Shouting fire in a crowded theater

The New York Daily News has a brief story about a man who was just fired for a First Amendment protest. Or perhaps I should say "had."

You see, it has been replaced with a different version of the story in the hours since some GetReligion readers sent it to me. Here's the lede by Alison Gendar and Pete Donohue:

A radical who burned pages from the Koran outside a planned mosque near Ground Zero was fired from his job at NJ Transit, sources and authorities confirmed.

Rather than give us your opinion that this guy is a radical, just tell us what he did. For some reason I can't imagine a similar mainstream news story about a flag burner or bra burner using the term "radical."

The story is very brief and includes no details about the protest other than this:

[Derek Fenton's] hate-filled display occurred during a protest against the mosque on the ninth anniversary of Sept. 11.

The updated story removes these slurs but it's got a few problems, too.

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 was ushered from the protests by police and questioned, but he was released without charges.

"He said this is America, and he wanted to stand up for it, in a Tea Party kind of way," a police source said.

Another police source said Fenton described himself as a "loyal American" exercising his "right to protest."

This story shows that who the New York Daily News considers a hate-filled radical might be who the ACLU considers a poster boy for free speech in America. So maybe it would be worth getting some perspective from civil libertarians about the free speech rights of public employees. In Garcetti v. Ceballos, the Supreme Court ruled that government employees' "on-the-job" speech isn't protected but that doesn't apply here. The story says that the agency that fired him said he violated a code of ethics. But we don't learn what portion of that code of ethics he violated.

Neighbors weigh in, saying he's a likable family guy with children, adding:

"Good for him for burning the Koran," neighbor Jacqui Marquez, 40, said. "Everybody's entitled to their opinion ... by firing him, they're sending a message that there's no freedom of speech. They're completely wrong for doing this."

"He's a family man," neighbor Randy McConnell, 43, said. "He loves his kids and he loves trains. I don't agree with what he did, but he shouldn't lose his job over it. That's his right."

That's all fine and good, but there are some serious First Amendment issues in play. It would be nice for this story to get some experts to weigh in. And what they say may surprise you. Supreme Court Justice Stephen Breyer responded to this question from ABC News' George Stephanopolous:

When you think about the Internet, and when you think about the fact that a pastor in Florida, with a flock of 30, can threaten to burn the Koran and that leads to riots and killings in Afghanistan, does that pose a challenge to the First Amendment and how you interpret it? Does it change the nature of what we can allow and protect?

Breyer responded by talking about globalization, adding:

And you can say -- with the Internet, you can say this. You can't shout fire in a crowded theater. Holmes said it doesn't mean you can shout 'fire' in a crowded theater. Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death? It will be answered over time in a series of cases which force people to think carefully.

Breyer's quote may or may not terrify you -- but it's certainly newsworthy. And when we come across an actual situation of a man burning a Koran in a free speech protest and losing his government job as a result, this is a story that deserves better reporting. The updated story is certainly an improvement over the skewed first attempt but this is a growing issue that deserves sober coverage.

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