newjerseynewsroom.com

BY BOB HOLT

NEWJERSEYNEWSROOM.COM

Derek Fenton, the former New Jersey Transit train conductor who was fired after publicly burning pages from the Quran on the ninth anniversary of the Sept. 11 attacks filed a lawsuit Friday, looking for reinstatement and monetary damages.

The American Civil Liberties Union said in the lawsuit that Fenton's dismissal violated his constitutional right to free expression.

Fenton burned part of the Quran to protest plans to build an Islamic center several blocks from the World Trade Center site. He was not arrested. NJ Transit said it fired him two days later for violating its code of ethics.

Fenton "has the right to engage as a citizen in expressive activity about matters of public interest, including matters related to the proposed construction of an Islamic community center near Ground Zero,'' the lawsuit alleges. ""When he burned pages of the Koran on September 11, 2010, as a protest against the center, Fenton was exercising that right.''

"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."

According to an Associated Press report in the Asbury Park Press, NJ Transit's code of ethics requires employees to give notice to an ethics liaison officer before participating in political activities. An employee can then participate so long as state or federal law or agency rules don't explicitly prohibit them and ""the activity doesn't conflict with the employee's official duties.''

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."

It's not known if Fenton gave notice of his plans. Frank Corrado, an ACLU attorney handling the case, said the First Amendment doesn't protect employees of private companies but it applies in Fenton's case because NJ Transit is a quasi-public company created by state statute.

Two months ago Terry Jones, a pastor from Florida, announced plans to burn the Koran on Sept. 11. 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.

At that time, Brandon Hensler of the ACLU of Florida said to CBS News, "We are in a unique position to say he has the right to burn the Quran, and then walk across the street and protest him for doing it. You can't censor speech based on hypothetical outcome. The Reverend clearly has the free speech right to burn a Quran, and it's everybody else's right to exercise their free speech against him. You can't pick and choose who has constitutional rights."

Jones eventually decided not to burn the Koran. But Fenton did.

NJ.com reports Fenton, standing outside the proposed Islamic community center site and wearing a khaki baseball cap and navy blue polo shirt, pulled pages from the Islamic holy book and set them on fire with a lighter. Fenton was not working that day, nor did he identify himself as an NJ Transit employee, the lawsuit said.

Fenton, 39, had worked for NJ Transit for 11 years as a train conductor and most recently as a coordinator.

He was removed from his job Sept. 13, according to the lawsuit, which seeks back pay and punitive damages. Corrado said attempts to get Fenton's job back were unsuccessful.

Corrado said "this is the kind of case the First Amendement exists for." He drew a comparison to flag burning, upheld as free speech by the U.S. Supreme Court in 1989 and 1990.