Strengthening Constitutional Self-Government

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Burn a Koran, Lose Your Job?

Even if you work for New Jersey government (transit)?  John Eastman, among others (Eugene Volokh), disagree, in a New York Times symposium.  No Heckler's Veto--especially if you're not on duty when the stupid act was done. 

[H]ow far are we willing to let the threat of violent reaction to peaceful speech and expression go when it is used to curtail First Amendment freedoms? Suppose that Fenton had simply held up a placard (or a cartoon!) defending Israel and chastising those who launched mortar attacks against Israel from the Gaza Strip as the latest round of Israeli-Palestinian peace talks were getting under way? If New Jersey Transit thought that might provoke attacks against its trains, too, could Fenton be fired for that as well?

Governor Christie's heroic efforts to rein in spending may be for naught if New Jersey has to pony up for the firing!

Categories > Courts

Discussions - 7 Comments

It was absolutely wrong for him to be fired or reprimanded in any way.

I appreciate the concern for free speech rights, and will definitely remember this article and post the next time flag-burning comes up.

Who on this site ever called for denying someone the right to burn the flag, absent a constitutional amendment?

Tim, I'm with you insofar as a) until a Const Amendment or b) the Supreme Court overules its previous decisions, that the "right to burn Old Glory" is the law on the books. Of course. I think b) would be the better way in perfect world to rid ourselves of this noxious right, i.e., my impression of the juriprudence is that the First is incorrectly interpreted as not allowing laws against Flag-buring. And, I can say that spending political capital on such an Amendment (a) would not be a smart move for conservatives to make now. Scum-bags burning our flag is not a pressing issue. Putting originalists on the SC is, and it probably would eventually take care of this judicially invented "right."

Now as to whether an employer should be free to fire an employee due to outside-of-work legal activity it finds reprehensible, that is another issue, one perhaps narrowed when the employer is a public one. And whether NJT is behaving stupidly, inappropriately, and unjustly is yet another issue (IMO--it is behaving so--even if you're not with Craig on the "absolutely" language), although perhaps not a legal one.

Incidentally, I am not per se opposed to anti-sacrilege laws--fines for burning Bibles, Korans, American Flags, etc., extra charges for vandalizing houses of worship, public floggings for moronic Piss-Christ-level "artists" (kidding, of course, on that last one) and so on. I might oppose such laws if I could be shown they would raise problematic enforcement issues, but at the fundamental level I would have no moral objection, and no "America's tradition of free speech" objection either(such an objection rests on a false J.S. Mill reading of OUR tradition--see Lowenthal's No License for Liberty).

But really, NJT, you hired the man to run the trains, not to fit your vision of a Correct American. And your publicity-generating action has probably only made more K-burnings more likely. Way to go.

"I am not per se opposed to anti-sacrilege laws--fines for burning Bibles, Korans, American Flags, etc., extra charges for vandalizing houses of worship, public floggings for moronic Piss-Christ-level "artists" (kidding, of course, on that last one)"

Okay... but are you serious about all of the other stuff? There are a lot of different religions practiced in the US - how would we even determine what was sacrilege? Would we work with a definition of sacrilege that includes blasphemy? Would we codify all of what is considered sacrilege under Catholicism, Protestantism, Mormonism, Judaism, Islam, Hindu, etc.??

Also, I didn't know that burning the US flag counted as sacrilege. Is it sacrilege if another country's flag is burned, or only if it's an American flag?

how would we even determine what was sacrilege?


See? You and I can agree on something. :-)

But as Carl points out, just because I have the constitutional right to free speech, it does not mean you are protected from any and all consequences of your speech. The state may not be permitted to impose a consequence, but others may.

That was the distinction utterly lost on the Dixie Chicks a few years back. Yes, Natalie, you may saw whatever you want. You have a constitutional right to your ability to say such things. And others are free to boycott your concerts and CDs. Boycotts are not a suppression of free speech.

Laws are clumsy things...put together all the top religious leaders, get a list drawn up of all 372 sacrilegious acts prohibited, and some joker or some self-important activist will find the act 373 that perhaps they should have put on the list and start doing it everyday at City Hall. This one aspect of what I meant about enforcement issues. Obviously, we run up against a similar dynamic with porn and child-porn, but there the need for laws is more pressing and so we live with the messiness of having laws on the books.

Still, a simple law that accepted these limits and simply forbade all public-display destruction of scriptures or sacramental objects might be a good one to have on the books.

See, right now, the way we behave is this: J.S. Mill dogmatism about free expression collides into normal Islamic sensitivities AND into an-at-bottom-imperialistic and Sharia-istic attempt on the part of Islamists to avenge anyone who disses Islam anywhere in the world, to make the entire world adopt part of their code or pay with blood. The second half of that statement is why it really can be a patriotic and necessary act to have an "Everybody Draw Mohammed Day"--you have to show the transnationalist-Sharia bullies that YOUR law will be determined by your people.

But Muslims are not insane. And a whole slew of issues, Westerners need to continually remind themselves of this.

And it is fairly easy to understand that desecrations of their scriptures will deeply pain them and probably put them face-to-face with scriptures or Hadith-type teachings that plausibly demand of the believer vengeance for these desecrations. But obviously, a DE FACTO prohibition in the West of Koran burnings while evading/downplaying the issue vis-a-vis the scriptures of other religions, a de facto situation based on multicultural bigotry "logic", and on raw policing calculations of what actions are most likely to disturb public peace, is precisely the sort of caving hypocrisy the "everyone-draw-Mohammed" folks are so right to oppose.

So, having anti-sacrilege laws that protect all religions, laws narrowly defined and probably seldom enforced, might be a good thing. It would be a way of lawfully, democratically, and manfully backing down from the current insanity, in which we are obliged to back up to the hilt any Rev. Jones anywhere in America in the name of free speech and defense against imperialistic Sharia.

Oh, and most American Christians would be grateful. That is, you might even have to admit to yourself that such a law might be a good thing even apart from existence of Islam.

Sorry ... respectfully disagree with your analysis.

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