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American pastor Terry Jones vows to hold national Koran burning event

Discussion in 'BBS Hangout: Debate & Discussion' started by joesr, Sep 7, 2010.

  1. rocketsjudoka

    rocketsjudoka Member

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    Perhaps I should back track through it some more time allowing.

    Anyway for the record it might surprise you that I don't think the employee should be fired on the principle and think it is unwise for them to do so. That said if NJ Transit has a procedure that allows employees to have speech but also protects NJ Transit's right to control their own message but this employee didn't follow it then they are within their rights to fire him.

    The argument you are making is that free speech is absolute which is nice in principle but you cannot have your employees just saying anything that might contradict your own message or possibly impair how your business is conducted.
     
  2. AroundTheWorld

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    Again, read the thread before you tell me what argument I make.
     
  3. rocketsjudoka

    rocketsjudoka Member

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    So asking you a question that is relevant to the discussion is a smartass comment? :confused:
     
  4. AroundTheWorld

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    It is a smartass comment to not have read the thread (and admitting to not even having understood the facts of the case, which does not stop you from discussing hypotheticals), but come in and tell people what you think their argument is.
     
  5. rocketsjudoka

    rocketsjudoka Member

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    I will time allowing but given that my time is limited would you care to answer the question now and / or restate your argument?

    I am not trying to badger you but since I didn't participate in this debate earlier I am allowing you to restate your position.
     
  6. AroundTheWorld

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  7. bnb

    bnb Member

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    I haven't followed the case either...but the ACLU statement posted by ATM was specific that he didn't identify himself as a transit employee, and that he should be able to engage in constitutionally protected speech on matters of public concern in their personal capacities.

    I agree.

    And he shouldn't need to ask his employer whether he can attend such an event (or even inform them that he's attending) any more then he should have to ask to attend a political rally, or shop at a store, or cheer for the Cowboys.

    I'm not sure if NAMBLA membership would be covered by this. It may. As you stated -- the ACLU has spoken out on behalf of the rights of neo-nazis and KKK members so possibly it does.

    But...

    protected speech
    of public concern
    in his personal capacity....

    should there be barriers to this.....for a transit employee???
     
  8. FranchiseBlade

    Supporting Member

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    That combination does not intervene with first amendment rights anymore than "we have a procedure for your group to march in demonstration, and if you don't follow it and get a permit you can be fined and/or locked up.

    Yet that is the procedure in almost every city and town in the United States and it has been deemed in almost every instance to be constitutional
     
  9. bnb

    bnb Member

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    Requiring a permit for a public gathering is very different then giving an employer authority over granting permission to attend that gathering.

    The permits are OK for staging an even, I think, because there's a genuine reason re: security, etc. But you wouldn't want to have to inform or ask permission from your employer just to attend a rally, would you?
     
  10. AroundTheWorld

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    bnb already answered this.
     
  11. FranchiseBlade

    Supporting Member

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    I wouldn't mind informing them. I shouldn't have to ask permission though.
     
  12. bnb

    bnb Member

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    Really?

    I absolutely would mind informing them. It's none of their business. My employer has no business knowing which rallies I attend, which marches I participate in, or what political party, or issues I support. There's no telling what ramifications documenting all this might have on my employment, or relationship with co-workers and/or supervisors, or whether the potential for that would inhibit my actions. Again -- they've no reason to know that would supersede my right to express my speech in a manner of my choosing (with caveats for legality, and not appearing to represent the employer).

    Imagine a small department, with a staunchly conservative supervisor. And you have to tell him you're attending a gay rights march, or war protest, or any other call to action that he might be against?

    Surprised that you're OK with it. Seems like a pretty basic civil rights matter.
     
  13. FranchiseBlade

    Supporting Member

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    The employers documenting the matter is a different thing altogether. I would not be Ok with that. If it was something where I had to just assure them I wouldn't wear a company uniform while at a gay rights protest or anit-war protest, I would be fine with that.

    That was my understanding of the law here. If it was something that would be documented by the employer I would definitely have a problem with that.
     
  14. bnb

    bnb Member

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    I think that's the bit in the ACLU piece on "in his personal capacity."

    If you're wearing a uniform or otherwise potentially presenting yourself as a representing the employer, then they have a right to be involved. I suspect there's standard wording, or at least an understanding of conduct that's allowed when in uniform -- even when 'off duty.' But otherwise, you should be free to be as active as you choose in any political or social issue without their knowledge. I think that's the gist of the ACLU case. There may be exceptions in certain industries or professions -- but the onus would be on supporting reasons for those exceptions, rather then accepting them because they're written into a policy manual.

    I don't think you can inform about a specific event (or acknowledge that you were informed) without documenting.
     
  15. rocketsjudoka

    rocketsjudoka Member

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    I've read through the thread since Fenton was first mentioned and the links. Interesting stuff. I will comment on it further but my example is still relevant and I would like to hear your response on it.

    Is publicly declaring you are a member of NAMBLA free speech? I will add a further do you think such declarations is grounds for a public employer to fire an employee?
     
  16. AroundTheWorld

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    It is not relevant to the thread at all. It is a separate hypothetical legal question that you are bringing up, which has nothing to do with Fenton's case at all. But ok.

