Academic Freedom Lawsuit To Proceed: Judge Affirms First Amendment Rights – Center for Research on Globalization
James Tracywas exposed on CNN in 2013 by Anderson Cooper, who branded him a conspiracy theorist for his investigation of anomalies surrounding the alleged Sandy Hook Newtown school shooting as portrayed in the media.
On February 21, 2017, a US federal judge ruled that former Florida Atlantic University (FAU) Professor James Tracys civil rights lawsuit can proceed to discovery.
As this author has observed the case stands to set a precedent in matters of free speech and academic freedom throughout the nation. Defendants include FAU, its Board of Trustees, President, Dean, Associate Provost, the Florida Education Association, and the faculty union United Faculty of Florida (UFF), along with the unions FAU Chapter President and Service Unit Director.
Tracy was terminated from his tenured professorship in January 2016, ostensibly for questioning university policy regarding the mandatory reporting of outside activities, and refusing to submit paperwork disclosing his personal blogging at his website, Memory Hole Blog.
Tracy argued that his blogging involved the exercise of his right to free speech as a private US citizen. The popular website was hacked or otherwise sabotaged by unnamed parties after the November 2016 election and, as of this writing, is no longer in operation.
FAU and UFF engaged in conspiracy
Tracy received a spate of unfavorable publicity by CNN and other news outlets in 2013, shortly after the alleged shooting at Sandy Hook School in Newtown, CT. The university set out to discipline Tracy as a result, attempting to dissuade him from making any further statements about the Newtown incident. FAUs faculty union, UFF, filed a grievance for Tracy on free speech grounds. In late 2015, however, union officials refused to defend the professor.
Tracys suit cites UFF as co-defendants, arguing that union officers conspired with university administrators to place an informal gag order on Tracy while allowing the universitys termination proceedings to go forward uncontested. At the same time, Tracy contends, union representatives discouraged him from filing a grievance or lawsuit, instead trying to intimidate him into resigning in lieu of termination. When Tracy refused to resign, the university fired him outright.
FAUs Conflict of Interest policy and its chilling effect on free speech
Part of the case involves a challenge to FAUs Conflict of Interest policy, which extends to all university faculty. FAU and many of Floridas other public universities now compel faculty members to present all their outside activities for administrative approval, whether compensated or not. Tracy objected to the policy, which would have required him to submit an account of his personal blogging. His suit argues that this is a form of prior restraint forbidden by the First Amendment.
Tracys concerns were shared by other members of FAUs faculty as well, including senior political science professor Timothy Lenz, who described a climate of fear and uncertainty, speaking at a faculty senate meeting on September 4, 2015. Lenz enjoined administrators to please call off your dogs, continuing at length:
The Administration has been sending faculty members who are engaged in outside activity nasty letters, letters of discipline or letters that threaten faculty members who are engaged in outside activity with discipline theres a great deal of suspicion that you can say, or write, or do something, but if you say, write, or do something that the Administration disagrees with youre going to get one of these nasty letters put in your personnel file and thats untenable.
Tracys suit names as defendants individual FAU administrators present at the September 4 faculty senate meeting, including FAU President John Kelly. Kelly and his co-defendants moved to dismiss the first complaint, which was granted in part, necessitating a Second Amended Complaint, filed on December 28, 2016. This second complaint has been upheld, with the defendants motion to dismiss denied in a February 21, 2017, decision by Judge Robin Rosenberg. The judge refers to John Kellys involvement in her analysis:
The inference from the allegations in the Second Amended Complaint is that Defendant Kelly was personally (and not vicariously) involved in a retaliatory violation of Plaintiffs First Amendment rights. As a result, Defendant Kelly is sufficiently on notice of the claim against him such that he is able to answer that claim.
Verified Second Amended Complaint
The individual counts in the Second Amended Complaint are as follows:
Count I Retaliation in Violation of Right to Free Speech, against Defendant FAU and Defendants President John Kelly, Associate Provost Diane Alperin, and College of Arts and Letters Dean Heather Coltman.
Count II Conspiracy to Interfere with Plaintiffs Civil Rights, against Defendants Alperin, Coltman, Kelly, UFF President Robert Zoeller, Jr., UFF Service Unit Director Michael Moats, UFF, Florida Education Association, and FAU.
