Different opinions on Derek Fenton’s firing by New Jersey Transit

(Note: Dean E. argues below that a public employee cannot be allowed to burn a Koran.)

Daniel H. writes:

Here is Gov. Christopher Christie’s phone number: 609-292-6000. You may wish to add it to the page, listing people to call in support of Derek Fenton. Dialing the number, I was actually able to reach a seemingly intelligent person at the other end—not a dimwit, as at NJ Transit. I explained the situation. She didn’t recognize Derek Fenton. I explained the situation. She said she would pass the information on. If enough people call in to Gov. Christie’s office, by tomorrow the governor will certainly know who Derek Fenton is and maybe he can get his job back.

Dean E. writes:

So I blew a gasket and shot off a fast email to NJ Transit, outraged, etc. And then I came across this comment following the NY Daily news story:

“I do think there’s a double standard with the outrage of “Koran burnings” and the disinterest in attacking Christian symbols (Dung Mary, **** Christ, etc.) That being said, the 1st Amendment offers citizens protection with freedom of speech, but it doesn’t grant them full immunity for any action. He isn’t be charged with a crime, and that’s where the 1st Amendment protects him. The guy’s a public employee (as am I) and should be mindful of his actions in a case like this. Working for NJ transit, he likely deals with hundreds or thousands of Muslims per day/year, and this can only serve to hurt the perception that he’d do it impartially. If it was a Muslim burning the Bible in this situation (or any employee burning any religious text), the Muslim should be fired too. IF you’re in the public sector, you need to be mindful that you serve all citizens, so your actions, even while not working, can cost you your job and the 1st Amendment doesn’t protect you.”

And his comment made sense to me. A private employer may reasonably require that its employees not engage in activities that may adversely affect its customer relations, and I don’t see how NJ Transit being a publicly-owned company changes that. If Mr. Fenton had simply attended the anti-mosque rally and not drawn undue attention to himself he never would have been fired. But his actions and public notoriety may reasonably be seen as inserting a charged political element into his employer’s work environment that could adversely effect both customer and employee relations. That Koran burnings are widely seen as more provocative than bible or flag desecration is not NJ Transit’s doing (even though we may surmise their liberal ruling class sympathies). When we go to war against the liberal juggernaut we should not expect invincibility. We must know there will be a price to pay. We should be willing to pay that price. That’s what a soldier does. There’s going to be more of this happening as the divisions deepen and each of us is forced to take sides. I trust Mr. Fenton will be able to parlay his calm courage (and notoriety) into a new job by a more patriotic employer than NJ PC Transit.

Dean E. continues:

What if NJ Transit considered this: that employing a notorious Koran burner would expose NJ Transit to terrorist attack? What if that’s a big part of what motivated the firing? It’s a reasonable concern. Think of all the Muslims in New Jersey. Think of all the exposed railroad track, all the exposed stations and passenger trains. We may have assumed NJ Transit was eager to wreak vengeance on their right-wing enemies with the firing, and there may be some element of that. But the bottom-line safety and profitability issue is significant. If even threats were made against NJ Transit by jihadist groups NJ Transit would have to take expensive security measures to counter that specific threat, even if it was not carried out. And if it was carried out the damage in both blood and money lost could be enormous.

“Allah’s Apostle said, ‘I have been made victorious through terror!’”

Richard P. writes:

The interesting thing about the Derek Fenton case and his firing is that he may have a cause of action because he was employed by the government. Almost any private corporation in America would have also fired him, and he would have had little recourse. This is the problem with the mindless pro-corporate position of libertarians and most conservatives. Corporations are the chief enforcers of PC for most adults in this country. The First Amendment is meaningless when you can be fired for any speech that fails to bow before the liberal idols.

The primary tactic used to suppress dissent in the post-Stalin Eastern Bloc was not the gulag, but job loss. Failing to tow the party line would lead to unemployment first. Lech Walesa was repeatedly fired for his activities with Solidarity. It is hard to read the writings of 1970’s dissidents like Havel without seeing many parallels to our current situation.

Richard P. writes:

Dean E. takes a two-pronged approach to justify the firing of Fenton. First, his Koran burning is bad public relations as it would upset the Muslim passengers who use NJ Transit. Second, they are justified in firing him on security grounds because his actions expose NJ Transit to increased risk of terrorist violence. The logical inference to draw from this is that any public speech that can be found offensive by an identifiable group or by people that can threaten organized violence can be suppressed. Such speech will likely result in a loss of employment and make finding further employment difficult at best.

Yesterday morning, Justice Stephen Breyer implied in an interview that Koran burning may fall under the same incitement restrictions as actions like shouting fire in a crowded theater. He said globalization may force us to change our understanding of the First Amendment.

There’s really no need. For the overwhelming majority of Americans, the First Amendment might as well not exist. It apparently offers only protection from the worst government outrages but not from all sorts of other assorted thuggery.

Paul Nachman writes:

I don’t think Dean E’s reasoning on the Fenton firing is supportable. I think it’s equivalent to simply forbidding public employees from engaging in any political activity on their own time because they might be recognized and their participation might then be trumpeted by others (with or without axes to grind) and so on.

It would be different if, in burning the Koran, Fenton announced to the world, “I’m Derek Fenton, an employee of the New Jersey Transit System, and I’ll be burning this Koran.”

And regarding what Richard P. wrote about Justice Breyer, please look at this brief, disquieting Corner blog about the “heckler’s veto” by Nina Shea.

September 16

Anita K. writes:

Re the comment about rethinking blasting the N.J. employer for firing a Koran-burner because it would leave the business open to attack by Muslims:

This comes down again to having to live one’s life always in fear of what murderous idiots might do…. it’s not a joyful prospect.

Dhimmitude through fear. Why should we have to monitor our lives in this way? It would be good to have the Muslims stay in their own countries, indeed.

LA replies:

While I don’t have a definite position on this yet, I thought Dean was making a reasonable argument, worthy of further discussion.

Let’s say someone working for New Jersey Transit had publicly burned a Torah. Would NJT have grounds for saying that this was not appropriate behavior for an employee of a state entity serving the public?

Here’s the problem. Burning a Koran is not simply like any other expression. It is specifically attacking a religion. That’s unusual. Now, as I’ve written at length over the last week, I support the burning of the Koran, but under certain conditions. One condition I’ve suggested so far is that the burning be done in a dignified way, not a gratuitously insulting way, i.e., doing the burning with pork fat. But Dean’s argument gives rise to another possible condition. Given that burning a Koran is an unusual act, not just any old expressive act, and that it is specifically an attack on a religion, a reasonable case can be made that it should not be done by a government employee whose job is to serve the public.

Sophia A. replies:

Well, I don’t think that’s likely to happen, do you? The Torah, I mean. Anyway not likely to turn to murder.

But as well, wasn’t the man doing the deed on his own time, and not on company property either? [LA replies: Yes, but that’s not responsive to the argument.]

I think ‘the Baron’ on Gates of Vienna makes a good point that agrees with me in a way…. over here too now (and I mean both the US _and Canada where I am), we start having to watch what we say or do. Not good! [LA replies: this also is not responsive to Dean’s (and my) specific argument.]

Posted by Lawrence Auster at September 15, 2010 02:35 PM | Send