TracyvFAU: “A Very Dangerous Precedent”

By Louis Leo IV and James Fetzer

Attorney Louis Leo IV discusses James Tracy’s pending civil rights lawsuit against Florida Atlantic University with University of Minnesota Professor James Fetzer on GCN’s The Power Hour, Monday,  April 23, 2018. Leo is the lead attorney representing Tracy in the federal civil rights lawsuit against the South Florida-based public university.

The two examine Tracy’s unlawful firing by Florida Atlantic University, the corrupt and fraudulent trial defense conducted by FAU’s corporate attorneys (who received significant aid from the US District Court for the Southern District of Florida), and the implications for public employees’ right of free speech and association in the wake of the decision. Leo and Fetzer also discuss the circumstances that led to Tracy’s termination by FAU officials, which followed a smear campaign by cyber trolls and major news media seeking to defend the Sandy Hook event’s official narrative. 

One day after the interview was recorded, on April 24, US District Judge Robin L. Rosenberg issued a 31-page final order denying all post-trial motions, defending her October 31, 2017 summary judgement rulings in favor of FAU, and asserting that Plaintiff Tracy was provided with a fair trial in her courtroom. With the decisions the case now proceeds to the US 11th Circuit Court of Appeals.

For additional information on case and how you can assist in the process, please visit the James Tracy Legal Defense Fund.

James H. Fetzer: My guest for the second hour has distinguished himself by representing James Tracy, who is an Associate Professor of Communications and the Media at Florida Atlantic, who is seeking to protect the American people from an elaborate scam by investigating the aspects of Sandy Hook, in particular, Lenny Pozner’s claim to have a son, Noah, who died there.

James was a skeptic at the time, but he was exercising his diligence and responsibility on behalf of the public to ensure they weren’t take in by a scam which wound up looting the American people of somewhere between $27 and $130 million in donations in the false belief that there’d actually been a shooting massacre, and that these 20 children and six adults had died. Divided by the 26 families that were impersonating the survivors, they split and derived over a million bucks apiece.

I believe this is one of the reasons Lenny Pozner has been so ruthless in going after those of us that have been seeking to expose the truth. James Tracy turned out to be targeted, where Lenny published several articles in the South Florida newspapers, including the Jewish journal, Forward, the Sun-Sentinel and others. Tracy ended up losing his position over this. The university had a flimsy excuse, but none better to address the issues here than Louis Leo IV, who represented him. Louis has a website, peopleoverpolitics.org, and he has authored a brilliant overview of Tracy versus Florida Atlantic, titled, “Legalizing Pretext: How an American Public University Conspired to Beat the First Amendment.” Louis welcome to The Power Hour.

Louis Leo IV: Thanks for having me.

Fetzer: I’m just delighted. Perhaps you’d like to begin with a thumbnail overview of what happened here, and how this American university beat the First Amendment.

Leo: Well, I can tell you there are a lot of moving parts in this case, but we’re still waiting for the court to rule on post-trial motions, which include a Motion for Judgement as a Matter of Law, as well as a Motion for a New Trial. And, we’re still trying to figure out exactly what happened. I guess you can say it’s been a long and disturbing ride through the legal system in this case.

Fetzer: I was just going to add that I too am a colleague, a collaborator, with James Tracy, and I was the head of his legal defense fund, and I believe in this man one-hundred-percent. In fact, I can’t imagine a less likely target for an action like this than James Tracy. He is so principled. He is so measured. He is so thoughtful. He is so intelligent. And he was actually undertaking at act of what’s technically known as super arrogation—going beyond the call of duty in an effort to determine the facts of the matter, and protect the American public from fraud.

Leo: Exactly.

Fetzer: They wound up being subjected to a theft by deception, by misrepresenting what had happened there. Lenny Pozner, Neil Heslin and others have defrauded the American people of a vast sum, and have gone on this stupefying campaign for gun control that’s completely one-hundred-percent the opposite of the interests of the American people. Louis, go right ahead.

