Sandy Hook, Part 4: James Tracy’s Firing; the Fix Was In

by Mary W Maxwell, LLB

This is the opening of the Appeal Court’s ruling, as written by Judge Julie Carnes:

“Following the December 14, 2012 Sandy Hook Elementary School shooting in Newtown, Connecticut, where twenty children and six adults lost their lives, Plaintiff James Tracy attracted national news media attention for publicly questioning whether the massacre had in fact occurred. At the time, Plaintiff held a tenured position in the School of Communication and Multimedia Studies at Florida Atlantic University and maintained a personal online blog, called the “Memory Hole Blog,” where he criticized the media and explored conspiracy theories.”

James Tracy, born 1965, father of four, was fired from his teaching job in January 2016 and fought it at the District Court, in April 2016. That court ruled in favor of the employer, in December 2017. Tracy appealed to the Eleventh Circuit Court which is based in Atlanta, Georgia in 2018. He lost in 2020.

Let me begin with a quote that appeared in his original pleadings. It is from Justice Brennan in Texas v Johnson in 1989:

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

That’s still current, of course. In a 2011 case, Snyder v Phelps, Chief Justice Roberts, used Brennan’s words. Roberts said that the First Amendment right prevails even when deeply hurtful hate speech is used, such as walking past a soldier’s funeral with picket signs that say “Thank God for Dead Soldiers,” or “God Hates Fags.”

Perhaps you read about Professor Tracy losing his position — a tenured one — at a public university in Florida. Two thoughts may have passed through your mind: Firstly, that tenured jobs are tenured — as in, you can’t get fired, per the principle of academic freedom.

Secondly, that it is firmly established in law that you can criticize government in print — as noted by Brennan and Roberts above. Americans are dedicated to their First Amendment, and rightly so, since so much hangs from it.

You definitely are free to say “Sandy Hook was a government operation aimed at gun control” — or aimed at getting people to travel to Outer Space, or whatever. A few exceptions are well-known: you are not free to yell “Fire” in a crowded theatre; and if you insult a private person rather than Uncle Sam, she may sue you for slander. But you can say “God hates fags.” (Probably another First amendment right would be invoked there — your freedom of religion to assume you know what’s on God’s mind.)

I myself have “tried it out” — I’ve said that I think the Boston Marathon bombing was done by the FBI, and I do not expect to be punished. In fact, I marched into federal district court and filed a RICO case against several entities including the FBI. I lost on a technicality, wouldn’t you know.

(Like I was going to win?)

Some of the Legal Concepts in Tracy’s Case

I have spent hours perusing the Tracy court transcripts.  It is tedious beyond belief, and I won’t put you through it.  (Go read it at tracylegaldefense.org if you are a masochist, or if you want to do a PhD on it — actually that would be helpful, please. Just be sure to check your brakes often if you decide to get involved.)

It will help to survey a few of the relevant principles in this case. Note that it is not a case against Tracy for speaking out. (He would win.) It is a case by Tracy against the employer for sacking him. I’ll just list some of the issues related to the pleadings and the rulings:

Jurisdiction: This plaintiff has the right to go to US District Court as he wants to use a federal law, one known as “1983.”  It is an astonishing law that promises every citizen that they can ask for federal help if a private party, or a state government entity, steps on their constitutional toes. Example: someone installs a surveillance system in your bedroom (contra Fourth Amendment). Or someone fires you for doing conspiracy theory, as in Tracy’s case.

Collective Bargaining Agreement (CBA): If you sign an agreement with your employer, both parties must carry it out. And if one complains against the other, they should look to the fine print to see how the grievance process will work. Based on it, a court may turn away a litigant, such as James Tracy, if he failed to exhaust his internal appeals. That’s referred to in the legal trade as “exhaustion.” (They have to have a legalese name for everything, right?)

Preponderance of Evidence.  In civil actions (i.e., lawsuits) the requirement is not to prove the case beyond reasonable doubt, but to show that you are right on the preponderance of evidence.

Vagueness of a Law:  It is considered unconstitutional to try to enforce a vague law. Everyone has the right to know what he must do to stay lawful.

Opening the Door to Admissibility: If a certain type of evidence would normally be inadmissible but one side has introduced it, the other side may be able to get his or her two cents worth in, on that topic.

“403 grounds”: Per federal law, the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Retaliation: In the instant case, Tracy needed to show that his firing was not for the convoluted reasons that the Defendant — Florida Atlantic University (FAU)  — presented, but was a simple case of retaliation for his blogging about Sandy Hook. (Raise hands all who think it was retaliation for blogging about Sandy Hook.)

Policy on Outside Activities: The school, FAU, has a Policy that faculty must report outside activities.  The reason for this policy is to avoid conflicts of interest. (You don’t want the professor of holistic medicine to moonlight as a registered lobbyist for GlaxoKlineSmith type thing.) Another good reason is to see that the teacher is not devoting too much time to tasks other than the ones for which he is responsible to the university.

Chronology

In 2012, Tracy started a blog titled “Memory Hole: Reflections on Media and Politics.” (Recall: the academic department he worked in is Media.) He blogged on his personal time and got donations of $850.

The Sandy hook massacre took place on December 14, 2012. Soon, Tracy blogged about it and in January 2013, FAU officials, including the former president of FAU and staff from the press office met to discuss the complaints and to explore terminating him. I quote from Tracy’s appeal brief:

“The group kept handwritten notes and agreed not to exchange emails so their discussions would not enter the public record.  The notes recognized that FAU was bound by “freedom of speech” and “acad[emic] freedom,” but stated Tracy’s activities were “reckless + irresponsible,” and that he was a “black eye on all faculty” and a “1-man argument against tenure.”