    The answer to your question depends on whether a court would consider the declaration that you are a member of NAMBLA a "matter of public concern".

    A matter of public concern is one that is related to “any matter of political, social, or other concern to the community.” For instance, if a firefighter were to criticize the city’s preparedness for a fire, this would be a “matter of public concern.” On the other hand, speech that relates to a purely private interest or an isolated workplace complaint is usually not considered a matter of public concern.

    So in other words, a court would have to discern whether the person is trying to make a political statement by declaring his membership in whatever this NAMBLA thing is, or if the person just wants to let people know about his personal lifestyle choices, without having a political agenda for doing this declaration.

    But in any case, I would think that there are certain explicit or implied anti-discrimination laws in place nowadays in most western jurisdictions which would - separately from free speech considerations - bar an employer (at least a public one) from firing an employee based on their sexual preferences.

    Hope this answers your hypothetical question (which has nothing to do with the case at hand).
     
  17. rocketsjudoka

    rocketsjudoka Member

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    Getting back to this thread and thank you for answering my question.

    It is relevant in regard to determining where people stand in regard to free speech as a principle and how that may impact one's ability to carry out the job. I forgot that you are from Germany so you may not be familiar with NAMBLA but it is an organization that advocates for the repeal of laws regarding statutory rape, essentially legalize pedophilia.

    Its relevant in regard to that it takes out any political bias in regard to what someone might feel about Muslims, where there is a large divide, to something that is almost universally despised.

    Again with NAMBLA it is a political statement as they have an agenda regarding the repeal of laws. In that sense it is political speech. At the same time given the nature of that speech it does suggest a suspicion that the one declaring membership has a personal predilection towards the sort of behavior, pedophilia that, NAMBLA is trying to decriminalize. The issue with this is that while on one hand one could argue that this is political speech that is protected under First Amendment rights which means that a public employer such as NJ Transit couldn't fire the guy, on the other hand this might be an indication that this guy might very well might be a pedophile.

    Under all of the argument that you have made, which I will agree is well supported by the legal citations provided, Fenton shouldn't be fired but also under that argument then if an employee in Fenton's situation had declared he was a member of NAMBLA also shouldn't be fired either. Why this is relevant is again because you and many others don't see a problem with with burning the Qu'ran. I am laying out an example though pointing out specifically why a public employer might want to fire an employee exercising free speech rights even on private time. I am giving you an example that goes to the principle of free speech rights for both the individual and the company that removes the feelings in regard to Islam.

    In regard to the specific case I agree that the law citations would very likely support the Fenton keeping his job. I do have one doubt though that I brought up earlier. While from the case law it is clear that Fenton cannot be fired for his speech on his private time and the employer's agreement cannot overrule that. Reading the NJ Transit's ethics statement though it doesn't appear that are saying to punish him for speech but just that they would like to be informed before hand of his speech. In that case it doesn't look like they are restricting his private speech merely that they are informed of it. Following the tests that were laid out in one of the links it seems to me that they could fire Fenton not for his speech but for not following procedure. Again paralleling the Olbermann case where MSNBC said they were not punishing Olbermann for making those donations, or who he was donating too, which would be a restriction on speech, but suspending him for not following the procedure of informing them ahead of time he was making political donations. Granted that MSNBC is a private employer while NJ Transit is public in both cases it seems like an argument can be made that both employees are not being punished for their speech.
     
  18. AroundTheWorld

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    A "procedure" as a restraint to free speech is subject to the same constitutional limits. What matters is was the guy able to exercise his speech freely. They have no right to impose a procedure on his free time when he spends that in a way that has nothing to do with his job.
     
  19. rocketsjudoka

    rocketsjudoka Member

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    Is "informing" the same as "limiting"? NJ Transit is not saying that he can't say certain things on his own time just that they are informed ahead of time.

    I bring this back to one of the tests cited in one of the links.

    http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/employpunishment.html

    [rquoter]4. If the government says that it had additional reasons for punishing the employee that do not relate to the employee's expression on matters of public concern, would those additional reasons have resulted in the same punishment that the employee suffered? (Unless the expression on a matter of public concern was a "but for" cause of the punishment--but for that expression the employee would not have been punished as he or she was--the employee loses on the First Amendment claim. The government, however, has the burden of proof of showing that the other reasons would have produced the same punishment. Doyle) [/rquoter]

    NJ Transit here could cite that they had an additional reasoning for firing Fenton, not following procedure. While the action he took resulted in this particular expression of public concern it seems to me that under following their own ethics guide that no matter what the issue is they can be punished for not informing NJ Transit ahead of time that they are making that speech. They can say whatever they want as long as NJ Transit is informed. It seems like that might fall under the "but for" clause. So the employee wouldn't be punished for their speech, but for not informing the employer ahead of time.

    Just to add that public employers do put procedures all the time that restrain how employees spend their own time. For instance procedures regarding drug and alcohol use.
     
  20. AroundTheWorld

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    You could try to argue that, but the court will decide that the firing was unlawful, whether you try the trick with the "procedure" or not.
     

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