Appeals Court to Decide

It all began in January 2013 when a media firestorm ensued over a handful of blog posts Florida Atlantic University Professor James Tracy wrote discussing the anomalous news coverage of the Sandy Hook Elementary School massacre.

The controversy reached a crescendo when CNN’s Anderson Cooper sent reporters to FAU’s Boca Raton campus to pursue Tracy, then fumed incredulously over Tracy’s comments on his primetime news show.

Following FAU’s termination of Tracy in 2016 the fired professor requested his complete personnel file from the public university. Among the several hundred documents were a collection of notes hand-written by Tracy’s supervisor and dean, Heather Coltman, which were taken during administrative meetings addressing “JT”.

As Cooper took to the airwaves, Coltman joined top FAU administrators and attorneys to discuss ways to discipline or terminate Tracy. This presented a particularly thorny situation because the professor’s blog was protected by the First Amendment. Could Tracy’s speech be considered “misconduct”? “When was [the] disclaimer put on” his blog? How else could the professor’s speech activities be construed as a “violation of the CBA [Collective Bargaining Agreement]”?

After reading his blog and conferring with him briefly, Coltman concluded that Tracy was “not going to stop publishing”. The group thus resolved that he would somehow have to be reprimanded without attracting the public attention that might raise the ire of civil rights groups and FAU’s faculty union.

As the group continued to strategize it became evident that Tracy’s blog clearly fell under the First Amendment’s purview. “[A]cademic freedom,” was not at issue “because this was not academic”, Coltman wrote. A “hobby is diff[erent] from work at a univ[ersity]” and FAU officials didn’t want to be publicly perceived as “police[ing] people’s private lives.”

One way to get around the “1st Amendment,” was to “find winning metaphors,” that might create an avenue for terminating Tracy while providing “talking points” for FAU once they finally dropped the hammer.

During discovery and at trial FAU officials were loathe to acknowledge these incriminating documents. Although Coltman was “able to explain away all of the other notes she had recorded from her meetings in 2013,” attorney Louis Leo IV writes in his comprehensive overview of the TracyvFAU case, “Legalizing Pretext,”

Dean Coltman suffered selective memory loss when questioned at deposition and at trial about her note, “1st Amendment – finding winning metaphors”.

While FAU officials may not have wanted to remember or acknowledge what the note meant, anyone with common sense knows what it means. Government officials were looking for a pretext to retaliate against Professor Tracy for his protected speech.

So, what was the winning metaphor? In this case, it was a vague, confusing and selectively enforced school policy called the “Conflict of Interest/Outside Activities” Policy. It goes by many other names at FAU, including most often used “Outside Employment”, “Outside Business” or “Outside Activities” Policy.

Prior to Professor Tracy’s termination in January 2016, the Policy had never before been used to discipline, let alone terminate, a tenured faculty member for failing to report uncompensated online speech.

FAU’s million dollar legal team maintains that Tracy was merely terminated for insubordination because he failed to disclose his blogging to school officials for approval. This theme was dutifully parroted by South Florida news media, Weeks before trial the federal judge accepted this argument and nullified most of Tracy’s pleadings of their First Amendment challenges in her October 31, 2017 summary judgement order.

Before the US Court of Appeals FAU continues to hold that Tracy’s termination cannot be understood through a First Amendment lens. Consequently FAU still applies an “unconstitutionally-vague, content-restrictive” policy that at any time can be enforced as a prior restraint on any FAU professor or employee’s speech or activity that administrators for any reason deem undesirable. According to FAU, this practice does not present a civil rights concern and should remain immaterial under the US Constitution and federal rule of law.

This Thursday September 19 both sides will argue before a panel of 11th Circuit appellate judges whether FAU’s “Outside Activities Policy” was in fact the “winning metaphor” used to defeat the First Amendment.

Additional information on the oral argument venue is available here.

Related Posts:

James Tracy Files Reply Brief in Free Speech Appeal

Federal Appeal Filed Challenging FAU’s Unconstitutional ‘Outside Activities Policy’

Palm Beach Post ‘Spins” TracyvFAU Appeal

Principal Brief of James Tracy to the United States Court of Appeals for the Eleventh Circuit (8/6/18)

Principal Brief for Florida Atlantic University to the United States Court of Appeals for the Eleventh Circuit (10/18/18)

Reply Brief of Appellant James Tracy to the United States Court of Appeals for the Eleventh Circuit (11/16/18)

US Eleventh Circuit Court of Appeals Notice Granting Oral Argument/Request For Additional Docs/Counsel’s Response, (6/18,/19)

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6 thought on “DID FAU Find the ‘Winning Metaphor’ TO Defeat the First Amendment?”
  1. The justice system… It’s just us as “they” say. I am always shocked when it goes the little guys’ way. I expected nothing good to come from participating in their system. Maybe the successful lawsuits against Monsanto ( Bayer ) are the start of a new trend of the little guy winning.

