Decision will likely embolden employers to actively police workers’ personal political views & social media activities
Jim Saunders News Service of Florida (November 17, 2020)
A federal appeals court has backed a decision by Florida Atlantic University to fire a professor who drew national attention for questioning whether the 2012 massacre at Sandy Hook Elementary School in Connecticut actually occurred.
A three-judge panel of the 11th U.S. Circuit Court of Appeals on Monday rejected James Tracy’s First Amendment arguments that he was fired in retaliation for views posted on a blog. The panel upheld a jury’s decision on the First Amendment issue and a district judge’s rulings against Tracy on other issues.
Ruling contradicts Court’s own observation in 2019 oral argument that FAU’s application of “outside employment/activities policy” was and remains capricious.
“To establish that he was discharged in retaliation for protected speech, plaintiff had to prove, among other things, that his speech played a ‘substantial part’ in the university’s decision to terminate him,” said the 26-page opinion, written by appeals-court Judge Julie Carnes and joined by Senior Judges Stanley Marcus and Paul Kelly. “The jury found that plaintiff had failed to do so, as it found that plaintiff’s blog speech was not a motivating factor in the university’s decision. We conclude that there was more than sufficient evidence to support the jury’s verdict.”
Tracy was a tenured faculty member in FAU’s School of Communication and Multimedia Studies and had a blog that explored conspiracy theories and criticized the media, according to the appeals court. He drew attention for questioning whether the Sandy Hook massacre — in which a gunman killed 20 children and six adults — had occurred.
The firing came after a protracted dispute between Tracy and the university about a request that he report his outside activities. The appeals court said such reporting was required under a collective bargaining agreement.
In addition to raising the First Amendment arguments about retaliation, Tracy also argued that the reporting policy was vague and overbroad and that the university had breached the collective bargaining agreement by firing him, according to Monday’s opinion.
The appeals court said the reporting policy was designed to identify potential conflicts of interest. It said Tracy had not shown that the university had prohibited any professor from engaging in speech.
The opinion said Tracy argued that “no reasonable juror could have found that his blog speech did not motivate the university to fire him,” but it concluded that he “cherry-picks” the evidence and that he was fired for insubordination related to not filing reports about his outside activities.
“Given the university’s multiple warnings that plaintiff was required to file outside-activity reports and plaintiff’s repeated refusal to do so, there is little doubt that plaintiff was insubordinate,” Carnes wrote. “Indeed, plaintiff privately confessed to his union president that his conduct was ‘cut-and-dry’ insubordination and that he had not complied with university directives because he believed his tenure status would insulate him against any discipline.”
On September 4, 2015 FAU constitutional law professors protested the university’s arbitrary use of an “Outside Employment/Activities Policy” to suppress faculty members’ off-campus speech. Professors expressed their grievance to FAU President John Kelly and other top administrators at a rancorous faculty senate meeting.
Three months later FAU used the same policy as a pretext to terminate Professor James Tracy for his controversial political blog. On September 19, 2019, the FAU policy was scrutinized before the 11th Circuit Court of Appeals in oral argument.
On December 11, 2017 the jury in the TracyvFAU 10-day trial returned a verdict in favor of defendant Florida Atlantic University. The federal case involved the work of over 12 attorneys and close to 500 separate legal briefs. Yet the decision’s implications for the First Amendment and free speech can be summarized in five minutes.
Trial attorney Matthew Benzion discusses Florida Atlantic University’s unlawful use of an “Outside Employment/Activities Policy” to fire Professor James Tracy and restrict faculty and staff speech before-the-fact–a policy that is now effectively part of federal law and can be arbitrarily used to police and reprimand any public employee’s personal activities and online speech.
In this forthcoming series of interview vignettes Attorneys Louis Leo IV and Matthew Benzion, alongside James Tracy and others, discuss Tracy’s 2016 case against Florida Atlantic University, the 10-day trial and misleading “fake news” media circus that surrounded the event, and the unfolding implications for free speech in higher education and broader social discourse.
On September 4, 2015 FAU constitutional law professors protested the university’s arbitrary use of an “Outside Employment/Activities Policy” to suppress faculty members’ off-campus speech. Professors expressed their grievance to FAU President John Kelly and other top administrators at a rancorous faculty senate meeting. Three months later FAU used the same policy as a pretext to terminate Professor James Tracy for his controversial political blog. On September 19, 2019, the FAU policy was scrutinized before the 11th Circuit Court of Appeals in oral argument .
