ACLU To Sue NJ Transit For Firing Off-Duty Employee Who Burned Koran

The New Jersey chapter of the ACLU will be suing NJ Transit on behalf of Derek Fenton who they believe was improperly fired from the transit agency. Fenton had burned a Koran on the 9th anniversary of the 9/11 attacks in the course of demonstrations against the proposed Cordoba House/Park51 project and was thereafter fired by NJ Transit.

Now the American Civil Liberties Union says Fenton should get his job back. The group will file a lawsuit Friday in U.S. District Court saying Fenton was unconstitutionally fired for exercising his free speech rights.

"If you allow governments to censor one kind of speech, you open the door to censorship of all kinds of speech," said Deborah Jacobs, executive director of the ACLU in New Jersey. "Our individual right to free speech depends on everybody having it."

A spokeswoman for NJ Transit declined to comment today. When Fenton was fired, the agency released a statement saying it had "concluded that Mr. Fenton violated his trust as a state employee and therefore was dismissed."

Two months ago Fenton waded into a roiling international debate over free speech, religious freedom and Islam’s place in America. Terry Jones, a fringe pastor from Florida, had already announced plans to burn the Koran on Sept. 11. Fueled by round-the-clock media coverage, it quickly became one of the world’s most inflammatory topics. Gen. David Petraeus, the top American commander in Afghanistan, said the action could endanger U.S. soldiers, and Defense Secretary Robert Gates called Jones personally to ask him to cancel his plans.

Jones eventually decided not to burn the Koran.

Fenton did what Jones was persuaded not to do. And as I wrote when the incident broke, NJ Transit violated Fenton's free speech rights. Fenton's speech may have been hateful and disrespectful, but that is within his rights under the First Amendment.

Fenton had every right to voice his opinion in that setting. This isn't an instance of an employee carrying out such conduct while in his capacity as an employee or public official. He was off-duty at the time, and NJ Transit determined that dismissal was the preferred option, rather than probation or other disciplinary measures or undertaking sensitivity training or other such programs. I would say that the ACLU has a very good chance of winning this suit on Fenton's behalf.