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.”