On December 11, 2017 the jury in the TracyvFAU 10-day trial returned a verdict in favor of defendant Florida Atlantic University. The federal case involved the work of over 12 attorneys and close to 500 separate legal briefs. Yet the decision’s implications for the First Amendment and free speech can be summarized in five minutes.
Trial attorney Matthew Benzion discusses Florida Atlantic University’s unlawful use of an “Outside Employment/Activities Policy” to fire Professor James Tracy and restrict faculty and staff speech before-the-fact–a policy that is now effectively part of federal law and can be arbitrarily used to police and reprimand any public employee’s personal activities and online speech.
In 2018 veteran North Miami police officer Ericson Harrell questioned the school shooting in Parkland Florida and subsequently became the target of a smear campaign led by the South Florida Sun-Sentinel. Because of this defamatory campaign his employer opened an official investigation that eventually led to his resignation after 20 years of service.
Attorney Matthew Benzion, co-counsel in Professor James Tracy’s First Amendment lawsuit against Florida Atlantic University, discusses the behind-the-scenes and unreported legal elements of TracyvFAU transpiring in the lead-up to the 2017 trial.
In this excerpt Louis Leo discusses the free speech implications of the lower federal court’s decisions in TracyvFAU.
On September 4, 2015 over one hundred Florida Atlantic University professors gathered to discuss a proposed post-tenure review policy poised for adaptation by FAU administrators that had almost no faculty input.
In the lead-up to this discussion two constitutional law professors protested the fact that FAU administrators were using FAU’s vague and deceptive “Outside Activities/Employment Policy” (OAP) against a junior faculty member in their department who had written a guest editorial in the local newspaper that some administrators disagreed with. The professors alongside other faculty argued that the policy could be arbitrarily used against virtually any FAU faculty member for exercising their right to free speech.
This very policy was then utilized by FAU officials three months later to terminate Associate Professor James Tracy for writings on his personal blog. When Tracy filed a civil rights lawsuit against FAU and specific administrators, the defendants contended that Tracy was fired for insubordination by not complying with a policy–a policy that in fact administrators and faculty to this day cannot understand, and thus cannot comply with.
In the exchange below proceeded in full view of FAU President John Kelly and Provost Gary Perry, Faculty Senate President Chris Beetle sought to curtail debate on FAU’s OAP, and refused to allow the matter to be referred to the Senate’s Academic Freedom and Due Process Committee for further consideration or recommendations.
Following TracyvFAU discovery and after summary judgement favoring FAU that gutted the case of its vital civil rights dimensions, the federal court refused to allow the jury to have any knowledge of the September 2015 Faculty Senate meeting, arguing that it would be “unduly prejudicial” to Defendant FAU.
Now an established matter of law based on the TracyvFAU decision, Florida colleges and university administrators may use the OAP as a cudgel to police faculty and staff off-campus speech. As such many employees intimidated by the policy’s wanton enforcement continue to express confusion and dismay on how they may comply with and avoid similar disciplinary measures.
The constitutionality of the OAP contested by FAU faculty four years ago will be subject to review by the Eleventh Circuit Court of Appeals later this month, on September 19, 2019.
CHRIS BEETLE, Professor, Physics, Faculty Senate President
TIM LENZ, Professor, Political Science, Senator
MARSHAL DE ROSA, Professor, Political Science, Senator
RON NYHAN, Associate Professor of Public Administration, Senator, Former Faculty Senate President
GARY PERRY, University Provost, Non-voting Senate member
ROBERT RABIL, Associate Professor, Political Science FRED HOFFMAN, Professor, Mathematics, Senator
JENNIFER LOW, Professor, English,
BILL BOSSHARDT, Associate Professor, Business, Senator
MS. DIANE ALPERIN, Associate Provost, Non-voting Senate member
THEREUPON:
MR. BEETLE: Okay. This brings us down to the business items, and there are two. The first is that as many of you may know community engagement is a key part of the strategic plan for the university. And as faculty, it behooves us to involve ourselves as much as possible in figure be out what our community engagement at this university is going to look like in the future.
For that reason, I am going to form an adhoc committee to examine this question — committee of faculty, one person representative from each college. You’ve seen the charge. It’s attached to the agenda here today, and the members of this committee will be invited to certain on the President’s Task Force which is chaired by some guy called Ron Nyhan.
