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.
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.
Attorney Louis Leo IV discusses James Tracy’s pending civil rights lawsuit against Florida Atlantic University with University of Minnesota Professor James Fetzer on GCN’s The Power Hour, Monday, April 23, 2018. Leo is the lead attorney representing Tracy in the federal civil rights lawsuit against the South Florida-based public university.
The two examine Tracy’s unlawful firing by Florida Atlantic University, the corrupt and fraudulent trial defense conducted by FAU’s corporate attorneys (who received significant aid from the US District Court for the Southern District of Florida), and the implications for public employees’ right of free speech and association in the wake of the decision. Leo and Fetzer also discuss the circumstances that led to Tracy’s termination by FAU officials, which followed a smear campaign by cyber trolls and major news media seeking to defend the Sandy Hook event’s official narrative.
One day after the interview was recorded, on April 24, US District Judge Robin L. Rosenberg issued a 31-page final order denying all post-trial motions, defending her October 31, 2017 summary judgement rulings in favor of FAU, and asserting that Plaintiff Tracy was provided with a fair trial in her courtroom. With the decisions the case now proceeds to the US 11th Circuit Court of Appeals.
James H. Fetzer: My guest for the second hour has distinguished himself by representing James Tracy, who is an Associate Professor of Communications and the Media at Florida Atlantic, who is seeking to protect the American people from an elaborate scam by investigating the aspects of Sandy Hook, in particular, Lenny Pozner’s claim to have a son, Noah, who died there.
James was a skeptic at the time, but he was exercising his diligence and responsibility on behalf of the public to ensure they weren’t take in by a scam which wound up looting the American people of somewhere between $27 and $130 million in donations in the false belief that there’d actually been a shooting massacre, and that these 20 children and six adults had died. Divided by the 26 families that were impersonating the survivors, they split and derived over a million bucks apiece.
I believe this is one of the reasons Lenny Pozner has been so ruthless in going after those of us that have been seeking to expose the truth. James Tracy turned out to be targeted, where Lenny published several articles in the South Florida newspapers, including the Jewish journal, Forward, the Sun-Sentinel and others. Tracy ended up losing his position over this. The university had a flimsy excuse, but none better to address the issues here than Louis Leo IV, who represented him. Louis has a website, peopleoverpolitics.org, and he has authored a brilliant overview of Tracy versus Florida Atlantic, titled, “Legalizing Pretext: How an American Public University Conspired to Beat the First Amendment.” Louis welcome to The Power Hour.
Louis Leo IV: Thanks for having me.
Fetzer: I’m just delighted. Perhaps you’d like to begin with a thumbnail overview of what happened here, and how this American university beat the First Amendment.
Leo: Well, I can tell you there are a lot of moving parts in this case, but we’re still waiting for the court to rule on post-trial motions, which include a Motion for Judgement as a Matter of Law, as well as a Motion for a New Trial. And, we’re still trying to figure out exactly what happened. I guess you can say it’s been a long and disturbing ride through the legal system in this case.
Fetzer: I was just going to add that I too am a colleague, a collaborator, with James Tracy, and I was the head of his legal defense fund, and I believe in this man one-hundred-percent. In fact, I can’t imagine a less likely target for an action like this than James Tracy. He is so principled. He is so measured. He is so thoughtful. He is so intelligent. And he was actually undertaking at act of what’s technically known as super arrogation—going beyond the call of duty in an effort to determine the facts of the matter, and protect the American public from fraud.
Fetzer: They wound up being subjected to a theft by deception, by misrepresenting what had happened there. Lenny Pozner, Neil Heslin and others have defrauded the American people of a vast sum, and have gone on this stupefying campaign for gun control that’s completely one-hundred-percent the opposite of the interests of the American people. Louis, go right ahead.
Leo: I should start by saying that the reason Dr. Tracy lost in this trial is because of deception and fraud in the court, and it’s something that the court sanctioned, using the rules of evidence. This is outlined in our motion that the court made the grave error in excluding from trial evidence that showed just how blatant and pretextual the use of this policy was to terminate a tenured professorship.
On December 11, 2017, in a serious miscarriage of justice, a jury in West Palm Beach, Florida, ruled unanimously in favor of Florida Atlantic University and against former Media Studies Professor James Tracy, who was suing for reinstatement after his firing in 2016. The jury found that Tracy’s “controversial” articles on Memory Hole Blog were not a “motivating factor” in his firing, the only question they were required to consider. Of course, Tracy’s posts at “his conspiracy theory blog” were indeed the reason he was fired, but the jury was convinced otherwise by FAU’s legal team with assistance from the judge. The case centered around Tracy’s writings on the anomalies found in the reporting on the Sandy Hook “massacre” of December 14, 2012. His skepticism about the event was not to the liking of the university.
James Tracy with his attorney Louis Leo IV arriving at federal court. Image: Palm Beach Post.
FAU maintained that Tracy was not fired from his tenured position because of his blog posts, but because he did not follow the “rules” set out by “his bosses” at the government-run institution. FAU attorney G. Joseph Curley insisted that Tracy was not denied his First Amendment rights, but that he simply did not follow university procedure. “Professor Tracy doesn’t follow the rules,” Curley told the jury. “They’re rules that everyone else follows. He doesn’t play by the rules.” FAU cast the case as one of a “belligerent,” rebellious,” and “nonconformist” employee being let go for “insubordination,” instead of that of a tenured professor exercising his right to free speech.
FAU attorney G. Joseph Curley: “I could not be happier for FAU.” Image: Palm Beach Post.
FAU’s current “rules” require that faculty submit forms listing “outside activities” to be vetted for administrative approval, whether the activities are compensated or not. Tracy and other professors at FAU had argued that the policy is vague and confusing, constituting a form of prior restraint forbidden by the First Amendment, and leading to a climate of “fear and uncertainty” among the faculty. Aside from the fact that “outside activities” can reach into all aspects of a professor’s life and therefore be difficult if not impossible to list, such activities must not be subject to bureaucratic approval. And certainly, no tenured professor can be fired for not filling out a form, even at Florida Atlantic University.