throbber
No. _________
`================================================================
`
`In The
`Supreme Court of the United States
`
`---------------------------------  ---------------------------------
`
`DAVID BENOIT MECH, d/b/a
`THE HAPPY/FUN MATH TUTOR,
`
`Petitioner,
`
`v.
`
`SCHOOL BOARD OF PALM
`BEACH COUNTY, FLORIDA,
`
`Respondent.
`
`---------------------------------  ---------------------------------
`
`On Petition For Writ Of Certiorari
`To The United States Court Of Appeals
`For The Eleventh Circuit
`
`---------------------------------  ---------------------------------
`
`PETITION FOR WRIT OF CERTIORARI
`
`---------------------------------  ---------------------------------
`
`JAMES K. GREEN, ESQ.
`Counsel of Record
`JAMES K. GREEN, P.A.
`222 Lakeview Avenue
`Suite 1650, Esperante
`West Palm Beach, Florida 33401
`Telephone: 561.695.2029
`Facsimile: 561.655.1357
`jkg@jameskgreenlaw.com
`
`LAWRENCE G. WALTERS, ESQ.
`WALTERS LAW GROUP
`195 West Pine Avenue
`Longwood, Florida 32750
`Telephone: 407.975.9150
`Facsimile: 407.774.6151
`larry@firstamendment.com
`
`Attorneys for Petitioner
`
`================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`

`
`i
`
`QUESTION PRESENTED FOR REVIEW
`
`
`Does the decision in Walker v. Texas Division, Sons
`
`of Confederate Veterans, Inc., ___ U.S. ___, 135 S. Ct.
`2239 (2015), allow the government to place an impri-
`matur on private advertising and thereby render the
`advertisement government speech, stripping it of all
`First Amendment protection?
`
`
`
`
`
`

`
`ii
`
`PARTIES TO PROCEEDINGS BELOW AND
`CORPORATE DISCLOSURE STATEMENT
`
`
`
`
`
`All parties to the proceedings are listed below:
`
`David Benoit Mech, d/b/a The Happy/Fun
`Math Tutor, Petitioner.
`
`The School Board of Palm Beach County, Flor-
`ida, Respondent.
`
`The ACLU of Florida, amicus below, is a non-
`profit corporation and has no stock. There is
`no parent or publicly held company owning
`10% or more of the corporation’s stock.
`
`
`
`
`
`

`
`iii
`
`TABLE OF CONTENTS
`
`ii
`iii
`v
`1
`2
`2
`2
`3
`7
`
`Page
`Question Presented for Review ..............................
`i
`Parties to Proceedings Below and Corporate Dis-
`closure Statement ...............................................
`Table of Contents ....................................................
`Table of Authorities ................................................
`Introduction ............................................................
`Citations to Opinions Below ..................................
`Basis of Jurisdiction ...............................................
`Constitutional Provisions .......................................
`Statement of Case and Proceedings ......................
`Reasons for Granting the Writ ...............................
`
`I. The Decision Below Presents The Impor-
`tant Unanswered Question Posed By The
`Four Dissenters In Walker v. Texas Division,
`Sons of Confederate Veterans, Inc., ___ U.S.
`___, 135 S. Ct. 2239 (2015) ...........................
` II. The Decision Below Conflicts with Walker
`and In re Tam, 808 F.3d 1321 (Fed. Cir.
`2015), petition for cert. filed sub nom. in Lee
`v. Tam, (April 20, 2016) (No. 15-1293) which
`limit the applicability of the government
`speech doctrine ............................................. 12
`Conclusion ............................................................... 14
`
`7
`
`
`
`
`
`

`
`iv
`
`TABLE OF CONTENTS – Continued
`
`Page
`
`APPENDIX
`Order of the United States Court of Appeals
`issued by the Eleventh Circuit on November
`23, 2015 ............................................................ App. 1
`Judgment of the United States Court of Appeals
`issued by the Eleventh Circuit on November
`23, 2015 .......................................................... App. 19
`Order on Motion to Amend Judgment issued by
`the United States District Court for the
`Southern District of Florida on February 24,
`2015 ................................................................ App. 21
`Order on Motion for Summary Judgment issued
`by the United States District Court for the
`Southern District of Florida on October 27,
`2014 ................................................................ App. 25
`Order on Petition for Rehearing and Rehearing
`En Banc issued by the United States Court of
`Appeals for the Eleventh Circuit on January
`19, 2016 .......................................................... App. 41
`Amended Complaint Under the Civil Rights
`Act, 42 U.S.C. §§ 1983, for Damages, Injunc-
`tive, and Declaratory Relief on February 13,
`2014 ................................................................ App. 43
`Petition for Rehearing and Rehearing En Banc .... App. 68
`
`
`
`
`