And so, anybody who is serving on this committee will be invited also to play a role in that other committee, but this will be a senate committee. The membership of this committee is opens to senators, of course, but also to all faculty in the university, and we will be taking nominations.
You can email them to Arcadia and we will be hoping to form that committee at the next senate meeting.
MR. LENZ: Would you take questions on this?
MR. BEETLE: I will take questions about this.
MR. LENZ: In the spirit of providing the administration with advice about this initiative I’d like to say one thing, and that is please call off your dogs until you get your act together when it comes to community engagement.
And by calling off the dogs I mean the administration has been sending faculty members who are engaged in outside activity, nasty letters, letters of discipline or letters that threaten faculty members who are engaged in outside activity with discipline.
“[B]y calling off the dogs I mean the administration has been sending faculty members who are engaged in outside activity, nasty letters, letters of discipline or letters that threaten faculty members who are engaged in outside activity with discipline.”
And this should stop until the administration gets its act together. And by getting its act together I mean this initiative says that we’re supposed to increase outside activity, increase faculty engagement with the community. We support this. But the very actions that I’ve been describing are discouraging this activity. There’s a lot of fear and uncertainty.
And if you read the language in our collective bargaining agreement about outside activity it says that like the collective bargaining at other universities in the state that we have to report all professional related activity paid or unpaid if it’s not part of our assignments. No one knows what that means. The deans don’t know what this means. Faculty supervisors don’t know what this means.
And until there’s some clarity about what outside activity has to be reported I would recommend, as a good piece of advice, that any new faculty member who asks their supervisor or their peer about what kind ever outside activity they would engage in I would say do nothing because any outside activity exposes you to risk. And that risk includes discipline up to dismissal from the university.
This is serious, and no one knows what outside activity the university is targeting. There has been a change in the language in the collective bargaining agreement. And I understand where this comes are from.
The president is right to try to get more control of the university. The previous administration had to deal with some scandals. And this effort to gain control of faculty makes some sense, but the way this is being done is creating major problems.
For you to come to us asking for more faculty engagement in outside activity while some other arm of the university is sending these nasty letters, that’s a problem.
And it’s a problem that eventually will probably have to be addressed with the Freedom of Information Act request because there’s a great deal of suspicion that you can say or write or do something, but if you say, write or do something that the administration disagrees with you are going to get one of these nasty letters put in your personnel file.
And that’s — , and it’s not what we want. We want to encourage this activity. This is serious. It’s an extremely important part of the university’s future, growth and development. But you’re doing things which are frustrating.
MR. BEETLE: So, let me respond to some of the points you’ve made. So, at least one of the specific instances that you’re talking about I became aware of this Tuesday, and since to then I have been doing a bit of leg work. I’ve had lengthy conversations both with Peter Hall, the VP for public affairs, and with Provost Perry about this very issue, and I agree that there are some things to be clarified.
If the terms of the collective bargaining agreement are to be changed that, of course, is something to be bargained, and that should run through the Union, and we should have a conversation about that.
I came away from the meetings that I’ve had less concerned than I was at the beginning. And I understand that Peter Hall has reached out to the person that I heard from on Tuesday and that there is an attempt to resolve the situation.
One of the things that all of us as faculty should be aware of — I put it this way to Peter. FAU, since I have been here certainly, has been the epitome of a do it yourself university. Grab that paintbrush and do it, right?
And in this instance there was an event coming up that a faculty member had organized and in fact had secured external funding to help support, which is exemplary of what faculty should be doing at this university and should definitely be encouraged.
However, it needed to be advertised. And so, in an effort to do that the faculty member had not gone through the Public affairs Office and the Media Relations Department. What I want to tell — the message that I want to get out to faculty generally is that the Media Relations Department has a renewed vigor and an eagerness to assist with exactly that sort of problem.
And we, as faculty, need to recognize first of all that those resources are there for us to use, and second of all that we have a responsibility to take advantage of them because we don’t want to have every department at the university or even every individual faculty member running their own media relations operation.
We have to proceed strategically on many, many fronts. And I think it behooves us as faculty to approach this administrative wing first rather than after the fact. And so, this is one of the things that I came away with.
The other thing, I still have some questions to ask and some conversations to have. And so, I don’t know if we should talk further about that because I still need to find the facts about — in order to just have my own opinion and you’re asking me the question.
