On Monday, jurors in U.S. District Court in West Palm Beach unanimously rejected James Tracy’s claim that Florida Atlantic University officials violated his constitutional rights when they fired him.
One of Tracy’s lawyers said Tuesday the case could set a disturbing precedent, validating the actions of public universities that impose prior restraint on their employee’s private speech and that violate the First Amendment. The university’s lawyer contended that Tracy’s termination was not retaliation for his speech but a matter of him repeatedly refusing to comply with the university’s policies.
Tracy, who had been a tenured associate professor in the School of Communication and Multimedia Studies at Florida Atlantic, became a lightning rod when he questioned the mass shooting in the days after it happened. He has continued to argue it was an elaborate hoax staged to promote gun control, and that no one died.
In December 2015, Lenny and Veronique Pozner, the parents of a 6-year-old boy, Noah, who was killed in the shooting, wrote an opinion piece in the South Florida Sun-Sentinel that argued the First Amendment protects free speech but not employment. They called on the state university to fire Tracy so that his arguments would not have the appearance of credible academic research.
They wrote of “conspiracy theorists that deny our tragedy was real. They seek us out and accuse us of being government agents who are faking our grief and lying about our loss. . . .
“Tracy even sent us a certified letter demanding proof that Noah once lived, that we were his parents, and that we were the rightful owner of his photographic image. We found this so outrageous and unsettling that we filed a police report for harassment.”
Tracy defended his research as “the pursuit of truth.”
Before the publication of the Pozners’ letter in December 2015, university officials had sent Tracy a notice proposing termination — subject to a grievance process — that followed a series of warnings.
“The timing of it is completely coincidental,” said G. Joseph Curley, an attorney with the law firm Gunster who is representing the university. “The optics of course look like the school is retaliating, when they’re not.”
The attorney said Florida Atlantic officials had been having conversations with Tracy since January 2013 about not identifying himself as an FAU professor when writing material not intended to be statements on behalf of the university, and about disclosing his outside activities — including a podcast in which he interviewed people about conspiracy theories and other topics — using FAU property.
He refused, Curley said, and claimed during the trial that he didn’t understand the policy, although he was president of the faculty union and signed the collective bargaining agreement that included the rule.
Curley agreed with Tracy’s attorneys that much was at stake in the case. One issue was whether a tenured faculty member could be fired. The jury concluded, he said, that Tracy was allowed to exercise his First Amendment rights. “He was allowed to blog, he was allowed to write whatever he wanted to personally. But he had to comply with the rules,” Curley said.
Through an attorney, Tracy sent a written statement Tuesday saying he did not think the jury had a clear understanding of the First Amendment, particularly its significance in higher education. He pointed out that tenure was instituted more than a century ago to protect faculty from the prejudices of university officials after a Stanford University professor was fired. Because none of the jurors was an academic, he said, they viewed FAU like any other employer.
“In my view the Tracy v. FAU decision will embolden university administrators across the U.S. to scrutinize the personal affairs of faculty members with whom they disagree,” Tracy said, “and they’ll be more inclined to discipline or terminate vulnerable faculty knowing a set of legal precedents are being established in this vein.”
He said the termination had made it difficult to find another job in academia, “despite applying to over 30 positions this year alone.”
The Florida Civil Rights Coalition, lawyers representing Tracy, said it was considering an appeal after the federal jury “nullif[ied] the First Amendment in favor of a government-run university.”
There was overwhelming evidence the professor was fired in retaliation, said Louis Leo IV, an attorney for Tracy, “for what he was saying as a private citizen, on his own time, about a matter of public concern. This is a dark chapter in American history.”
Leo shared a 2012 evaluation of Tracy that deemed his teaching, research, service and overall job performance as excellent, and excellent evaluations in ensuing years as well. The attorney also provided emails, including a 2016 message from a dean referring to Tracy’s writing on his blog with the comment, “Nut job.”
Leo said he thinks the jury was unable to look past the content of Tracy’s writing to consider the legal issue at hand.
“People only care about freedom of speech when it’s their speech,” he said — when it’s something they agree with. If the ideas are uncomfortable, “like questioning the government, it’s now no longer protected.”
Lisa Metcalf, a spokeswoman for the university, said in a statement, “We are grateful for the careful consideration of the jury in this matter. The university will continue to prioritize its research mission and the education of its students.”
Curley said he was thinking of the victims’ families and what they had to endure.
Lenny Pozner said he was “relieved to know that the jury sent a message out to other people who subscribe to those bizarre ideas.” He said he continues to be cyber-stalked by people questioning Sandy Hook and that police are not always helpful in protecting him and other victims.
“Not only is it adding to the grief,” he said. “It’s the bigger picture. It adds to everyone’s grief. If you become a victim of a mass-casualty event and you make any statements in the press or you appear on an interview you will get targeted,” by people claiming the events were hoaxes.
After writing the opinion piece, Pozner received death threats on his phone. A Florida woman who believed the conspiracy theories was convicted and sentenced to five months in prison.