Leo: I should start by saying that the reason Dr. Tracy lost in this trial is because of deception and fraud in the court, and it’s something that the court sanctioned, using the rules of evidence. This is outlined in our motion that the court made the grave error in excluding from trial evidence that showed just how blatant and pretextual the use of this policy was to terminate a tenured professorship.

The court literally excluded the [recorded statements of the] vice provost who fired Dr. Tracy for purportedly not complying with the school policy, on record saying that the policy and the forms that Dr. Tracy was fired for not turning in on time required clarity. This was during a heated senate faculty meeting that had a great impact on Dr. Tracy and all the other faculty who were present at this meeting, where the administration of this public university could not answer a straight question about this policy. This is because nobody understood this policy. In fact, the president of the faculty senate is on record at this meeting saying he doesn’t understand the policy, and is hoping to get some clarity on the policy. A few months later, of course, Dr. Tracy is fired for noncompliance.

Fast-forward to two years later to the trial. The court excludes this damning on-record evidence, which are admissions by a party opponent. Clearly under the civil rules they should come in, but the court excluded them under what’s called Rule 403, which [states] that the prejudice from the evidence outweighs any probative value.

I’ve never seen this before. I’ve been practicing law for a long time now, and I’ve never seen a court exclude an admission, by a party opponent, from trial, under Rule 403. It just doesn’t happen. That’s just one of many mistakes that were made, and I think this one was very bad for Dr. Tracy, because the jury literally was not allowed to hear what the person that fired Dr. Tracy had to say about the policy just months before she said, “[Tracy] doesn’t comply with it.” She herself agreed that the form needs clarity. It’s completely confusing. If you look at the form, which is on the article you reference, “Legalizing Pretext,” you can see it. And, of course, it’s not designed for social media activities. It’s not designed for blogging. It’s designed for a job—another employer.

I’ve never seen this before. I’ve been practicing law for a long time now, and I’ve never seen a court exclude an admission, by a party opponent, from trial, under Rule 403. It just doesn’t happen.

At this faculty senate meeting, which was excluded from evidence, you have multiple faculty members complaining that they’re afraid, and that this policy is being used unconstitutionally. And the court excludes this.

The court also excluded cease and desist letters that were sent from constitutional rights groups, including the Foundation for Individual Rights in Education, which is what stopped FAU from firing Professor Tracy in 2013. The court not only excluded those letters, but would not even let Dr. Tracy talk about the letters, and how it impacted him, and how it affected his state of mind.

It’s the same thing with this faculty senate meeting that had a profound impact on Dr. Tracy. So ultimately, FAU was allowed to say whatever they wanted at this trial, and put on testimony about what the union in this case thought about him not turning in these forms, but was able to get out of evidence what administrators thought about the policy, and what they said on record, in recorded statements.

Fetzer: Just for the benefit of the audience, the university used as a pretext for firing Professor Tracy that he had not submitted forms for his outside activities on time. The outside activities included his blog—his own personal blog, where he was talking about Sandy Hook, where he published one of the most important original pieces dissecting the press conference held by Wayne Carver, the medical examiner, that didn’t add up in so many different ways. Which I regard as the first scholarly article about Sandy Hook. They used that as a pretext, when in fact the real issue was the content of the blog—that he was exposing that it was a hoax, and that Lenny Pozner was then attacking him in the media to warp the environment. It would turn out, I think, of having the effect of poisoning a potential jury pool. But the fact is-

Leo: But they weren’t just attacking him in the media. The records show that they were actually contacting the administrators at FAU, using proxies and third parties. Many of these people probably don’t even exist. [They were] sending letters to the administrators, telling them that Dr. Tracy’s harassing people. There’s even evidence showing that the top officials at the school are talking about this and circulating these messages with each other. They had nothing to say about it at trial, of course, But a lot of this stuff didn’t come in because it was deemed “hearsay.” So, it was very difficult to present the facts to the jury in this trial, because there’s a lot of evidence that didn’t come in, and I think given the [amount] of material evidence excluded, this should be grounds for a new trial.