MR. LENZ: This is far — this problem is far broader that’s just who gets to speak for the university, speak to the press. It’s for example, if a faculty member publishes a book and wants to get a talk at the Boca Raton Library do they have to go to this vice-president to get permission to do that? These are the kinds of questions that have to be addressed —
MR. BEETLE: Right.
MR. LENZ: — because no supervisor can tell their faculty member that they can do that without getting permission. And if someone says something in a public address that the media covers and the university acts strongly [against] that they’re going to be exposed to discipline.
MR. BEETLE: So, Senator, I share your opinions about this, and I want the faculty — I think that there should be the ability to take initiative in these efforts that we’re going to have. I’m still trying to figure out exactly what the policy is at the moment, and I’m not sure that I understand. So, we can have a conversation about that when the time comes.
I would also suggest that this might be the very type of issue that is going to come up in the community engagement committee that we’re trying to put together. We need to have an approach to this problem that is going to work for the faculty because the faculty will be the face that’s engaging with the community in many events. Ron, did you have a comment that you wanted to add?
MR. NYHAN: No. On the, again, I don’t know about the particular issues, all of the issues that have been raised, but the intent of the community engagement initiative is one that I think that could benefit the faculty a great deal.
And to the extent that there are misunderstandings if there are or adjustments that need to be made I think the purpose is to move forward can every opportunity for the faculty to have to render engagement in the community, and also to communicate that.
So, perhaps to the extent that our issues are to be raised, and obviously you’re raising some here today, that’s why the Senate should have a committee doing this not only separate from but also incorporated into the large university one.
So, I thank you for bringing up the issues, and hopefully more people who have real concern in this area, as well as want to expand it, will be a part of the committee.
MR. LENZ: We need a moratorium on sending these letters threatening discipline for faculty members who are engaging in legitimate outside activity until this occurs.
“We need a moratorium on sending these letters threatening discipline for faculty members who are engaging in legitimate outside activity until this occurs.”
MR. BEETLE: Chris? I want to — I think that — so, I’m going to take a comment from Provost Perry because I think it’s germane to what’s been said before —
MR. DE ROSA: Well, this is germane too. Let’s hear it.
MR. BEETLE: — and then I’m going to call on you.
MR. DE ROSA: Okay.
MR. BEETLE: Provost?
PROVOST PERRY: Okay. Thank you, Mr. President. And let me applaud you a second there, by the way. I would just like to say we — all of us, want to encourage public comment by our faculty. You are experts in your field, that’s why you are employed here at Florida Atlantic University.
But when you make such a public comment all we ask is that you follow what is laid out in the collective bargaining agreement. And I’ll read you the section that is pertinent to this. It’s article 5.3, Section D. This had been a part of the BOT/UFF Connective Bargaining Agreement for many years.
When speaking on any matter of public interest the faculty member shall make clear when comments represent personal opinions and when they represent official university opinions. That’s a simple statement. Thank you. And all we ask, all of us at the university, not just the administration — of events that we abide by the rules of our own collectively bargained agreement.
MR. BEETLE: Senator De Rosa?
MR. DE ROSA: I’ve chaired the academic freedom of due process committee, I guess at least going on a third year, and this is a very serious matter.
I have a couple questions. One of which is by what authority is the vice-president of the public affairs writing letters to faculty members?
I also have a concern that the collective bargaining agreement — and I agree with the programs, absolutely. If you’ve issued a disclaimer that you’ve not speaking on behalf of the university, I mean, that’s almost a no-brainer, but we have to get prior approval.
I would consider this a form of prior restraint of academic freedom for academics to engage in community without getting the permission note from the administration.
I have a colleague that was taken into the wood shed because he wrote an op-ed latter to the local newspaper. This is highly inappropriate. I don’t think we need a committee for community engage when it comes to academic freedom. And to be quite frank, I don’t care what the collective bargaining agreement is. We have certain rights as academics to engage in the community, to speak our minds, to engage and participate in the marketplace of ideas.
And I agree with Tim. We need to have a cease and desist order from this vice-president, who is not an academic, to stop writing letters to professors. I don’t want to have to get a permission note before I write something on the internet or go to a meeting some place that’s unrelated to the university. This is absurd; it’s insane. And secondly and thirdly, the scandal that Tim referred to, that’s not a scandal from faculty members; that was a scandal of the administration, the previous at ministration and how they handled it.
