Tag Archives: prior restraint

Palm Beach Post ‘Spins’ TracyvFAU Appeal

Ignores How FAU is Imposing an Unconstitutional Prior Restraint on Its Faculty

Editor’s Note: As we have noted (e.g. here, here, and here), the Palm Beach Post and South Florida Sun-Sentinel’s TracyvFAU coverage suggests how their editorial boards live in a parallel universe when it comes to accurately reporting on such a significant First Amendment case. One exhibit is the excerpted August 6 article below, the spin of which denigrates Tracy while defending major media’s dubious narrative of the 2012 Sandy Hook massacre event.  

In this instance we acknowledge that court reporter Jane Musgrave must have in fact read the entire appellate brief (or larger portions thereof) than a previous story suggests since she accurately references the name of its principal author.

However, the report fundamentally misses the crux of the case itself. The TracyvFAU appeal does not simply involve “former Florida Atlantic University professor James Tracy[‘s] … right to call Sandy Hook a hoax,” or his “ongoing quest to get his job back,” as Musgrave’s simplistic storyline suggests. 

Rather, the case and appeal encompass the guaranteed free speech rights of every university faculty member at FAU and throughout the United States. In fact, the newspaper disregards what we make perfectly clear in last week’s public statement on the appeal:

Here’s what the Post’s overall coverage of TracyvFAU (perhaps intentionally) overlooksFAU is using a policy derived from Florida State Statute as a prior restraint that intimidates with the threat of formal discipline all FAU faculty and staff members from commenting on matters of public concern, or making practically any public remark that could potentially displease FAU administrators and/or trustees, State University System of Florida officials, or the Governor of Florida himself.

Academic freedom and free speech at American universities should not resemble that of Communist China’s. Yet it would be difficult to conceive of a policy that is more openly hostile to the fundamental academic freedom and free speech tenets of any self-respecting US university.

Fired FAU professor declares it’s his right to call Sandy Hook a hoax

Jane Musgrave
Palm Beach Post
(August 6, 2018)

Lashing out at his former bosses and a federal judge, former Florida Atlantic University professor James Tracy is back in court, again claiming he was wrongfully fired for publicly and repeatedly proclaiming that the Sandy Hook massacre was a hoax.

In his ongoing quest to get his job back, Tracy insists a federal jury got it wrong in December when it decided the university fired him for insubordination, rather than for his conspiracy theories about the 2012 Connecticut school shootingthat left 26 children and teachers dead.

“FAU fired Tracy in retaliation for controversial posts he made on his personal blog regarding the legitimacy of the Sandy Hook Elementary School massacre,” attorney Richard Ovelmen wrote in a 63-page appeal filed last week with the 11th Circuit Court of Appeal.

The university’s claims that it fired Tracy because he failed to report his work on his controversial blog, Memory Hole, are nothing more than a ruse, Ovelmen told the Atlanta-based appeals court.

As proof, Ovelmen points out that at least 20 other FAU professors regularly post their views on social media. None has been required to report their activity to school officials, much less been disciplined, he wrote.

FAU administrators targeted Tracy after news of his blog ignited a firestorm of protest with scores of letters and phone calls streaming into the Boca Raton-based school, demanding his ouster.

More…

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Federal Appeal Filed Challenging Florida Atlantic University’s Unconstitutional “Outside Activities” Policy

Miami, Florida – Attorneys for James Tracy filed an appeal to the U.S. Court of Appeals for the Eleventh Circuit of the summary judgment rulings granted by the District Court in favor of Florida Atlantic University (“FAU”) and various public university officials. Tracy’s lawyers also argue that the jury verdict should be reversed and the Court should grant judgment in Tracy’s favor as a matter of law.

James Tracy was a distinguished tenured faculty member in FAU’s School of Communications who taught journalism history, communication theory, and courses on the media’s coverage of conspiracy theories. Tracy received awards for his work, regularly earned excellent reviews, and was a former president of the FAU faculty union.

Despite Tracy’s outstanding academic record, FAU fired Tracy in retaliation for controversial posts he made on his personal blog questioning the legitimacy of the Sandy Hook Elementary School massacre. In January 2016, FAU terminated Tracy’s tenured professorship, falsely claiming he had been “insubordinate” for failing to disclose his blogging activity under its conflict of interest outside activity Policy.

On appeal, it is argued that summary judgment should have been granted in Tracy’s favor by the District Court, since the Policy FAU used to terminate his professorship is unconstitutionally vague “because blogging is not mentioned as a potential conflict of interest, key terms used within the Policy are undefined, and FAU does not have a policy on blogging.

Over twenty professors have blogs or other online speech activities, and Tracy is the only one to have ever been required to report, much less disciplined, for failing to report under the Policy. This is all the more compelling given that Tracy’s blog was publically available and well known to FAU, and his speech was widely reported and highly controversial.”

The record demonstrates FAU’s Policy violates the First Amendment “because it fails to provide employees with a reasonable opportunity to understand what blogging it prohibits and authorizes” and the Policy “did not provide sufficient guidance as to what blogging had to be reported, it could not be enforced without reference to the content of an employee’s speech, thereby facilitating viewpoint discrimination targeting disfavored speech. Indeed, FAU found Tracy’s posting violated the Policy despite having no policy at all on blogging while it fully protected expression that it favored.”

Additionally, Tracy’s lawyers argue that the jury verdict (that Tracy’s speech was not a motivating factor in his termination) is contrary to overwhelming evidence, and no reasonable jury could have determined that Tracy’s speech was not a motivating factor in his termination because:

  • Tracy’s blogging was obviously not a conflict of interest;
  • FAU’s reason for firing Tracy was legally insufficient;
  • FAU’s history of disciplining and monitoring Tracy’s blog;
  • FAU’s selective enforcement of a vague Policy;
  • Evidence of complaints and negative publicity;
  • FAU’s termination letter citing the blog; and
  • FAU emails celebrating Tracy’s termination.

Moreover, the District Court wrongfully excluded evidence that directly impacted Tracy’s ability to enforce his rights at trial.

The full brief is available here:

See also:

Legalizing Pretext: How an American Public University Conspired to Beat the First Amendment

The Death of Academic Freedom: Professor James Tracy Denied First Amendment Rights By Federal Court

TracyvFAU: A Very Dangerous Precedent

Through Jaundiced Eyes: Palm Beach Post, Sun-Sentinal’s Hardcore Bias in TracyvFAU Coverage

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The CIA and the Media: Historical Fact #76

Phillip and Katharine Graham, circa 1953

In 1988 Washington Post publisher Katharine Graham, the central character in Steven Spielberg’s 2017 film, The Post, declared to CIA staffers during a speech at the organization’s Langley Virginia headquarters that government agencies should employ the doctrine of prior restraint whenever they deem it necessary and appropriate.

We live in a dirty and dangerous world. There are some things the general public does not need to know. I believe democracy flourishes when the government can take legitimate steps to keep its secrets and when the press can decide whether to print what it knows.

Steven L. Vaughn, Encyclopedia of American Journalism, New York: Routledge, 2008, 201. Cited in Janney, Mary’s Mosaic, New York: Skyhorse Publishing, 2013, 269.

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