We also have a Motion for Judgement as a Matter of Law, because before we ever got to trial, the court dismissed the bulk of the counts and constitutional claims against the university on Summary Judgement, which was just absurd. When you look at the evidence, it was overwhelmingly in favor of Dr. Tracy getting summary judgement on the issue of the policy being unconstitutional, and facially, meaning that it’s worded unconstitutionally, and as applied to him, and how they used it to fire him in retaliation for what he blogged about Sandy Hook.

Fetzer: Yes. Just to mention in passing, I spent 35 years in higher education. I taught at Kentucky, Cincinnati, Virginia twice, University of North Carolina at Chapel Hill, New College and University of South Florida. I then finished my career on the Duluth campus of the University of Minnesota. I never heard anything like firing a tenured professor because he didn’t submit a form on time. I mean, that’s simply absurd. Just look at the disproportionate-

Leo: There was ample evidence at trial. Every single professor testified that they didn’t turn in the form. Nobody turns in the forms, if you really look at the evidence in this case,. Not even the administrators were turning in forms, and none of them got in trouble for it. When the administration had emails showing that these people are delinquent for not turning in forms, they didn’t get punished. But Dr. Tracy, he’s fired.

Every single professor testified that they didn’t turn in the form. Nobody turns in the forms.

Fetzer: You’re making so many excellent points and this is such a serious issue. Louis, you’re telling me not only was the university acting in a corrupt fashion, but the court doesn’t appear to have adhered to the rules of jurisprudence.

Leo: No, and they dismissed most of his claims before he ever got to trial. Instead of being a case where Dr. Tracy gets a trial with these individual [defendants] it’s just the university, and there’s only a few questions: Did they fire him for his speech? And, would they have fired him for any other reason? It’s kind of like asking, “Is the sky blue?” to a jury that’s just been shown a bunch of pictures with the sky green [laughts], fraudulently of course. Or using CGI.

Fetzer: Well, it’s really embarrassing. You’re really explaining how they manipulated the situation so that the real issues were never addressed.

Leo: Sure. Write a bunch of self-serving letters and disciplinary notices, and then go to trial and just lie and lie and lie. We impeached both the dean and the vice provost. Both of these administrators were changing their stories at trial and couldn’t answer simple questions that anybody in their shoes would know the answers to. Like the note—the question about the dean’s nasty notes, which are available on “Legalizing Pretext.” You know the one I’m talking about Dr. Fetzer?

Fetzer: Go ahead and elaborate for the audience.

Leo: Sure. These are notes that were discovered during the discovery process. The notes are written by the Dean who initiated discipline against Professor Tracy in both 2013 and in 2015. And she wrote during meetings with top officials, “JT [James Tracy] not going to stop publishing. Read his stuff. First Amendment. Find winning metaphors.” And I think that speaks for itself.

Fetzer: In other words, they had to find a way to present it to the public that looks favorable to the university when it’s actually a gross violation of his rights and of the First Amendment.

Leo: Yeah, they were planning on violating his rights and finding a way to make it look clean, because they had no other reason that they could get rid of Dr. Tracy. His evaluations were outstanding, literally. And, of course, they had nothing bad to say about his teaching, and about his work and time commitments. Although they did try to lie later and say, “Oh, there’s a question about whether he can honor his time commitments while he’s blogging.”

Well, the evaluations clearly contradict any kind of question as to whether Dr. Tracy was fulfilling his obligations. He was doing his work not only excellently, but the students liked him. They all evaluated him and said that he made them think and that he’s a good teacher, which he was.

This is another example of a school that throws a good teacher out the window because of public backlash over his controversial speech. There won’t be any mainstream media coverage of this incident other than demonizing Dr. Tracy, and cheerleading, and really just parroting what the university and state officials were saying about him.

Well, the evaluations clearly contradict any kind of question as to whether Dr. Tracy was fulfilling his obligations. He was doing his work not only excellently, but the students liked him.