“I don’t want to have to get a permission note before I write something on the internet or go to a meeting some place that’s unrelated to the university. This is absurd; it’s insane.”
MR. BEETLE: So, let me —
MR. DE ROSA: Would somebody please explain to me, perhaps the president could, why this vice-president is writing letters to academics to professors and more or less chastising them for engaging in their 1st Amendment Rights?
MR. BEETLE: So, I can say that I don’t believe that the VP was actually the person that wrote that letter. I have not seen the letter at this point, but he seems to be surprised that there had been some further discussion. So, again, I agree with a lot of what you said.
MR. DE ROSA: What don’t you agree with?
MR. BEETLE: I do think that it’s important to have a robust academic environment here where academic freedom can be exercised. I think that there is a conversation to be had about this issue of what needs to be reported and what does not.
MR. DE ROSA: But what —
MR. BEETLE: And we certainly must not end up with a —
MR. DE ROSA: — what needs to be reported?
MR. BEETLE: Excuse me.
MR. DE ROSA: It throws —
MR. BEETLE: We certainly must not end up with a situation where the content of what a faculty member says ends up being the deciding factor in whether action is taken, right?
So, I think that particularly as we push forward on this initiative, which is essential to the university’s strategic vision for where we want to go, that we need to think very seriously about these issues. And I think that the situation that all of us are talking bleakly about is an example that we should keep in mind as we have these conversations.
But I think that we need to have these conversations civilly and to try to come to some sort of shared vision of how this process is going to work at FAU. And that is what we need to focus on going forward, I think.
MR. DE ROSA: But see, there’s the problem.
MR. BEETLE: So, —
MR. DE ROSA: We’re going some place, and where that place is seems to be a departure from academic freedom. If there’s academic freedom and a professor or an academic makes the —
MR. BEETLE: So, —
MR. DE ROSA: — disclaimer I am not speaking on behalf of my employer —
MR. BEETLE: What I’ve just said was that we need to have a conversation about how this scenario would play out in the future, right? And how and what role academic freedom has played in this and to what extent academic freedom may or may not have been comprised in this scenario, and how the process should work in the future to minimize any adverse impact —
MR. DE ROSA: Well, it’s —
MR. BEETLE: — on academic freedom.
MR. DE ROSA: Sir, would you —
MR. BEETLE: So, I’m going to ask to —
MR. DE ROSA: — to the committee?
MR. BEETLE: — table any further discussion or questions about this because it is premature, because I don’t know enough about the specifics of this instance. And I welcome any of you to talk to me privately about this. I don’t know if we can go future playing this oblique game —
MR. DE ROSA: This is the faculty senate, Chris. This is where we have these discussions. There’s not to be private about. It impacts the faculty. The senators represent the faculty.
MR. BEETLE: But at the moment it is not a fact that is before this senate what the impact has been. So, this is not a conversation that we can have properly at the moment.
MR. DE ROSA: I don’t understand what not. That’s why we’re here. This is a discussion forum.
MR. RABIL: Can I say something, please?
MR. BEETLE: Yes, you may.
MR. RABIL: Can I say something? Thank you. Well, I work where the media a lot and I’m asked from Iran, China, Saudi Arabia and everybody to comment. But what I can tell you is this, I will never say anything that goes against the interests of the university. And I make that sure when I go over any TV or I write or go over including U.S. Government meetings, and I go to them on a frequent basis. But this is — it’s okay with me.
But what you are saying here, and this is where it does not sit well with me — and I felt kind of disappointed, really when I received an email, and this is what the email said and it’s extremely important to know that FAU has requirements including but not limited to receiving permission from the Office of University of Communication and the Office of the Provost prior to speaking to the media including student media every single time you engage in such activity. So, what you are saying, already you have movement in the direction to curb us from talking to the media. And here I am someone that I consider myself extremely loyal and I love FAU, and I have FAU my home. So, this is where it is really conflicting to us.
MR. BEETLE: And okay. So, I am not aware of this email. And I think that this is an issue where we need to have a conversation about how this is supposed to work at this university. I don’t know that this is the place for it because we have not had an opportunity as a group to look at the facts around this situation. So, what I am asking is that we approach this at a later meeting.
MS. LOW: Would it be appropriate to send it to the academic freedom —
MR. BEETLE: I don’t think that that is warranted at this time. The academic freedom and due process committee should — there is nothing to send to them at the moment —
MR. HOFFMAN: Of course there is.