  2. For roughly a decade or ten year period of my life from about 1957 to 1966, I attended and graduated from four public colleges and universities in California; Pasadena City College, UC Berkeley, California State University at Los Angeles and UC Riverside. I have sat through over 300 semester hours of classes which were directed by mostly excellent instructors or professors as the case may be. Students often asked questions and in every case the instructor would strive to answer questions intelligently and honestly and openly without any fear of reprisals by some administrator hidden in some office behind closed doors. Now some times an instructor did not want to use class time on a specialized topic so they might ask a student or students to visit with them after class. But this was not due to any fear to address questions. It was always absolutely clear, without the instructor having to explicitly say so, that he or she was speaking for himself or herself and only for himself and herself and NOT for the administration or the institution which paid them. While most of these great teachers were experts in some specialized field, still if questions arose outside their field they could and would and did speak to questions and always made it clear of their own limitations of knowledge of a subject. These were totally and absolutely honest seekers of truth. None of them would ever deliberately seek to falsify or deceive a student or anyone else. While I have never sat in any of professor Tracy’s classes I am absolutely sure he behaved in exactly the same proper professional way as the tens or hundreds of my great teachers over this ten year period at four great public schools and universities in California. All this is protected under the well established rules of academic freedom and freedom of speech and thought in Amendment Number 1 of our precious Constitution.
    What has evidently happened in this case is a group of biased and bigoted administrators have improperly taken it upon themselves to discipline professor Tracy without a cause while seeking to make him look bad because he expressed an idea or opinion, or spoke about ideas and opinions that these prejudiced and bigoted and ignorant administrators did not themselves approve, and the lying media also did not approve, thereby falsely and improperly and illegally denying professor Tracy of his fundamental free speech and free thought rights under both the rules of the academy and the rules set forth in our precious Constitution which have been defended by the blood of many brave soldiers for over two centuries! It is these prejudiced and bigoted and ignorant administrators who are on the wrong side of the law and of the academy they purport to serve in. Shame on them and shame on the judge who obviously to any thinking citizen, ruled improperly in their favor instead of declaring them totally wrong and ruling for professor Tracy who has had done NOTHING wrong period end of sentence.
    Let us all hope and pray that this appeals court will reverse this totally illegal and absurd and corrupt ruling by the first Judge. Shame, shame, shame on her. As my late Mother would say, “She should be ashamed of herself” for causing so much pain and misery to a great professor who was only exercising his most basic rights of academic freedom and his basic rights under Amendment Number 1 of our precious Constitution. And to all the other 1000 or so professors at FAU, just remember this: YOU may be the next victim on their list if you fail to part your hair the right way! So you better support professor Tracy and hope he is vindicated by this appeals court. Everyone has the most basic right to believe and express any thought or idea they choose no matter what anyone else may think about those beliefs. Isn’t this what America should be about? If FAU is to reach its true potential as a true institution of higher learning, every administrator involved in this horrible scandal, should be fired immediately beginning with coward President Kelly. Winfield J. Abbe, Ph.D., Physics

  3. Teaching students to think critically, and to seek the truth – this is a beautiful thing.

    It is also true that we have an expectation of scholarship from professors. Perhaps that is my simple way of saying that it is critically important for a Professor to explain their reasoning.

    Doctor Tracy repeatedly claims that the media didn’t do their job with regard to Sandy Hook reporting. And yet, I have never found any text or interview in which he explains what he means by that statement. I imagine this is why the average person considers his motives suspect.

    Nor does he even touch on the point that a Sandy Hook conspiracy would have required hundreds of co-conspirators – from extended family members to first responders and their families. Hundreds of conspirators – none of whom has ever let the cat out of the bag.

    I am a bit skeptical that this post will become visible on this site.

    1. Here is a suggestion for the author Mark: Put this phrase into a search engine: “rules for crime scene investigations”. Then read the articles. Then ask yourself if these rules, established over centuries based mainly on the laws of causality and the laws of physics and other sciences, were followed in the so called “investigations” reportedly done at Sandy Hook? How did the lying media do in reporting on Sandy Hook? Did they even mention these rules let alone cite them and follow them? Some intelligence is expected by readers and students.
      Winfield J. Abbe, Ph.D., Physics

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