Count III Facial Challenge to FAUs Conflict of Interest Policy, against Defendant FAU.
Count IV As-Applied Challenge to Plaintiffs Right to Free Speech, against Defendant FAU.
Count V Declaratory Judgment and Injunction, against Defendant FAU.
Count VI State Law Breach of Contract, against Defendant FAU.
Case proceeds to discovery
After Tracy initiated his lawsuit in April 2016, FAUs attorneys began filing repeated court motions, arguing that Tracys suit was frivolous, that no conspiracy existed, and that Tracys termination was due to his alleged misconduct and failure to disclose his blogging activities in a timely fashion. By this means, the defendants succeeded in precluding discovery for over six months.
These delaying tactics have been brought to an end with Rosenbergs February 21 decision, in which the court concludes that Plaintiffs Second Amended Complaint satisfies federal pleading standards and does not amount to mere labels and conclusions or a formulaic recitation of the elements of a cause of action, as FAU and UFF attorneys have argued.
Tracys legal team has now forced FAU to release thousands of internal emails between administrators, trustees, and non-university parties under Floridas Sunshine Law. Many of the documents tend to confirm the suits conspiracy allegations, including notes from a meeting between FAU counsel and administrators strategizing on how to discipline Tracy, and emails between Kelly and FAUs chief trustee on Tracys pending termination.
Fake News and media blackout on the status of Tracys lawsuit
After Rosenberg dismissed part of the First Amended Complaint, the Florida Sun Sentinelwhich has published a multitude of defamatory articles targeting Tracyfalsely reported that the entire lawsuit had been thrown out. This erroneous report was then picked up by the Associated Press and broadcast nationally (e.g. here, here and here). Only after Tracys attorney contacted the management of the Sun Sentinel to complain was the story revised. The Sun Sentinel has neglected to report on the court order allowing the suit to proceed. Nor has the mainstream media taken notice, with only a few exceptions.
In contrast to the media frenzy over Tracys research on the Newtown incident, in which he was viciously attacked in op-eds, letters to the editor, and news stories in print and on television, there is a conspicuous silence now that the case will proceed to trial. A legal victory for Professor Tracy would set a major precedent for free speech and academic freedom jurisprudence, and would decisively bolster safeguards for university employeesand indeed all employeesto comment freely on matters of public importance without fear of losing their jobs.
As an alternative to the mainstream press, Memory Hole Blog was used by Tracy and other contributors to draw attention to anomalous news coverage and analyze media reporting on controversial events. Many of these observations were deemed controversial or conspiracy theories by the very news outlets that came under scrutinyincluding CNN and the New York Timesorganizations now in the hot seat for disseminating Fake News themselves. This battle is currently raging over unsubstantiated allegations in the mainstream media against President Trump, who is called a conspiracy theorist himself by the press.
Should Tracy lose his case, the outcome would be disastrous for free speech rights. A decision favoring FAUs defense could be used by almost any employer, academic or otherwise, to further unconstitutionally monitor and restrict employee expression. This would likely intensify in the current US academic environment, rife with campaigns targeting politically incorrect speech and behavior. The way it stands, [FAU] could start firing people for not disclosing their Facebook pages, Tracys attorney Louis Leo IV said following a December court appearance.
The case moves forward
On February 28th the faculty union and FAU submitted separate responses to Tracys Second Amended Complaint, maintaining there was no conspiracy to fire Tracy and reasserting that the cause was his failure to follow FAUs outside activities policy. In its response, FAU characterized Tracys repeated attempts to obtain clarification on the unconstitutional policy as belligerent and rebellious. While Plaintiff appeared to embrace his nonconformist behavior thinking it would publicize his interests in the light he deemed helpful, FAUs attorneys wrote, the Defendant Universitys policy and intent were unrelated to such interests and were intended to provide Defendant University with necessary information for various legitimate and proper reasons.
With the discovery process now proceeding, FAUs defense looks increasingly weak. A flood of internal documents obtained under Floridas open records law indicates that university officials met repeatedly to strategize on how they would discipline Tracy without appearing to violate his First Amendment right to free speech. As these meeting notes and emails reveal, there was as much obsession in quelling the controversy surrounding Tracys blog as there was in the publicity his firing generated.