The notes also state “JT [is] not going to stop publishing,” and the group was encouraged to “read his stuff” and “find winning metaphors” to circumvent the “1st Amendment.”

Dean Heather Coltman spoke to Tracy and advised that he had failed to issue a disclaimer.  Actually, his blog did say that the views expressed were his alone, but he used his work title Associate Professor. (Twenty other faculty members had blogs on which they gave their job title, but were not admonished for it.)

FAU and Tracy settled the matter, with FAU agreeing to drop the discipline and remove the disciplinary notice from his file in exchange for Tracy’s agreement to stop using his FAU title in blog postings and to use a disclaimer drafted by FAU that stated the content of the blog were the views of Tracy and not FAU.

The Policy

The next matter to be raised by the university (seeking  means of firing him) concerns the Policy by which all faculty are asked to report on a specific form if they have any conflict of interest. The form offers check boxes for four types of activities: “Employment”; “Professional Activity”; “Compensated Activity”; and “Continuing Business Interest.”

Again, it would be hard to say that James Tracy’s blog was against the Policy.  But in any case, the Policy was vague. It said nothing about blogging.  Faculty members who believed they did not have any conflict of interest did not have to fill out the form.

All Florida public universities must have a conflict-of-interest policy pursuant to Chapter 112, Part III, Florida Statutes (2018). FAU’s “Report of Outside Employment Guidelines” instructs that employees must report their conflicts of interest, conflicts of commitment, and outside activities “prior to” engaging in said activity.

One person who got fired was a Spanish teacher who failed to state (and later lied about) the fact that she had 8 other jobs.

To apply the Policy to a blog, Diane Alperin, vice-provost, testified that administrators would have to examine the contents of the blog. The same goes for social media posts: “I think it would depend on the content of the Twitter.”

No check box is offered for any type of uncompensated activity. Employees are not required to report “incidental use” of FAU equipment for outside activities.(Tracy sometimes typed his stuff on his work computer.) The rule in 2015 was that financial interests under $10,000 did not have to be reported.

The Trouble Begins

Between October and November 2015, Tracy asked for clarification about the Policy, including requesting a statement from FAU that his blogging did not qualify as a reportable outside activity. Williams forwarded Tracy’s emails to Alperin for further clarification. Some went to FAU’s legal department. FAU never answered Tracy’s questions nor met with him to instruct him on the scope or applicability of its vague Policy.

Instead, on November 10, 2015, Coltman sent Tracy a Notice of Discipline, which he did not receive until November 20, 2015, as he had been on paternity leave [aw]. The Notice required Tracy to comply within 48 hours or face “additional disciplinary action.”

On November 22, 2015, Tracy responded by letter. He raised concerns about the Policy’s breadth and that it violated his First Amendment rights. He informed Coltman that he had affirmed receipt of his annual assignment.

On December 16, 2015, Alperin sent Tracy a Notice of Termination, stating that he had failed to submit “properly completed forms” by the deadline. Tracy remained “recalcitrant” in refusing to report other activities that “may be in conflict with [his] employer,” namely his “personal blog.”

I don’t think you want to endure page and pages of details so I will come right to the court case. By this time, a Freedom of Speech group was assisting Tracy. They submitted the case with plenty of proof that he did not merit a firing. They showed that his firing was retaliation for the Sandy Hook criticism.

The judge properly instructed the jury. The verdict form contained two questions: (1) whether Tracy’s speech was a motivating factor in his termination; and (2) if so, whether FAU would have fired him absent the controversial speech. As to the first question, the jury was instructed as follows:

“[F]or Professor Tracy to prove that his speech was a motivating factor in FAU’s decision, Professor Tracy does not have to prove that his speech was the only reason for FAU’s actions. It is enough if Professor Tracy proves that his speech influenced FAU’s decision. If Professor Tracy’s speech made a difference in FAU’s decision, you may find that it was a motivating factor in the decision.”

So How Did Tracy Manage To Lose?

To win, Tracy would have had to provide a preponderance of the evidence — meaning it was more likely true than not, that retaliation was involved. The simple answer to how he lost the case at the District level was that the jury, amazingly, voted NO — Tracy’s blog speech was NOT a motivating factor in FAU’s decision to dump him.

In a December 15, 2017 article at the Sun Sentinel, we learn that:

“By the time James Tracy was fired from his job as a professor in January 2016, Florida Atlantic University officials said they had made it clear they were not stifling his free speech about Sandy Hook conspiracy theories.”

Well, feel free to believe that if you wish.

An appeal to the Eleventh Circuit followed. The excellent lawyers for Tracy wrote that there are four questions to be answered:

1. Whether FAU’s policy regarding conflicts of interest created by faculty blogging on matters of public concern is unconstitutionally vague under the First Amendment.
2. Whether the conflict of interest blogging policy inherently constitutes a content-based viewpoint discriminatory violation of the First Amendment.
3. Whether the district court erred in resolving the First Amendment claims on exhaustion, standing, and waiver.
4. Whether any reasonable jury could have concluded that controversial blogging was not a motivating factor in FAU’s decision to fire Tracy.

The final word of the Eleventh Circuit ruling, concerning the District Court’s decision to deny James Tracy’s claim is: “Affirmed.”

A quick bang of the gavel and that’s the end of that.