MR. BEETLE: — as far as —
MS. LOW: Okay.
MR. BEETLE: No, there’s not.
MR. HOFFMAN: Of course there is.
MR. BEETLE: There is not, Fred. All right. I see four more hands that are up. Bill?
MR. BOSSHARDT: But I assume, Chris, that in your deliberations over the next week or two that if you do find some cause that you would refer it to the committee?
MR. BEETLE: Yes, I would.
MR. BOSSHARDT: Okay.
MS. LOW: So, do we put this on the agenda for next meeting?
MR. BEETLE: I do not know what’s going to be on the agenda for next time about this.
MS. LOW: Now, the request has been made that until it’s settled, what the policy is, that we should not be — a request has been made that until the policy is settled that no more threatening letters should be sent.
“[A] request has been made that until the policy is settled that no more threatening letters should be sent.”
I don’t know where they originate from, and certainly it seems as if it’s not always clear, but I think it does seem like a reasonable request, so I think that it can be forwarded and hopefully addressed because it’s impossible. It seems as if the letters aren’t an indication that a policy has been made without our input then a policy is being enacted without being fully vetted.
MR. BEETLE: Thank you.
UNIDENTIFIED MALE: The problem is very simple. Hypocrisy and freedom of expression are incompatible, okay? Thank you.
MR. BEETLE: Fred, and then we will —
MR. HOFFMAN: Yeah. I think — that shutoff. Is that working? Okay. Yeah. Just the point here, Tim said — raised the question does a person wanting to speak at the public library to discuss his book possibly even to sell copies of it, does he need permission from the Office of Public Affairs before making such a speech.
We know that he has to say any opinions that I express here do not represent the university. If he doesn’t do that he’s in trouble, and he should be in trouble. But does he have to get permission?
Tim asked the question; Robert gave an example of where he was told he needed to ask permission before giving a talk or suggested that by — it was suggested by the nature of that correspondence. Can we know from — we’ve got top administrators here. Can we know the answer to that question and why is it not appropriate for that question if there is a conflict on it to be referred now to academic freedom and due process?
That’s how I understood what academic freedom and due process was supposed to do.
MR. BEETLE: Okay. Does anybody want to comment on that?
PROVOST PERRY: As Provost I would just restate what I said earlier. We welcome our faculty to make public comments and to give the appropriate attributions as necessary as stated, very simply, in the collective bargaining agreement.
I will just call out and say Robert, I’d love to see that email because I can assure you no such policy has been issued from the Office of Academic Affairs.
MR. BEETLE: I will also add that one the of things that I’ve done this week is to look at the form that needs to be filled out, and it’s a little bit — it’s confusing about whether it applies in this hypothetical scenario that you’re talking about. I understand that there is a revision to that form because of new Federal Laws surrounding grants and conflicts of interest and so forth. So, the form is currently being revised, and I hope we will see a draft of that form soon so that it becomes clear, you know, how it would work in that scenario.
MS. ALPERIN: Are you talking about the outside employment forms?
MR. BEETLE: I am.
MS. ALPERIN: Yeah. We are — we’ll definitely give you a draft. We’ve been trying to get it changed to that for about two years. We’re still working on it, but I agree with you there needs to be clarity in that form as to what we need —
“Are you talking about the outside employment forms? … We’re still working on it, but I agree with you there needs to be clarity in that form as to what we need”
MR. BEETLE: Right.
MS. ALPERIN: — for their — their needs to be, especially from the division of research, clarity of — there’s conflicts that all we’re trying to — I think it’s rare that we took that amount of time.
MR. BEETLE: Okay. So, I am very pleased to see how passionate everybody is about this issue. This is a very good sign for the university. So, let us go on to our — to the second business item here which is the draft of the sustained performance evaluation policy.
(Thereupon, the requested portion of the meeting was concluded.)
West Palm Beach—The Florida Civil Rights Coalition, P.L.L.C. has initiated civil actions on behalf of former Florida Atlantic University (“FAU”) Professor James Tracy against four FAU law enforcement officers for illegally accessing Tracy’s driver’s license information in 2015 and 2016.
The lawsuits allege that FAU’s current and former law enforcement personnel, Rickey Leon Bethel Jr. [Case No. 9:19-cv-81189], Tracy Clark Haynie [Case No. 9:19-cv-81190], Amy Grande [Case No. 9:19-cv- 81191] and Gia Shaw [Case No. 9:19-cv-81193] violated the Drivers License Privacy Protection Act (“DPPA”), a federal law with criminal and civil penalties against individuals who obtain, disclose or use drivers’ license information without an authorized purpose or consent.
