On November 10, 2015 Florida Governor Rick Scott visited Florida Atlantic University for an early morning meeting of his cabinet alongside political appointees comprising Florida Atlantic University’s Board of Trustees and their managerial candidate, FAU President John Kelly. The meeting was chronicled in official docs and via a fawning Palm Beach Postreport.
Perhaps ironically, it was also on November 10 that FAU administrators began disciplinary proceedings against tenured Professor James Tracy for operating this website.
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.
In 2016, former Florida Atlantic University (“FAU”) Professor James Tracy filed a civil rights lawsuit against FAU following the termination of his tenured employment. If one relies on mainstream press reports of his firing they may conclude the action was justified because of Tracy’s alleged “harassment” of Sandy Hook parents, and/or his failure to comply with the school’s “outside activities” policy.
Yet at its heart, Tracy’s case has grave implications for the First Amendment rights of virtually every US academic and government employee. Through their own repeated admissions FAU administrators justified Tracy’s termination by arguing that Tracy failed to “disclose” his constitutionally protected political speech for university approval under a vague and confusing school policy.
If this precedent stands unchallenged it will allow virtually any government agency to police employees’ extracurricular speech or political activities, and accordingly discipline workers whose views are deemed objectionable.
Notwithstanding the truth about Sandy Hook, or other government conspiracies, what if I told you that Professor Tracy didn’t do anything wrong?
What if I told you that government officials at FAU broke their own rules, and the First Amendment when they disciplined Professor Tracy?
For those who don’t care about freedom of speech, you need read no further.
For those who understand and appreciate the fact that FAU, a major American public university, isn’t the NFL, and that its government officials aren’t allowed to conspire to beat the First Amendment and fire a government employee because of what they say as a private citizen about a matter of public concern, please keep reading.
Professor James Tracy, who has a Ph.D. in mass communications, was an award-winning, tenured communications professor at a government-run university. He was a good teacher who received outstanding and excellent annual evaluations from his supervisors while teaching at FAU for over a decade.
University’s Policies and Actions Threaten Faculty Due Process and Free Speech Throughout the United States
““Tenure, free speech, due process and academic freedom are under attack. Without judicial intervention, employees and faculty at Florida Atlantic University and other universities around the United States, will continue to be censored, deterred or chilled from sharing unpopular information or opinions for fear that they will be disciplined on a pretext.”-Attorney Louis Leo IV
April 25, 2016, West Palm Beach, Florida – Former Florida Atlantic University (“FAU”) Professor James Tracy, who was fired from his tenured faculty position in January, has filed a civil rights suit against the University, several top school officials, and his faculty union representatives, alleging that the firing violated his First Amendment right to free speech and other constitutional rights, including his right to due process, in addition to the University’s long-standing principles of academic freedom.
Dr. James Tracy, filed the lawsuit Monday in a U.S. federal court in the Southern District of Florida, in Palm Beach County, represented by the Florida Civil Rights Coalition and Medgebow Law.