As a legal matter, this isn't as cut and dry as you might think, regardless of what the transit autority's code of ethics, or his specific employment contract might state.
Remember -- if the contract he signed with the Transit Authority violates state and/or federal law, or the state and/or federal constitution, the portions of that contract that are in violation are essentially unenforceable. (This is a basic and central principle of contract law).
If he was fired under an unenforceable clause of the contract, that is very likely to be considered wrongful termination by the court.
Rather than try (and probably fail) to break it down myself, I'll leave that to UCLA law professor and respected 1st Amendment scholar Eugene Volokh. The text of Volokh's post on this situation is quoted below. To see the post in its original context
click here.
Quote:
The relevant First Amendment test for when the government may fire an employee for off-duty expression on a matter of public concern (such as the expression here) is unfortunately quite vague: The government may restrict such speech, but only if the restriction is ?necessary for their employers to operate efficiently and effectively? (with ?necessary? being read a bit loosely). It?s hard for me to see much of an argument that Fenton?s expression interferes with the employer?s effectiveness by undermining public confidence in the employer; Fenton isn?t a spokesman for the employer, or in a position where the public must be able to count on his fairness in exercising discretion with regard to members of the public (e.g., a police officer)
The one argument I can see the government potentially persuasively making is that Fenton?s expression might lead to a risk of terrorist attack on NJ Transit trains; such a ?heckler?s veto? might be permissible when it comes to the government?s actions as employer, as opposed to the government?s actions as sovereign policing the speech of private people. But if that?s so, then unfortunately it?s one other item we have to add to the growing Extremist Muslim Thugs Win file; and unfortunately the bigger the file gets, the more incentive the thugs ? including at some point thugs of other ideological stripes ? have to keep being violent and threatening violence.
If you can point me to the relevant part of ?New Jersey Transit?s code of ethics,? I?d love to see it; a quick search through the NJ Transit site didn?t uncover this document. Thanks to Jeff Heldman for the pointer.
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1st Amendment jurisprudence is many things... simple and straightforward aren't among those things.