Based on the Rosenberg denial to dismiss, the case will now proceed to trial. Tracy is seeking declaratory relief upholding his right to free speech, injunctive relief with reinstatement to tenured employment and full restoration of benefits and lost wages, relief from the requirement to report outside activities for Tracy and his colleagues, compensatory damages, punitive damages, and attorneys fees as permitted by law.
Vivian Lee is the nom de plume of a tenured professor at an east coast university.
- Ninth Circuit Holds that Californias Captive-Audience Ban Violates the First Amendment - Littler Mendelson P.C. - October 30th, 2026 [October 30th, 2026]
- Watchdog accuses Texas State of 'egregious' First Amendment breach over paid advertisement - San Antonio Current - October 30th, 2026 [October 30th, 2026]
- From Armbands to T-Shirts: Student Speech and the First Amendment - The National Constitution Center - October 30th, 2026 [October 30th, 2026]
- CNN, MS NOW and Politico Ask Court To Make Trump Access Order Permanent - First Amendment Watch - October 30th, 2026 [October 30th, 2026]
- OUR VIEW: The First Amendment keeps you out of jail. It doesnt keep you employed. - Herald-Zeitung - October 30th, 2026 [October 30th, 2026]
- Federal judge hears argument from FIU students involved in alleged racist group chat who say their First Amendment rights were violated - WSVN - October 30th, 2026 [October 30th, 2026]
- 'Have these people READ the First Amendment?' REACTION to GOP leaning into Islamophobic attacks - Modern Ghana - October 30th, 2026 [October 30th, 2026]
- Editorial: A frantic GOP attacks the First Amendment and the truth - Orlando Sentinel - October 24th, 2026 [October 24th, 2026]
- Tom Costello on the First Amendment and the Future of Free Speech - NBCU Academy - October 24th, 2026 [October 24th, 2026]
- To Chill or Not to Chill: The First Amendment Beyond the Presidents Press Room - JURIST News - October 24th, 2026 [October 24th, 2026]
- UMD Athletics agrees to First Amendment training after student journalists questioned by police - The Baltimore Banner - October 24th, 2026 [October 24th, 2026]
- Judge Orders Trump To Sit for a Deposition in His Defamation Lawsuit Against the BBC by Dec. 11 - First Amendment Watch - October 24th, 2026 [October 24th, 2026]
- Florida GOP lawsuit to censor TV stations fails Sunshine State and First Amendment - Freedom of the Press Foundation - October 24th, 2026 [October 24th, 2026]
- A Trump Appointee Says the President Likely Violated the First Amendment by Banishing Disfavored Journalists (opinion) - Yahoo - October 17th, 2026 [October 17th, 2026]
- Journal of Free Speech Law: "How Matal v. Tam Became a First Amendment Case: The Record and the Reality" by Simon Tam - Reason Magazine - October 17th, 2026 [October 17th, 2026]
- Judge blocks Trump's White House ban targeting CNN, MS NOW and Politico, saying it likely violated First Amendment - CBS News - October 17th, 2026 [October 17th, 2026]
- The Future of the First Amendment: Young Adults - Ipsos - October 17th, 2026 [October 17th, 2026]
- The Future of the First Amendment: Young Adults - Knight Foundation - October 17th, 2026 [October 17th, 2026]
- Litigators of the Week: A First Amendment Win for CNN, Politico and MS NOW Against White House Press Ban - Law.com - October 17th, 2026 [October 17th, 2026]
- BBC Asks Judge To Force Trump To Sit for Deposition in His Own Lawsuit Against the Channel - First Amendment Watch - October 17th, 2026 [October 17th, 2026]
- Penn Carey Law hosts discussion on DEI and First Amendment after closing equity office - Campus Reform - October 17th, 2026 [October 17th, 2026]
- Broward Teachers Union president alleges First Amendment violation after meeting removal - WPLG Local 10 - October 17th, 2026 [October 17th, 2026]
- Judge prohibited First Amendment defense in trial over naked Shrek image - Axios - October 17th, 2026 [October 17th, 2026]
- Judge: Trump likely violated First Amendment by banning new outlets from White House - Straight Arrow - October 17th, 2026 [October 17th, 2026]
