Washington, DC—Today the Woodhull Freedom Foundation filed an amicus brief at the United States Supreme Court, supporting a petition for review by Dave Mech. Woodhull joins the First Amendment Lawyers Association (FALA) and the Free Speech Coalition (FSC) in the brief.
Dave Mech, who formerly acted in adult films as “Dave Pounder,” seeks to have the U.S. Supreme Court decide whether he has been illegally discriminated against in his attempt to hang banners advertising his math tutoring business on schoolyard fences in Palm Beach County, Florida, “Happy/Fun Math Tutor.” Mech has several degrees in both math and teaching.
The banners had been displayed for some time and there were no issues with Mech’s tutoring. In fact, there was nothing about the banners that raised concerns. It was, instead, that one parent discovered that “Dave Pounder Productions” used the same mailing address as Happy/Fun Math Tutor”—and using the now-well-established (if unwritten) doctrine of “porn cooties,” anything that’s in the vicinity of, or in any way connected to, an adult performer or production company is seen as having been contaminated by that proximity. To be clear – no one has claimed that children being tutored by Mech saw any adult material, or even knew of his connection to adult industries.
Mech’s claim was denied last month by the Eleventh Circuit Court of Appeals, which ruled that messages which appear on schoolyard fences is “government speech,” despite the fact that advertisers actually pay (or donate cash) to have their banners displayed on the fences.
“When the government exercises ‘the right to “speak for itself,”‘ it can freely ‘select the views that it wants to express,'” wrote the Eleventh Circuit panel which included ultra-conservative William Pryor. One of the “views” that the school board selected to “express” to middle school kids was for a local tavern, Miller’s Ale House.
Woodhull is represented in this case by First Amendment Attorney, Gary Edinger; the principal author of the brief. Woodhull’s General Counsel, Lawrence G. Walters (along with attorney Jim Green) represents Mech in the case. The question posed to the Supreme Court is, “Whether the Eleventh Circuit improperly expanded the ‘government speech’ exception to the First Amendment to include circumstances where the government was not itself a ‘speaker’ but had clearly discriminated against private speech on the basis of content.”
The brief goes on to explain, “The ‘government speech’ doctrine at issue in this case represents a rare instance where the courts afford no First Amendment protection whatsoever despite the fact that free speech and communication are clearly involved.” The brief argues, “The ‘government speech’ doctrine represents a dangerous exception to the First Amendment because it has the potential to cripple speech whenever citizens interact with government. In our complex society, government is everywhere: as landowner, the source of funding and contract rights, and as the indispensable partner in a variety of public-private joint ventures. In such a world, the protections of the First Amendment are more important than ever as a bulwark against government censorship.”
In Supreme Court jurisprudence, very few forms of speech have been deemed exempt from First Amendment protection. These include, according to the brief, “obscenity, state secrets in time of war, and possibly ‘fighting words’,” with the brief noting, “The doctrine of ‘government speech’ is a relatively new addition to this list,” and adds that, “It is also the category which poses the greatest risk of outright censorship of speech which most observers would otherwise conclude is otherwise firmly within the ambit of the First Amendment.”
The brief questions why the dispute between Mech and the school board couldn’t be resolved by simply looking at the board’s policies regarding who can advertise on its fences, noting, “It also seems inappropriate to allow First Amendment protections to hinge on whether a citizen might be confused as to the identity of the speaker or might believe that government endorses a particular speaker when such is not the case.” (The school board had indeed argued that allowing Mech’s signage was tantamount to endorsing adult entertainment.)
“There was nothing obviously offensive about the Petitioner’s advertisements,” the brief notes. “Neither were they much different in terms of content or appearance than the other advertisements which the School Board had approved over the years. The School Board had not adopted a policy that math tutors were bad—or even, for that matter, an express policy discouraging pornographic films. … In past years, this case would have been treated as a quintessential First Amendment claim. The Court would have first determined whether the School District had created a limited public forum for advertising on its fences. Had the facts supported that conclusion, the Court would then have considered whether the School Board had engaged in content-based discrimination. …”
“Traditional First Amendment analysis must apply in all cases except those narrow instances where the government is actively communicating a particular message for a legitimate public purpose,” the brief concludes. “The Court should use this case as an opportunity to narrow the government speech doctrine and reassert the primacy of the First Amendment.”
Ricci Levy, Woodhull’s President and CEO, observed; “Mech appears to be an obvious target of discrimination based on his involvement in the adult industry.” “Woodhull is proud to join with the First Amendment Lawyers Association and the Free Speech Coalition in urging the Court to consider this important case involving the right to sexual expression,” Levy Added.
Click here for the brief: 160603forfiling