Fetzer: Well, that’s such an absurd question to raise because the principal attraction of a university life for me, when as a Marine Corps Officer I contemplated entering law or becoming a university professor where you have so much control over your life. I mean you have certain hours you’re obligated to be in the classroom, you have a certain number of meetings, yes. And, of course, you have office hours to meet with students. But the vast majority of your life is under your own control to do your research and so forth. I wound up spending 35 years having most of my courses Tuesday/Thursday not before 11, which enabled me to do a tremendous amount of research, which is part of the reason why I published 36 books.

But the fact of the matter is James was fulfilling all of his obligations, and he was doing a superlative contribution to the community, which is known as public service and is also supposed to be given weight when you come to evaluate merit. They just didn’t like what he was doing in exposing Sandy Hook.

Leo: Right. The reality is they had no legitimate reason to fire him. And were able to make up something later.

Fetzer: Louis, you’ve made it very clear that they never got to any real issues in this case and most certainly not about the reality of Sandy Hook. For example, we know from Tony Mead that Lenny Pozner, who seems to me to be some agent of the deep state, has no less than 26 websites devoted to attacking and harassing people over their research related to Sandy Hook. I mean it’s completely disgraceful. I know the defense used the book, Nobody Died at Sandy Hook, somehow as a prop. [The book] proves conclusively that the school had been closed by 2008, and that there were no students there. It was done to promote gun control. But that question or issue never even got on the table.

Leo: Oh yeah. They had a lot of props. They printed out every blog, including the comments from the blog, and put them in boxes. Then they brought them out to make it look like Professor Tracy had written all of it.

There was a lot of deception in this trial. They tried to make the jury believe that Dr. Tracy wrote the book. When you look at the book, he’s not the author of the book, but that didn’t stop them from saying that. We proved that these were literally two blog posts that were copied in to this book, and he didn’t write them for the book.

Fetzer: Well, of course, I edited the book. The book doesn’t have an author. The book has an editor, who is me. And I took the best of the best. Dr. Eowyn, for example, who made several contributions I selected, had already published 80 articles about Sandy Hook before I edited the book. I myself had published 30 before I edited the book. James had a smaller number, but his work was of very high quality so, of course, he was included.

But if they’d actually gotten to the issues of Sandy Hook, I mean the evidence would have been overwhelmingly on his side, not on the university’s.

Leo: When you think about it, FAU’s strategy was to make it seem like Dr. Tracy should have been reporting everything, like the book—a book he didn’t write he should be reporting. He should report his Twitter, his blog. But that’s not what the forms are for. And there was a great deal of controversy at the school right before he’s fired over what these forms are really for, and how they’re to be used. From my understanding and from the evidence a lot of people and most of the people at the university don’t turn in these forms.

In fact, when we asked the university to produce the forms for other people they barely produced any. There was only a handful, and none of them were for social media. This is not what the form is for. It’s for outside employment—working for another employer. Dr. Tracy was not employed by his blog. So, why would he be turning in a form for it? This is a very dangerous precedent if the court doesn’t overturn itself, which I’m not getting my hopes up for. Or if the appellate courts don’t reverse this and do the right thing. This is going to have a ripple effect, and basically they can just start telling people at the university, “Oh, where’s the form for your Facebook page and for your Twitter account? You’ve been doing this for a long time. This looks like research, doesn’t it? This is a professional activity.” They’re just making it up as they go. And that’s what the evidence showed at trial—that this policy is shifty and illusory.

Fetzer: It’s really stunning. The one guy here involved, of all parties to this case who was legitimate, who had integrity, who was dedicated, not only to ferreting out the truth but protecting the public from a scam, is the guy who gets impaled on this legal monster that was a complete fabrication from the beginning! Louis, this must have been a gut-wrenching-

Leo: And nobody from that school did an investigation to determine the veracity of what Dr. Tracy was saying. Not one person that we deposed. Not even the history teacher, whose whole department wrote a letter to Dr. Tracy condemning him for what he was saying. Not one of those professors investigated or took a closer look at what Dr. Tracy was saying before they condemned him and jumped on this corporate-state media bandwagon, that if we say it, it happened. It’s just disturbing.

