showing that you agreed to it.

Why? Because you can't sign away legal protections in an employment contract.

[closeupready]

70. Thank you for stating that so clearly. So many people don't get that.

I don't know why. :hi:

[jayfish]

72. Conditioning. -NT-

[Mz Pip]

59. Dr. Laura quit

She wasn't fired. She just couldn't take the criticism of her as is guarranteed in the First Amendment.

[jayfish]

38. All of the decisions, restricting speech, discussed on that page...

have a direct link between the act in question and the actors employment.

Pickering v Board of Education: fired for writing a letter to a newspaper critical of the local school board.

Mt. Healthy v Doyle:also involved a fired school teacher. Doyle lost his job after calling a radio station disc jockey to complain about a memo sent to school teachers concerning a new teacher dress code.

Connick (1983): speech about the internal operation of a district attorney's office is generally not of "public concern." Moreover, the Court held, distribution of a questionaire by the discharged employee raising questions about management of the office

Garcetti v Ceballos: the Court considered the First Amendment claim brought by a deputy district attorney in the Los Angeles DA's office who had been transferred and denied a promotion because of his statements to supervisors criticizing the credibility of statements made in an affidavit prepared by a deputy sheriff.

I don't see such a link here.

[Stuckinthebush]

21. He should get his job back

He is a scum bag with scum bag views, but I support his scum bag actions.

Scum bag.

[Dappleganger]

26. They're only protecting themselves.

Free speech can have dire consequences. A terrorist could specifically target a person's place of employment because of what they said/did.

[totodeinhere]

50. So we are going to go around in fear of terrorists, giving up our constitutional rights?

Isn't that the same thing as what the Patriot Act has done? And it was roundly criticized at DU, and rightly so. So let's be consistent and also condemn this abridgment of rights based upon a fear of terrorism just like the Patriot Act is.

[HiFructosePronSyrup]

28. What is the world coming to...

when a person can get fired simply for doing things and saying things and being dangerously incompetent?

[truthisfreedom]

47. Transit. Think about it. Terror target. Employee. The guy is a walking liability.

They had no choice but to fire him.

[ProgressiveEconomist]

63. Agreed--this is what makes what he did job-related. But is there precedent or

specific language in his employment contract that justifies his firing from a legal standpoint?

[Love Bug]

65. The only reason we know where he worked is because of the arrest

Had he not been fired, he would have just been some anonymous idiot Tea-partier burning the Koran. If terrorists make a connection with the NJ Transit, it's only because of the publicity.

[ProgressiveEconomist]

117. Isn't publicity inevitable when you burn the holy book of the world's largest religion?

in front of international TV cameras? Al Jazeera must be rebroadcasting Fenton's performance every hour.

Imagine Fenton's continuing to walk the lengths of NJ Transit trains, punching tickets and taking fares. Inevitably, some Muslim passengers would recognize him and become enraged. A violent confrntation easily might ensue in a closed space from which no one immediately can escape.

Aa I understand it, Fenton has violated the terms of the ethics clause in his employment contract.

IMO, NJ Transit has a legitimate interest in not unnecessarily provoking potentially violent outbursts on its often-packed trains. Fenton in an NJ Transit uniform now is a safety hazard, and he must go.

[jeff47]

127. Free speech is hard

It's rather depressing to see so many happily tossing it away because this guy did something icky.

[SoapBox]

52. LOLOLOLOL! Looks like there is a "price" for being "crazy"!

Hilarious!

Oh...and my employer?

The will fire you (or other stuff) for ANYTHING you do, that "reflects" badly on the company.

24/7/52/365...and no body has ever been successful in a lawsuit.

[jayfish]

53. What's the definition of "reflects badly on the company"?

[Hosnon]

57. Not only do I not agree with the decision to fire him, he might have a valid

claim for violation of his constitutional rights.

[Turborama]

73. NY Daily News gives out vital info for reprisals: Derek Fenton, 39, of Bloomingdale, N.J

[NutmegYankee]

81. I cannot agree with this.

His act off the clock has no bearing on his job. I disagree with his expression, but he has the right to be free from government punishment for it.

[maxsolomon]

90. He could be burned alive on Al Jazeera

and it wouldn't placate muslim protestors in Af-Pak. people are dying over this BS.

[Turborama]

114. Do you still believe Rumsfeld's meme that Al Jazeera is a "terrorist news organization"?

Hopefully reading http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=389&topic_id=6848728">this will fix that problem.

This is worth checking out too: http://www.iwantaje.net/hm">

And BTW that statement "and it wouldn't placate muslim protestors in Af-Pak" is full of bigoted/stereotypical FAIL.

PS People are protesting. And being shot dead. For protesting.

[maxsolomon]

150. I used Al Jazeera because i assume they are more likely to see that channel

than MSNBC. was that incorrect? i have no predjudice against Al Jazeera, and i resent the implication that i agree with anything Rumsfeldian.

i know who's shooting the protestors in Kashmir - panicked and frightened Indian troops. i also know that they're protesting, and being shot to death, over something THAT DIDN'T HAPPEN. oddly, there seems to be some misinformation about America loose in that region of the world. which seems strange considering how sober and responsible the Pakistani media are, not to mention how scrupulous the religious leaders of the region are about facts.

so, is my error in assuming that koran desecration protestors are

a. muslim?
or
b. implacable?
or
c. not in Af-Pak?

[proteus_lives]

113. Pretty sad how many here are willing to throw out the Constitutional Rights out with the teabagger.

[ProudDad]

118. This just shows that if you're an employee

you're just a fucking slave...

That's the way the capitalist deck is stacked, folks.

[ProudDad]

119. Not a free speech issue

He can burn all the Qur'an he wishes...

He just needs to select his next employer more carefully...

[jeff47]

130. 'fraid not

He selected a government employer, which means he selected an employer that has to comply with the first amendment.

If he was employed in the private sector, his firing would be perfectly legal. The first amendment only restricts the government, not private companies.

[msanthrope]

139. Actually, that's a bit facile....

his employer must comply with the Rankin test, generally.

How does this case apply?

[robertpaulsen]

121. Tonight, Keith Olbermann named NJ Transit Worst Person in the World. n/t