Court Backs School District's Removal of Ex-Porn Star's Tutoring Banners
A federal appeals court has upheld a Florida school district's decision to remove a math tutor's banners from its campuses after the district learned that the tutor is a former porn star who owns a company that once produced pornography.
The Palm Beach County district authorized banners for "The Happy/Fun Math Tutor" to be displayed outside three of its schools as part of its business partnership program. (The partners paid up to $650 for the right to display the banners, which had to be in school colors and include a message indicating the school partnership).
The tutor is David Mech, who has a master's degree, is enrolled in a Ph.D. program, and is certified to teach secondary school mathematics in Florida, according to court papers, which also include a description from a school district representative that he is "apparently a very good tutor."
Mech is also a former porn star who went by the name of Dave Pounder, court papers say. He also owns a company, Dave Pounder Productions, that was in the business of producing pornography, and that company shared a mailing address with his tutoring business.
When parents found out about the connection and the common address of the two businesses, they complained to the school district. The district removed Mech's banners, informing him that the common ownership of the two businesses "creates a situation that is inconsistent with the educational mission of the Palm Beach County school board and the community values."
Mech sued the school district under the First Amendment, among other grounds, and a federal district court held that he had no claim because the district did not act based on the content of his banners.
In a Nov. 23 ruling in Mech v. School Board of Palm Beach County, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled unanimously for the district as well, though on different grounds.
The appeals court held that the banners were government speech, not private speech.
"The banners bear the imprimatur of the schools and the schools exercise substantial control over the messages that they convey," the 11th Circuit court said. (Images of the Happy/Fun Math Tutor banners appear on Page 5 of the opinion.)
Mech argued that the banners were private speech because they were essentially advertisements, and other business partners of the school district displaying signs included an Italian restaurant, a roofing company, and a church.
But the appeals court pointed for support to the U.S. Supreme Court's decision last spring in Walker v. Texas Division, Sons of Confederate Veterans, which held that Texas could bar a Confederate symbol from its license plates.
"The government's control over the message ... strongly suggests that the banners are government speech," the court said. "Like the board that approves specialty license plates in Texas, the schools control the design, typeface, and color of the banners" and that school principals "must approve every banner before it goes up on a fence."
Because of its holding that the banners were government speech, the appeals court did not explore the school district's rationale that the tutor's association with pornography was inconsistent with the district's educational mission and values.
[Hat Tip to How Appealing for this case.]