Public records show Bethel, Haynie, Grande and Shaw accessed Tracy’s confidential personal information using the Florida Department of Highway Safety and Motor Vehicles’ Driver and Vehicle Information Database, also known as “DAVID.” The inquiries began the morning of December 17, 2015, less than two days after FAU officials announced termination proceedings against the tenured communications professor. The records reveal Bethel, Haynie, Grande and Shaw combined for twenty six (26) unlawful DAVID inquiries to obtain Tracy’s confidential personal information.
Record of searches on Florida Highway Safety and Motor Vehicles “DAVID” database conducted by FAU Policefor then-FAU Professor James Tracy.
The four lawsuits demand jury trials and request liquidated damages under the DPPA, compensatory and punitive damages, attorneys’ fees, court costs and injunctions against Bethel, Haynie, Grande and Shaw and anyone acting in concert with them.
Dr. Tracy was hired by FAU as a tenure-track faculty member in 2002 and awarded tenure in 2008. Following Tracy’s unlawful termination in 2016, the Florida Civil Rights Coalition filed a civil rights lawsuit [Case No. 9:16-cv-80655] on Tracy’s behalf against FAU and various officials who conspired to terminate Tracy in retaliation for his constitutionally protected speech. After a federal jury returned a verdict favoring FAU in 2017, Tracy appealed. The case [Case No. 18-10173] is presently scheduled for oral argument before the United States Court of Appeals for the Eleventh Circuit in Atlanta, Georgia on September 19, 2019.
Inquires may be directed to info (at) floridacivilrights.org.
In 2016 James Tracy and the Florida Civil Rights Coalition (FCRC) filed a federal lawsuit against Florida Atlantic University (FAU) for its unlawful termination of Tracy’s tenured professorship of 14 years.
Professor James Tracy Florida Atlantic University 2015 Faculty Profile. Source: WebArchive
The essence of the case revolves around the fact that FAU trustees and administrators disapproved of Tracy’s political views, expressed on his personal blog. They therefore utilized an unconstitutional prior restraint (“Outside Employment Policy”) barring Professor Tracy’s right to free speech as the basis for his dismissal. Moreover, to this day these very officials continue to use the same policy to limit university faculty and employee expression.
In 2017 a hostile court dismissed most of TracyvFAU’s First Amendment claims, ruling in favor of FAU and its administrators, and barring crucial evidence in advance of the case ever going to a jury.
Anticipating such a setback, the FCRC successfully engaged a prominent national law firm which, recognizing the case’s significance, brought the lower court ruling before the Eleventh Circuit Court of Appeals.
An excerpt from #TracyvFAU appeal brief, filed yesterday in the U.S. Court of Appeals for the 11th Circuit.
This is what an unconstitutional #PriorRestraint at a public university looks like.
In June 2019 the Eleventh Circuit’s panel of judges granted the case oral argument. Such a hearing is less-than-common at the federal appellate level. TracyvFAU is scheduled to be heard the morning of September 19, 2019 at the Elbert P. Tuttle US Court of Appeals Building in Atlanta Georgia. We are uncertain of the judicial outcome, but are grateful that the case is under review at this momentous level.
The James Tracy Legal Defense Fund wants to thank all of you for your moral and/or monetary support along the way. Because we have taken on a state agency with unlimited resources, there is no way we could have endured this fight for over three long years without you.
Some Reflections on the Long Lost Chum I Barely Know
By James F. Tracy
I recently noted that an unknown party was linking somewhat inflammatory and misleading articles focusing on this author to my Facebook profile. After doing some modest investigation I came to find that the individual behind the posts was none other than Michael Koretzky, the self-appointed press advisor to FAU’s student newspaper, University Press (UP).
This was not the first time Mr. Koretzky’s blog posts came to our attention. In 2015 a colleague remarked that Koretzky was attacking me on his various social media sites, sometimes camouflaging the diatribes under various nom de plumes. After being the focus of so many broadsides by major media outlets, however, I dismissed the commentaries out-of-hand as likely ill-informed, amateurish, perhaps even dishonest. Only time would prove me correct.
