…in his spare time, and away from his place of work:
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.
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.
Joshuapundit finds that the article was altered after publication:
Guess what? Either O’Donohue (or his editor) realized that they’d been busted for outrageous media bias. Within an hour after I saw this on Drudge, they scrubbed the story totally, eliminating any referenced to ‘radical or ‘hate-filled act’..and they deleted the comments onthe story that referred to those pungent phrases.
Just One Minute wonders if Fenton is part of a union that might file a grievance, and whether the ACLU would join in; the NY CLU stated,
“The Supreme Court has recognized a constitutional right to burn the flag. As reprehensible as it may be, burning the Koran would be protected as well.”
However, Eugene Volokh isn’t so sure:
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.
Is this an unconstitutional “religious test”? Volovkh’s commenters have a lot to say on that question.
By the way, Volokh also would like to find the NJ Transit code of ethics, so if you know where it is, send it in.