And what was interesting about the discovery process in this case is just when you look at what these administrators and the professors who disagreed with Professor Tracy were saying, none of them took a real second look at what the evidence showed. The evidence that was in the book, for example, that FAU accused him of writing. It’s overwhelming the evidence that [Sandy Hook] is a fake, staged event. And here they are, acting like it’s not. Acting like Dr. Tracy’s crazy. “How dare he question a questionable event, that’s being used for a political agenda.” That is ultimately why everybody should be defending Dr. Tracy, no matter what side of the spectrum you’re on. This is a dangerous case because the rights of all American citizens to speak and to question is at stake here.

This is a dangerous case because the rights of all American citizens to speak and to question is at stake.

Fetzer: And of all people who ought to have that right it’s university faculty, particularly tenured. I mean the institution of tenure was created to give protection to faculty so that they could attack controversial issues free from political recrimination. But that’s exactly what happened here. Politics played all the role here, and truth and research none, zero, zip.

Leo: Absolutely. I think this is what’s so amazing about this case. You know, the “conspiracy theorist professor.” You have a real legit conspiracy to silence him. But thankfully you can shoot the messenger, but the truth doesn’t die.

Fetzer: It’s stunning, absolutely stunning. And a disgrace to higher education. I published blogs showing that not only had The New York Times and The Washington Post published malicious articles about Professor Tracy’s case where I demonstrated they knew better. But even The Chronicle of Higher Education, which is published for academicians, members of colleges and universities, gave a completely biased and distorted, non-objective slant. It’s just disgraceful.

Leo: They’re not journalists. They’re all presstitutes. These people, they don’t do journalism. It’s just PR. They’re just literally repeating this tune like mockingbirds. And it’s dangerous. It’s a shame. I’m so disgusted with the local press during this trial, who claimed that they were there and reporting it, when I can tell you, we looked back [in the gallery] and they weren’t there. They’d pop in and out, but I don’t know where they were getting their story from.

I would look [at the news coverage] after we’d be done for the day and it would be completely made up, you know? I don’t know where they were getting it from. It’s so absurd, and then they’re just repeating little sound bites of FAU’s deceptive and misleading theory of the case. That [Tracy is] doing this secretly and trying to hide it from the school. It’s a public blog. Everybody knew about it. It’s just absurd.

And we shouldn’t have had the media pretending like Dr. Tracy did something wrong, which he didn’t. He did nothing wrong. Of course, we’d make an effort to give these reporters information about what happened at trial, particularly when they’d miss something important that happened, like all of the professors testifying. You didn’t hear one soundbite or anyone sharing what happened in court when those professors said that they didn’t understand the policy and they never turned in forms. You didn’t hear anything about the first professor who testified that he was targeted under the policy, and they took away his grant and his students didn’t graduate. And, of course, he appealed the discipline that he faced under the policy, and it was overturned in arbitration. They didn’t report that—that there’s a pattern of using this policy in a way that’s unlawful at the school.

Fetzer: Well, you make so many excellent points. Right now is it going to the appeals court, or is it still in the court of origin?

Leo: It’s still at trial court level until the court rules on the post-trial motions, which could be any day.

Fetzer: This is what you’d expect in a fascist society, or in Stalinist Russia. I mean this is a kangaroo court. This wasn’t an honest trial.

Leo: Unfortunately, no. He didn’t get a fair trial, and hopefully he will one day. I don’t have much to say when it come to the integrity of the process. The legal system in this country is completely corrupt. I think every level of government is completely corrupt. Unfortunately, it’s a crap shoot.

I don’t have much to say when it come to the integrity of the process. The legal system in this country is completely corrupt.