The Press Advisor Who Came to Dinner
A fitting narrative to describe Koretzky’s two-decade long affair with FAU is Moss Hart and George S. Kaufman’s 1939 Broadway play, The Man Who Came to Dinner. The story centers on an obnoxious showbiz personality invited to sup with a prominent midwestern family as a publicity stunt.
Upon his arrival he injures himself on the family’s icy front steps and insists on taking up residence in both their both home and lives to recuperate. As the story goes, the radio host never leaves, soon threatening the family with litigation for his fall, or should they dare seek an outright eviction.
Promotional poster, 1942 film adaptation of The Man Who Came to Dinner
For two decades Koretzky has been the self-appointed press advisor to FAU’s UP, run out of Florida Atlantic’s student union and funded by student government fees. A self-proclaimed proponent of the First Amendment and press freedom, Koretzky worked as a freelancer, founded a handful of publications, and presently operates a personal finance website, Debt.com. In 2004 Koretzky was accused by FAU’s student government of ethical violations stemming from his involvement with the UP, and fined several thousand dollars.
Undeterred, he returned to the student paper shortly thereafter. An active member of the Society of Professional Journalists, Koretzky, 53, has become an undeniable presence in the national student press community, further honing his persona as news industry businessman masquerading in Che Guevara chic among student journalists.
From this perch he descends upon various college press conventions to fire off self-deprecating one liners while levying savage critiques of fledgling journalists and their newspapers, a practice comparable to shooting half-dead fish in a barrel.
Author and broadcaster Donald Jeffries talks with attorney Louis Leo IV and Professor James Tracy about the TracyvFAU federal lawsuit, presently on appeal. Tracy was fired by Florida Atlantic University in 2016 for his controversial public views and writings on topics including the 2012 Sandy Hook shooting and the 2013 Boston Marathon bombing events.
The interview was recorded and broadcast on Truth Frequency Radio February 15, 2019.
Editor’s Note: Andrew Carrington Hitchcock discusses Professor James Tracy’s 2015 termination from Florida Atlantic University and the TracyvFAU lawsuit with Tracy and trial lawyer Louis Leo IV in two separate interviews, available via the links below.
Carrington Hitchcock is a UK-based historian and host of The Andrew Carrington Hitchcock Show. Leo is the lead attorney in the 2016 civil rights lawsuit against the university presently before the Eleventh Circuit Court of Appeals.
Historian, broadcaster and Pastor Andrew Carrington Hitchcock
AndrewCarringtonHitchcock.com
(January 12, 2019)
In today’s show originally broadcast on January 12 2019, EuroFolkRadio’s Andrew Carrington Hitchcock interviews Dr. James F. Tracy, for a show entitled, “What Happened To James Tracy Could Happen To You…”
Independent Media Solidarity presents the second preview of our new feature-length film, The Conspiracy Theorist: What Happened to James Tracy Could Happen to You. Nationally recognized school safety expert Wolfgang Halbig gives one of his best interviews for the project. This preview features great clips from that interview.
Tracy was a distinguished tenured faculty member in Florida Atlantic University’s School of Communications and Multimedia Studies, where he researched and taught courses in journalism history, communication theory, and the media’s coverage of conspiracy theories.
Kevin Barrett and James Tracy discuss free speech, academic freedom and the TracyvFAU case that is presently before the US Eleventh Circuit Court of Appeals. This program originally aired on August 10, 2018.
James Tracy: In Solidarity with Alex Jones: US News Media Targeted Professor for Questioning Sandy Hook While Failing To Do Theirs – Fake News Indeed
Mr. President,
I am a former Associate Professor of Journalism and Media Studies at Florida Atlantic University (FAU). In early 2013, I became the target of a smear campaign led by prominent news media after I questioned coverage of the 14 December 2012 Sandy Hook massacre. The media called on FAU to fire me because of my concerns. I therefore appreciate your clear condemnation of the Mainstream Media (MSM) for “fake news” where those posing as journalists spread falsehoods and propaganda.
As a student of news narratives for nearly two decades, I observed several contradictions and anomalies in the media’s presentation of the Sandy Hook event. Following the shooting, for example, emergency response protocols were abandoned and first responders were refused entry to school grounds. Authorities apprehended an alleged gunman but placed him in the front seatof a police car.
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.
An excerpt from #TracyvFAU appeal brief, filed yesterday in the U.S. Court of Appeals for the 11th Circuit.
This is what an unconstitutional #PriorRestraint at a public university looks like.
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.
