No First Amendment violation for firing a professor for not reporting his blog

Plaintiff James Tracy held a tenured position at the School of Communication as Florida Atlantic University (F.A.U.) when he ran a personal online blog called the “Memory Hole Blog” which began attracting news media attention for publicly questioning whether the Sandy Hook Elementary School shooting in Newton, Connecticut had in fact occurred. The University did not ask Tracy to stop blogging but did request that he post an adequate disclaimer on his blog and that he report his blog as an outside activity. Both were required under the faculty’s collective bargaining agreement. Tracy did post a disclaimer by he refused to report his blog arguing that the blog did not qualify as a reportable outside activity under the definition of a “conflict of interest/outside activity. After he ignored two years of repeated requests to submit outside activity reports, F.A.U. fired him for insubordination.

Tracy sued F.A.U. in federal court alleging the school had terminated him in retaliation for a civil rights violation for exercising speech in violation of the First Amendment.  Tracy also claimed that the school’s reporting requirement it does no give fair notice to professors as to what must be reported. Specifically, he claimed the term “professional practice” was vague. The court rejected his void for vagueness argument because the professional practice is clear when considered in context. The term is clear from its natural meaning and dis not have to be defined in the school’s policy.

The court also rejected Tracy’s First Amendment argument that the reporting policy is overbroad and constitutes content-based restrictions on speech. A facial-overbreadth challenge requires a showing that the statute punishes a substantial amount of protected free speech. The court found the school’s policy does not punish or restrict any speech. It only requires that the faculty report certain types of speech activities. Tracy failed to offer any reason that the requirement became a content-based regulation.

Also, his argument that the school’s policy of a conflict of interest combined with a prohibition of such conflicts operated as a prior restraint on speech under the unbridled-discretion doctrine. The unbridled-discretion doctrine generally applies to licensing or permitting that requires individuals to obtain permission before engaging in speech activities. Tracy contended that the definition of conflict of interest, which includes any activity that conflicts with the public interest of the University fails to adequately constrain the University’s authority to prohibit outside activities. But the court of appeals rejected Tracy’s unbridled-discretion claim because he had not shown a “hypothetical constitutional violation in the abstract. He submitted no evidence that the University has prohibited any professor from engaging in any speech activity and he could not identify a single instance in which the University has determined that an outside speech activity constitutes a prohibited conflict of interest. At best, he can only speculate that the conflict-of-interest definition is facially overbroad. The court found that Tracy could have tested the breadth of the conflict-of interest prong of the policy by reporting his blog activity. At that point the University could have decided whether or not the conduct represented a conflict of interest and responded.