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June 17, 2016

FSC Joins Cert Brief In Dave Pounder Discrimination Case

LOS ANGELES—Today, the Board of the Free Speech Coalition voted to join the amicus brief filed by the First Amendment Lawyers Association (FALA) and the Woodhull Freedom Foundation, in support of Dave Mech, who formerly acted in adult as "Dave Pounder," in his effort to have the U.S. Supreme Court decide whether he had been illegally discriminated against in his attempt to hang banners on Palm Beach County, Florida, schoolyard fences advertising his business, the "Happy/Fun Math Tutor." Mech has several degrees in both math and teaching. As AVN previously reported, Mech's claim was denied last month by the Eleventh Circuit Court of Appeals, which ruled that what appears 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. The FALA brief, authored by First Amendment attorneys Jeffrey J. Douglas and Gary S. Edinger, of which AVN received as a "draft version," poses the question to the Supreme Court, "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 limits of the government speech doctrine have not been well-developed by this Court and the lower courts continue to wrestle with the issue. The opportunity for misapplication of the government speech doctrine and the censorship of valuable communications are of concern to the FALA." 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." The amici urge the high court to "narrowly define" the "government speech" doctrine such that it will not be used simply to squelch speech the government doesn't like—though in Mech's case, it wasn't actually anything about his advertisement that raised concerns; it was the fact 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. However, no one has claimed that children being tutored by Mech saw any adult material, or even knew of his connection to adult. But 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. ..." The brief then proceeds to dissect the Eleventh Circuit's opinion, suggesting that it improperly modified one aspect of the "three factors" test of government speech found in previous court cases to support the school board's position. "The problem with the current status of the government speech doctrine is that one cannot tell whether the Eleventh Circuit was right or wrong in concluding that 'two out of three ain’t bad,'" quoting from the Meatloaf song of the same name. (And yes, Meatloaf and songwriter Jim Steinman are given credit in the brief.) "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."

 
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