NJ Transit Worker Gets Job Back After Burning Koran During Protest

As I noted last November, I thought that Derek Fenton had a great chance of winning back his job because he was exercising his First Amendment rights for free speech to protest against the construction of the Cordoba House/Park 51 community center and mosque near Ground Zero. New Jersey Transit fired Fenton and the New Jersey chapter of the ACLU took up his cause. Gov. Chris Christie had supported the firing because of the intolerance that Fenton showed in his actions.

Today, a settlement between Fenton and NJ Transit means that Fenton will be reassigned to his $86,110-a-year job as a conductor and as an assistant train-consist coordinator. He will also get $25,000 for pain and suffering, as well as back pay equal to $331.20 for every day since his firing.

Note that Fenton was fired for actions carried out while he was off-duty and not in uniform. The outcome of the case would have been quite different had he been on duty when he burned the koran or had been wearing a NJ Transit uniform when burning the koran.

The First Amendment protects political speech no matter how distasteful and hateful. Fenton's speech was protected, and NJ Transit had overstepped its bounds and authority in firing Fenton for speech undertaken outside his employment.

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.

NJ Transit Went Too Far In Firing Employee Who Burned Koran

It's an emotionally charged issue, but emotion has nothing to do with the clear boundaries of the law. A person has the right to free speech and the conduct of burning a Koran falls within the protections of the First Amendment.

It may be hateful speech and stupid speech, but it is protected speech nonetheless.

That's why NJ Transit's decision to fire an employee who attended a demonstration against the Cordoba House proposal in Lower Manhattan and burned a copy of the Koran on his own time is likely to get the agency in trouble.

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.

NJ Transit said Fenton was fired but wouldn't give specifics.

"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 ushered from the protests by police on Saturday and questioned, but he was released without charges.

The employee, Derek Fenton, has 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.

It looks like NJ Transit stepped over the line in pursuing actions against Fenton for speech Fenton undertook while not on duty. Moreover, it appears that the agency determined that dismissal was the option, rather than probation or other disciplinary measures or undertaking sensitivity training or other such programs.