Freedom of Speech for Everybody. Including Idiots.

A few weeks ago a pastor out in Gainesville Florida announced his plans to burn a number of Qurans. As expected there was a lot of hand wringing about what Muslims in the US and abroad would do when they saw this. Most pointed out that such an action would inflame the Muslim world and complicate the current military expeditions in places such as Afghanistan. While I agreed that such events had a high likelihood of happening, they were ultimately irrelevant to the issue at hand. They are irrelevant because in the US, where there is a secular constitutional government this pastor and everyone else [still] has the right to do and say things that others find offensive. That right cannot be abridged for the sake of non-citizens or threats of violence by those citizens that are offended. In short, one does not negate the right of someone with threats of or actual use of violence. Furthermore; I argued that the president and others representing the country ought to be making it clear that in the US we [still] allow for all manner of speech including that which would be seen as blasphemous and sacrilegious and that a democratic society must do so in order to protect everyone. That is what the troops that so many claim to support are supposed to be fighting for.

Some persons argued that the pastor's threat to burn his private property is akin to shouting "Fire" in a theatre. The problem with this argument is two fold:

1) The shouting of "fire!" in a theatre (regardless to whether a fire exists) is not free speech because doing so induces people to carry out a lawful activity that may result in their own harm. Getting up and running out of a building is a legal action. It is the mass confusion that would result in the possible deaths of people by trampling (which again is not something a person can be prosecuted for) is what is being avoided. This leads to point two.

2) The violence that would be directed either at the pastor or anyone else is illegal activity. Protesters cannot assault someone they dislike. They cannot legally assault someone who says or does something they dislike. They may not threaten to kill a person or groups of people. They may not threaten to destroy private or public property of others either. Therefore if any Muslim or non-Muslim who would be offended by the pastor's action had decided to have revenge by illegal means it is they and only they that have broken the law and who would be responsible for any loss of life or property. They have no existential threat to defend against which is in clear contrast to the patrons of the theatre who are lead to believe their very lives are in danger.

Ultimately my support of the Florida pastor was not about his stupid behavior. It was a defense of his right to do behavior which I do not personally approve of. Understand that this is purely a selfish thing. I defend his right to be an idiot because at some point in time I may engage in behavior that someone else thinks is completely abhorent and I would not like for my right to do whatever it is to be abridged by that persons sensitivities. I warned people that if they took their eyes off of the constitution because they are so self centered, then the government would eventually abuse their power.

As if on cue, news came that a NJ state employee was fired because he burnt pages of the Quran during the Sept. 11 memorial event.

There are a number of important problems with the firing of this fellow. Firstly Fenton works for the state. One of the state's primary functions is to protect the rights of its citizens. It must do so regardless of race, creed, color and yes political and religious leanings. The state cannot pre-empt it's employees constitutional rights so long as the actions of that employee were not done during his or her hours of employment, while representing the state or acting in a capacity in which the public can construe that his actions are on behalf of the state.

On September 11th Mr. Fenton went to the site of the current and supposedly soon to be remodeled mosque at Park 51. He was on his own time exercising his constitutional right of free assembly by joining a protest against said mosque. During that protest Mr. Fenton burned a copy of (or pages of) a Koran, which we must assume was his personal private property. Such actions, including the burning of the state or national flag, cigarettes, toilet paper, effigies of past or present presidents are all constitutionally protected speech. There is no legal controversy about this. The SCOTUS has laid this issue to rest.

Mr. Fenton was "ushered" from the scene by NYPD who found no grounds to charge him (a shock I know). So as it stands Mr. Fenton broke no laws and was exercising his right to freely assemble and freely speak while off the clock and out of uniform and no one at the scene or reading about the incident would have thought that Mr. Fenton was acting on behalf of the state of New Jersey. You would think that the highest elected official in NJ who is charged with protecting it's citizens constitutional rights on both state and federal would have come to his defense. No a chance. Gov. Christie decided to defend the state's decision to fire Mr. Fenton for exercising his rights.

"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."

Ahh the infamous NJ Code of ethics. I am familiar with the NJ code of ethics. Much of it is on the level but a number of its codes fall afoul of prior restraint. Prior restraint is when a state attempts to abridge the rights of it's employees by claiming that certain activities must have the prior approval of the state. Those codes remain on the books because the citizens: 1) usually do not have the resources to challenge these rules to the supreme court.
2) Do not have representatives who are looking out for the citizenry.

What exactly is the "trust as a state employee"? Exactly what was he "entrusted" with that was paramount to his constitutional rights? NJ and the Federal government are not religious authorities. They do not have the right under any law of the land to determine what Mr. Fenton can say or do with his personal property on his time. The state MAY require employees from refrain from certain religious speech on state grounds by state employees. It may, for example, deny the display of the Ten Commandments on it's property. It cannot stop any of it's employees from posting them on their front lawn and it certainly cannot fire an employee for doing so.

Ultimately the firing of Mr. Fenton was a political move to pander to the group du jour. It is also a dangerous move that threatens the constitutional rights of every resident of New Jersey. Who gets to decide what "trust as a state employee" means? Who in the state get's to draw the line on what legal activity is off limits to state employees? Will it be a twitter post? A facebook update? Attending the wrong meeting? Your sex life? Perhaps support for the wrong political candidate? It is a slippery slope when we carve these so-called exceptions to constitutional rights.

I don't expect the usual suspects who fill my twitter time line with rants about unfair immigration laws in Arizona or about the right of Muslims to build mosques where they please (within' zoning laws) or who defended the attacks on the 14th amendment to the Constitution to come out against this blatant civil rights violation because who wants to defend a so called "Islamophobe"?