- A Trump appointee says the president likely violated the First Amendment by banishing disfavored journalists - Reason Magazine - October 17th, 2026 [October 17th, 2026]
- Ousted Publisher Says Hegseths Pentagon Ordered Him To Fire Journalists, Made Clear You Have No First Amendment Rights - Mediaite - October 4th, 2026 [October 4th, 2026]
- Letter to the Editor: Trump continues his assaults on the First Amendment - Chico Enterprise-Record - October 4th, 2026 [October 4th, 2026]
- LETTER: Trump and the First Amendment - Las Vegas Review-Journal - October 4th, 2026 [October 4th, 2026]
- The First Amendment at the stadium gate: Who controls speech on a public stage? - Daily Journal - October 4th, 2026 [October 4th, 2026]
- The Trump White House Keeps Treating the First Amendment as More of a Suggestion - Balls and Strikes - October 4th, 2026 [October 4th, 2026]
- OPINION: The First Amendment belongs to all of us - DerbyInformer.com - October 4th, 2026 [October 4th, 2026]
- Why the First Amendment is first - The Tryon Daily Bulletin - October 4th, 2026 [October 4th, 2026]
- An attorney with ties to North Dakota is leading a high-stakes First Amendment battle against Trump - kvrr.com - October 4th, 2026 [October 4th, 2026]
- Ousted Publisher Says Hegseth's Pentagon Ordered Him To Fire Journalists, Made Clear 'You Have No First Amendment Rights' - yahoo.com - October 4th, 2026 [October 4th, 2026]
- Man sues Kingsport, police over 2022 arrest, claims First Amendment rights violation - WJHL - September 24th, 2026 [September 24th, 2026]
- Editorial: Trumps news outlet ban stands in opposition to the First Amendment - The Virginian-Pilot - September 24th, 2026 [September 24th, 2026]
- What is the First Amendment and why did 3 news outlets sue Trump? - nbcmiami.com - September 24th, 2026 [September 24th, 2026]
- Dont you just love the First Amendment! - - Smoky Mountain News - September 24th, 2026 [September 24th, 2026]
- Restoring Judicial Review Under the Freedom of Information Act - | Knight First Amendment Institute - September 24th, 2026 [September 24th, 2026]
- CNN, Politico, MS NOW Sue Trump Administration Over White House Access: First Amendment Analysis - Freedom Forum - September 24th, 2026 [September 24th, 2026]
- 251. Newsgathering, the First Amendment, and the White House - One First | Steve Vladeck | Substack - September 24th, 2026 [September 24th, 2026]
- 5 Ways DHS Agents Intimidated Americans Using Their First Amendment Rights - Common Cause - September 24th, 2026 [September 24th, 2026]
- CNN, MS NOW, Politico Sue Over Denied White House Access, Citing First Amendment - WTTW News - September 24th, 2026 [September 24th, 2026]
- Does the presidents White House media ban violate the First Amendment? Lawyer explains - WATE 6 On Your Side - September 24th, 2026 [September 24th, 2026]
- UWEC Professor teaches about first amendment law amid media outlet ban from White House - WEAU - September 24th, 2026 [September 24th, 2026]
- A record number of Americans think the First Amendment goes too far - WAMU - September 24th, 2026 [September 24th, 2026]
- United States: CNN, MS NOW, and Politico file First Amendment lawsuit over White House access ban - ipi.media - September 24th, 2026 [September 24th, 2026]
- Californias Addictive Feeds Law Violates Teens First Amendment Rights - eff.org - September 24th, 2026 [September 24th, 2026]
- On Constitution Day, is the US fumbling the First Amendment? - nmsuroundup.com - September 24th, 2026 [September 24th, 2026]
- Trump has not beaten the First Amendment, try as he might - The Seattle Times - September 24th, 2026 [September 24th, 2026]
- EDITORIAL: President Violates the First Amendment, Mainstream Publications Get a Taste of What the Black Press Has Long Experienced Exclusion - The... - September 24th, 2026 [September 24th, 2026]
- Student journalist sues University of Texas at Dallas for First Amendment violations - Dallas Observer - September 24th, 2026 [September 24th, 2026]
