Dave Pounder Appeals Discrimination Case to Supreme Court

PALM BEACH CTY., Fla.—By now, everyone must have heard of the troubles that former adult actress Bree Olson has had in creating a life post-porn. Unable to get a job because "They treat me as if I would somehow be damaging to children," she's now working as a cam model and hoping to figure out how to overcome the stigma of having had sex on camera. But guess what? It's not just actresses who have trouble fitting into what is hypocritically called "polite society." Some former male performers face similar problems—even well-educated, well-spoken ones like Dave Pounder. Late last year, AVN wrote about the problems that Pounder, who now goes by his real name Dave Mech, has been having with the school districts in Palm Beach County, well-known as a fairly conservative area. See, although Mech has a master's degree in mathematics from Arizona State University, has taught math at Palm Beach State College and is certified in Florida to teach secondary school math, he's been having trouble getting his business, the "Happy/Fun Math Tutor," off the ground due to some of the locals' prejudice against him because of his former career. Mech's problems began back in 2013, after he had obtained permission two years earlier to put banners advertising his tutoring service on fences around three Palm Beach public schools: Omni Middle School, Spanish River Community High School and Boca Raton Community Middle School. The schools removed those banners in February of '13, with the principals of those schools stating that Mech's "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." An attorney for the school board claimed that Mech's former work was "brought to the attention of the school administration by multiple parents who expressed great concern over the potential for the students using your tutoring service to become subjected to your adult entertainment business," and used the excuse that, "Given that parents within the community have already made the connection between your tutoring business and your adult entertainment business, the principals had no choice but to remove your banners." Now, no one is claiming that kids whom Mech tutored saw any porn, or even evidence that sexually explicit materials were seen in Mech's possession, and most assuredly, no one is claiming that Mech sexually abused any of the kids. And those principals most certainly did have a choice: they could have stood up for Mech's rights as an American not to suffer from unwarranted prejudice on the part of the community. So Mech sued the Palm Beach County School Board, alleging in his Amended Complaint that the Board and its employees, after inviting Mech to advertise his services at the school in exchange for what has been described both as a "payment" (defendants) and a "donation" (Mech), violated Mech's First (speech) and Fourteenth (due process and equal protection) Amendment rights, as well as having breached the contract the school districts had with him. And Mech even has a prior case to back him up: in 2011, former gay porn star/director Shawn Loftis was fired from his job as a part-time middle school teacher because of his background, but the Florida Education Practices Commission ruled that Loftis' firing was illegal and that he could go back to teaching kids, even full-time if he wanted. Moreover, the school district had a fairly haphazard way of deciding who could and could not advertise on the school fences, allowing some clearly "not policy compliant" businesses to post on the fences nonetheless, and several "non-academic-related" ones as well. "By forbidding advertisers who associate with businesses whose speech Defendant disfavors (including Mech) to advertise on the same terms and conditions as advertisers Defendant prefers (such as Journey Church and Miller’s Ale House), Defendant has denied those disfavored advertisers, like Plaintiff, equal access to the schools’ limited public forum and Defendants have discriminated against those disfavored advertisers on the basis of the content of the speech of their other completely separate businesses," Mech argued in his complaint. But Mech's complaint was dismissed by summary judgment, so he appealed to the (fairly conservative) Eleventh Circuit Court of Appeals—and it was probably just his luck that one of the panelists he drew was none other than William Pryor, the former Alabama attorney general who had been nominated in 2003 to the Eleventh Circuit bench by George W. Bush, then recess-appointed to the bench by him because "Senate Democrats refused to allow Pryor to be confirmed, criticizing him as an extremist, citing statements he had made such as referring to the Supreme Court as 'nine octogenarian lawyers' and saying that Roe v. Wade was the 'worst abomination in the history of constitutional law.'" (Pryor was eventually confirmed to his seat thanks to a deal brokered by John McCain.) He's now on the short-list of Donald Trump's Supreme Court picks. Given William Pryor's background, it was almost a foregone conclusion that the panel would affirm the trial court's summary judgment, with the panel ruling on November 23 of last year that the school fences were not the "limited public forum" that Mech had argued they were, but rather, somehow, "government speech," with the panel stating that, "When the government exercises 'the right to "speak for itself,"' it can freely 'select the views that it wants to express.'" (That 'Miller's Ale House' is an okay advertisement for kids?????) So now, Mech is appealing his case to the U.S. Supreme Court, aided by attorneys James K. Green, his long-time counsel, and Lawrence G. Walters, a name very familiar to free sexual speech advocates. At this point, the case revolves around a Supreme Court decision in Walker v. Texas Division, Sons of Confederate Veterans, Inc. involving, of all things, a battle to put the confederate flag on some specialty Texas license plates. The high court ruled that license plates were "government speech," and that it was therefore up to the government to decide whether it wanted to include the rebel flag or not. However, in Mech's Supreme Court petition, he quotes from conservative Justice Samuel Alito's dissent in Walker, where Alito, joined by Roberts, Scalia and Kennedy, stated, "Suppose that a State erected electronic billboards along its highways. Suppose that the State posted some government messages on these billboards and then, to raise money, allowed private entities and individuals to purchase the right to post their own messages. And suppose that the State allowed only those messages that it liked or found not too controversial. Would that be constitutional? "What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve?" the dissent continued. "What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen." Mech's attorneys make several more arguments in a similar vein to the above quote, then conclude, "The Eleventh Circuit’s decision, if left standing, would allow the government to strip private speech of all First Amendment protection merely by adding a pro forma, ambiguous statement of approval. If allowed to stand, the decision threatens to undermine well-established constitutional jurisprudence in the free speech realm, by allowing the School Board to rubber stamp traditionally private speech and thereby strip protected expression of fundamental First Amendment safeguards." "I am hopeful the high court will grant review and rein in any expansion of the government speech doctrine, which strips private speech of all First Amendment protection," Mech told AVN is an email. "While the government has every right to speak for itself, it shouldn't be allowed to hide behind the government speech doctrine as an excuse to exercise blatant viewpoint- and speaker-based discrimination when facilitating private speech. "This case is less about my prior involvement with the adult industry and more about limiting the government's ability to exercise unbridled discretion and retaliate against people solely due to their otherwise constitutionally protected speech or conduct, especially when it is outside of and totally irrelevant to the forum at hand," he continued. "As the court begins to hear more cases involving 'hybrid'-speech (i.e., part government, part private speech), in cases like Walker and In re Tam, I am hopeful the unconstitutional conditions doctrine and prohibitions against viewpoint- and speaker-based discrimination will be extended to include all such government facilitation of private speech, not just based on the content of the message but also the viewpoint and identity of the speaker." The full record of Mech's lawsuit and appeals can be seen here.