Porn Actor Cum Math Tutor Loses First Amendment Case

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Happy, Fun, but we don’t want “that kind of thing”

This is sort of a sad story.  David Mech was once known as “Dave Pounder,” a porn actor.  I do not know him personally, but everything I can find out about him suggests that he is a pretty smart guy.  (example)

He has a bachelor’s degree from Michigan State University, a master’s degree from Arizona State University, and is enrolled in a Ph.D. program at Florida Atlantic University. He has taught mathematics at Palm Beach State College and is certified to teach secondary math in Florida. Mech is also a retired porn star. (Op.)

Dave also happens to run a math tutoring program, “The Happy Fun Math Tutor.”

Beginning in 2010, Mech inquired about displaying a banner for The Happy/Fun Math Tutor at three schools in Palm Beach County: Omni Middle School, Spanish River Community High School, and Boca Raton Community Middle School. Representatives from the schools encouraged Mech to apply: Mech specializes in the math courses that are taught at those schools and, according to a representative of the School Board, “[h]e apparently is a very good tutor.” The schools require banners to be printed in school colors and to include the message “[School Initials] Partner in Excellence.” The banners can include only the name, phone number, web address, and logo of the business partner. To obtain a banner, the schools require a minimum donation of $250–$650. (Op.)

Unfortunately, everything worked out just fine for three years.  Then, someone wiggled in their chair, and the stick up their ass penetrated their brain sac.

In 2013, the schools removed the banners for The Happy/Fun Math Tutor. Several parents complained about the banners after discovering the common ownership of The Happy/Fun Math Tutor and Dave Pounder Productions. The schools informed Mech that his “position with Dave Pounder Productions, together with the fact that Dave Pounder Productions utilizes the same principal place of business and mailing address as The Happy/Fun Math Tutor creates a situation that is inconsistent with the educational mission of the Palm Beach County School Board and the community values.” (Op.)

Mind you, there was never any question that Dave behaved improperly.  Dave didn’t fondle anyone.  Dave didn’t try and recruit anyone into porn.  Dave’s greatest sin was that he owned a porn company too.

And that is inconsistent with the “educational mission” of a public school system that gave us the fucking idiots who couldn’t figure out the butterfly ballot.

Dave sued the school district, alleging that their suppression of his commercial speech in this manner violated his First Amendment rights.  He lost because the district court held that the school did not remove the banners because of their content, but rather because of the stick up the board’s ass.

On appeal, the 11th Circuit affirmed, but not for that reason – but rather because the banners were deemed to be “government speech.”

When the government exercises “the right to ‘speak for itself,’” it can freely “select the views that it wants to express.” Id. at 467–68, 129 S. Ct. at 1131 (quoting Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229, 120 S. Ct. 1346, 1354 (2000)). This freedom includes “choosing not to speak” and “speaking through the . . . removal” of speech that the government disapproves. Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1012 (9th Cir. 2000) (citing Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674, 118 S. Ct. 1633, 1639 (1998)). (Op.)

Since the banners are on government property, contain government seals of approval, and there is no historical exception present, they are government speech, not Dave’s speech.

The schools do not allow the banners to list anything but the sponsor’s name, contact information, and preexisting business logo. “The message set out in [a banner] is from beginning to end the message established by the [school].” Johanns, 544 U.S. at 560, 125 S. Ct. at 2062. (Op.)

Unfortunately, this seems like it could be the right legal result.  These banners do come with an endorsement by the school, and do not only suggest, but explicitly contain, an imprimatur from the District. On the other hand, if these banners are “government speech,” there are banners there from churches. That comes up at 25:15 and 35:50 at oral argument (recording below). When that comes up, the school district’s attorney gets a bit cagey and evasive. In fact, the school district’s attorney doesn’t seem prepared for that argument at all.

Unfortunately, the court let her off, intellectual dishonesty and all. But, that’s what happens when you throw the word “porn” into a case. Nevertheless, the school board is, in its zeal to get rid of something that chafes its ass, is now admitting that it is engaged in religious proselytizing.

Right or wrong on the law, the facts are troubling.  I find it virtually impossible to imagine that someone driving by the school would ever think to themselves “I should look up the public records surrounding that tutoring business, and see what else is located at that P.O. Box.”  More likely, a competitor or someone with an axe to grind decided to fuck with Dave.

Would you care if your kids’ teacher used to be a porn actor?  Would you even care if they were a current porn actor?  If your answer is “yes,” then ask yourself “why?” What would you be worried about?  What is he going to do, fuck your kids after teaching them the pythagorean theorem?  Is he going to use his dick as an example of calculating the volume of a cylinder?  Go look for sex offenders in porn, and sex offenders in the clergy.  Now tell me you’d rather have a clergy member with your kid than Dave.

So, I am not so sure on the decision, but I’d like to offer a “go fuck yourself” to the uptight prick who decided to use Dave’s alter ego against him.

One Response to Porn Actor Cum Math Tutor Loses First Amendment Case

  1. markkernes says:

    Good one! I was thinking that if Mech takes an appeal to the Supremes, he might have a Reed v. Town of Gilbert argument regarding the speech aspect of the case. As you point out, apparently the Palm Beach School Board allows church messages as “government speech” as well, which I think undermines their argument before the 11th Circuit. And it’s not as if ANYONE who wanted to use Mech’s services would tumble to the fact that he was once a porn guy (who admittedly may have done his last movie as recently as 2013 according to the Internet Adult Film Database, but you can’t tell from that when that thing was actually shot…)

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