Legal Commentary

New Jersey Public Transit Employee Fired for Blasphemy

By Eugene Volokh

The New York Daily News reports:

[Derek Fenton, t]he protester who burned pages from the Koran outside a planned mosque near Ground Zero has been fired from NJTransit, sources and authorities said Tuesday....

?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 [he] was dismissed.? ...

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....

If Fenton was fired for burning the Koran while off-duty, his First Amendment rights probably were violated, Chris Dunn of the New York Civil Liberties Union said....

The relevant First Amendment test for when the government may fire an employee for off-duty expression on a matter of public concern (such as the expression here) is unfortunately quite vague: 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.

If you can point me to the relevant part of ?New Jersey Transit?s code of ethics,? I?d love to see it; a quick search through the NJ Transit site didn?t uncover this document. Thanks to Jeff Heldman for the pointer.

Full post as published by The Volokh Conspiracy on September 15, 2010 (boomark / email).