- Detroit Free Press. . First amendment reporter BrieAnna Frank explains how President Trumps ban on several news outlets from the White House will test... - September 24th, 2026 [September 24th, 2026]
- Opinion | Trumps attacks on the First Amendment go well beyond just freedom of the press - ms.now - September 24th, 2026 [September 24th, 2026]
- The Wolf Came As A Wolf: Trump and the First Amendment - Civil Discourse with Joyce Vance - September 24th, 2026 [September 24th, 2026]
- The First Amendment gives Americans a superpower: Petitioning the government to right wrongs - The Seattle Times - September 13th, 2026 [September 13th, 2026]
- The war on terror weakened the first amendment. Now we desperately need it | Jameel Jaffer - The Guardian - September 13th, 2026 [September 13th, 2026]
- CBS Argues First Amendment Protections in Bid to Dismiss Matlock Writer Lawsuit Over Allegedly Racist Comments - The Hollywood Reporter - September 13th, 2026 [September 13th, 2026]
- Kentucky leads 14-state coalition to SCOTUS on First Amendment rights - Eyewitness News (WEHT/WTVW) - September 13th, 2026 [September 13th, 2026]
- The First at 250: A Conversation on the First Amendment - Knight Foundation - September 13th, 2026 [September 13th, 2026]
- The Forever War and the First Amendment, Thu, Sep 10, 2026, 9am - 5pm - Community Calendar - ABC7 New York - September 13th, 2026 [September 13th, 2026]
- Kid Cudi Says First Amendment Protected Firing M.I.A. From Tour, Wants $2.8 Million Lawsuit Tossed - Law Commentary - September 13th, 2026 [September 13th, 2026]
- Police have dual role in protecting public and First Amendment rights | Op-Ed - The Seattle Times - September 13th, 2026 [September 13th, 2026]
- Democrats obliterated the First Amendment right to assembly: RFK Jr - Yahoo - September 13th, 2026 [September 13th, 2026]
- Trump Cant Call Ballots Mail and Escape the First Amendment - Jurist.org - September 8th, 2026 [September 8th, 2026]
- Judge Refuses To Block Pentagon From Firing Stars and Stripes Staffers Over CBS Interview - First Amendment Watch - September 8th, 2026 [September 8th, 2026]
- Uniform doesnt come with First Amendment waiver - oleantimesherald.com - September 8th, 2026 [September 8th, 2026]
- UW to pay $600,000 to professor after losing First Amendment fight over his parody land acknowledgment - Alaska Story - September 8th, 2026 [September 8th, 2026]
- First Amendment auditor convicted of trespassing at Conn. officers home - Police1 - September 8th, 2026 [September 8th, 2026]
- Labor Day: Brought to You by the First Amendment - Freedom Forum - September 8th, 2026 [September 8th, 2026]
- At FIU stop, DeSantis discusses First Amendment rights in wake of federal judge ruling in favor of anti-ICE protesters - WSVN - August 27th, 2026 [August 27th, 2026]
- Commentary: The First Amendment is more than the right to speak - Lake Oswego Review - August 27th, 2026 [August 27th, 2026]
- Trumps Unholy War on the First Amendment - Progressive.org - August 27th, 2026 [August 27th, 2026]
- Stars and Stripes staffers sue Pentagon over firings alleging First Amendment violations - The Independent - August 27th, 2026 [August 27th, 2026]
- Man arrested at Berkeley County gas station says his First Amendment rights were violated - Live 5 News - August 27th, 2026 [August 27th, 2026]
- Composer-Pianist Vijay Iyer to Perform at The Forever War Symposium - | Knight First Amendment Institute - August 27th, 2026 [August 27th, 2026]
- How Do We Aggressively Lobby for Press Freedom Legislation in a Post-Trump World? - | Knight First Amendment Institute - August 27th, 2026 [August 27th, 2026]
- Federal judge says FIU violated first amendment rights of anti-ICE student protesters - Creative Loafing Tampa - August 27th, 2026 [August 27th, 2026]
- Trump Sued for Selling Early Access to Truth Social Posts: First Amendment Analysis - Freedom Forum - August 22nd, 2026 [August 22nd, 2026]
- Students, ACLU argue FIU violated First Amendment rights after doling out punishments for ICE protests - WSVN - August 22nd, 2026 [August 22nd, 2026]