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.