Fetzer: I’ve gotten to know a fellow in New York who was the subject of an attempted assassination by his dentist, who gave him a massive infusion of fluoride. Had he not been on an unusual vegan diet and drunk a smoothie after he got home he’d be dead today. Instead, his teeth are falling out. He suffered all kinds of medical problems. I published four different blogs about his case. But when he finally got in to trial, he was bringing the trial against [the dentist] and the city was running interference.

I’m personally convinced that she’s part of an assassination ring that is run by the CIA, and they don’t want her to be exposed. So she’s threatening that if they don’t protect her that she’s going to blow the cover. He wasn’t even allowed to call his witnesses. He had a list of expert witnesses. I was one, but wasn’t allowed to be called. They misused the blogs—somehow managed to use them against him. It was completely outrageous. Very parallel to what you’re talking about here in Florida.

Leo: Look, this is a system we’ve allowed the insurance companies and the government to shape, where the rules of evidence now exclude all kinds of evidence if it’s damning or damaging to these powerful interests. If you don’t have a judge who is fair and impartial, and applies the law evenly and consistently, you’re left with an injustice system. We’re hopeful that the court will reconsider what it did and reverse itself. But if not, then it’s going to go up the ladder. Who knows how long that’ll take, and as they say, “Justice delayed is justice denied.”

Fetzer: Especially a case like this where his livelihood has been compromised by this. He’s been cut off from his profession for which he trained. It’s not like you can take any man in the street and put him in a classroom at a university and have him offer courses where he gets outstanding evaluations. Most people couldn’t do this for five minutes, much less make a career out of it.

Leo: Yeah. The way FAU weaseled him out of his job really was a death sentence. Of course, FAU will claim, “Well, he did it to himself.” But that’s not what the record shows. Unfortunately, this is not just going to have an effect on Dr. Tracy and his ability to find work. But it has a chilling effect [on other faculty]. I’m sure it’s already being felt at not just FAU, but at other state universities. I’m sure they’re aware the way this went, and if you’re a professor and you’re blogging, if you’re doing social media and sharing your thoughts, your private research online, you can be targeted in this way. And this case will be a precedent, at least at the district level. Until the court reverses itself, or the higher court reverses the decision here, it’s open season for truth seekers.

I think we’re seeing ripple effects. If you look at what’s happening in North Miami Beach you have an officer who’s under a pending internal affairs investigation because of his [social media] posts about the Parkland event. We have many public servants under attack, and not enough people, particularly in the media or journalists, doing their job to raise awareness and to come to these truth seekers and citizen journalists’ defense. And stand up for what’s right, which is the First Amendment, and everything that comes with it.

I think we’re seeing ripple effects. If you look at what’s happening in North Miami Beach you have an officer who’s under a pending internal affairs investigation because of his [social media] posts about the Parkland event.

To me it’s so hard to believe that the press would be the first to abandon something they’ve benefited from so much historically.

Fetzer: It’s a reflection of the corruption of our universities and their administrations. By the way, of course, as everyone in higher education knows, the faculty never speak for the university. That’s the role of the administrators. So the idea he needs to make it clear that he’s not speaking for the university, that’s common knowledge. It ought to be well understood that faculty are like independent contractors and they never speak for the university. Only the administrators—the presidents, the deans and so-

Leo: That policy and that rule, that you’ve got to make it clear you’re not speaking for the university, that doesn’t even apply to things at FAU. There’s plenty of evidence and statements that were made by other professors, even former administrators, who didn’t get permission for what they were saying that just so happened to be disparaging to Professor Tracy, [for example], telling him that he should resign. Nobody got punished for that. Nobody got punished for not turning in forms for their op-eds. It was a completely sham policy that they used to weasel him out of his job. It was just disgusting really. I was pretty shocked when, given the overwhelming evidence—the greater weight of the evidence in this case, it was just obvious that he was fired for his speech about Sandy Hook and the Boston Marathon bombing and everything else. But here you have a jury come back and say, “No, he wasn’t.”