`
`v
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), peti-
`tion for cert. filed sub nom. in Lee v. Tam,
`(April 20, 2016) (No. 15-1293) ......... 11, 12, 13, 14, 15
`Mech v. Sch. Bd. of Palm Beach Cty., 806 F.3d
`1070 (11th Cir. 2015) ......................................... 2, 5, 8
`Pleasant Grove City v. Summum, 555 U.S. 460
`(2009) ................................................................. 5, 8, 9
`Rosenberger v. Rector and Visitors of Univ. of Va.,
`515 U.S. 819 (1995) ................................................... 9
`Walker v. Texas Division, Sons of Confederate
`Veterans, Inc., ___ U.S. ___, 135 S. Ct. 2239
`(2015) ............................................................... passim
`
`
`CONSTITUTIONAL PROVISIONS AND STATUTES
`U.S. Const. amend. I ........................................... passim
`U.S. Const. amend. XIV ................................................ 3
`28 U.S.C. § 1254(1) ........................................................ 2
`
`OTHER AUTHORITIES
`http://mechforpbcschools.com/lawsuit.html ................. 5
`https://www.youtube.com/watch?v=878jhF4m0Ro ..... 6
`
`
`
`

`
`1
`
`INTRODUCTION
`This case presents the scenario that Justice Alito
`
`and three other dissenting Justices feared in Walker
`v. Texas Division, Sons of Confederate Veterans, Inc.,
`___ U.S. ___, 135 S. Ct. 2239 (2015):
`
`. . . Suppose that a State erected elec-
`
`tronic billboards along its highways. Suppose
`that the State posted some government mes-
`sages on these billboards and then, to raise
`money, allowed private entities and individu-
`als 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 constitu-
`tional?
`
` What if a state college or university did
`the same thing with a similar billboard or a
`campus bulletin board or dorm list serve?
`What if it allowed private messages that are
`consistent with prevailing views on campus
`but banned those that disturbed some stu-
`dents 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.
`
`Id. at 2254-56 (Alito, J., dissenting).
`
`---------------------------------  ---------------------------------
`
`
`
`
`
`
`
`

`
`2
`
`CITATIONS TO OPINIONS BELOW
`The opinion of the court of appeals for which re-
`
`view is sought is reported at 806 F.3d 1070 (11th Cir.
`2015). (App. 1-18). That opinion affirmed the district
`court’s order on summary judgment (App. 25-40) as
`well as the district court’s decision on Mech’s motion to
`amend judgment. (App. 21-24).
`
`---------------------------------  ---------------------------------
`
`BASIS OF JURISDICTION
`The Eleventh Circuit entered the judgment below
`
`on November 23, 2015. (App. 19-20). The court denied
`a timely petition for rehearing and rehearing en banc
`on January 19, 2016. (App. 41-42).
`
`On April 8, 2016, Justice Thomas granted Peti-
`
`tioner an extension of time to file his Petition for Writ
`of Certiorari to May 18, 2016. This petition is timely
`filed.
`
`
`
`Jurisdiction is based upon 28 U.S.C. § 1254(1).
`
`---------------------------------  ---------------------------------
`
`CONSTITUTIONAL PROVISIONS
`Congress shall make no law respecting an es-
`tablishment of religion, or prohibiting the free
`exercise thereof; or abridging the freedom of
`speech, or of the press; or the right of the peo-
`ple peaceably to assemble, and to petition the
`Government for a redress of grievances.
`
`U.S. Const. amend. I.
`
`
`
`

`
`3
`
`All persons born or naturalized in the United
`States, and subject to the jurisdiction thereof,
`are citizens of the United States and of the
`State wherein they reside. No State shall
`make or enforce any law which shall abridge
`the privileges or immunities of citizens of the
`United States; nor shall any State deprive any
`person of life, liberty, or property, without due
`process of law; nor deny to any person within
`its jurisdiction the equal protection of the
`laws.
`
`U.S. Const. amend. XIV, Section 1.
`
`---------------------------------  ---------------------------------
`
`STATEMENT OF CASE AND PROCEEDINGS
`Petitioner David Mech a/k/a The Happy/Fun Math
`
`Tutor (“Petitioner” or “Mech”) sued the School Board of
`Palm Beach County, Florida, for violating his First and
`Fourteenth Amendment rights when three of the
`County’s public schools removed Mech’s math tutoring
`business banner advertisements from their fences.
`
`In 2008, the School Board – which oversees the
`
`Palm Beach County School District – adopted a pilot
`program for its schools to hang banners on their fences
`to recognize the sponsors of school programs. The
`banner program was codified in 2011 as Policy 7.151,
`“Business Partnership Recognition – Fence Screens.”
`Subsection (1) of the Policy states its purpose:
`
`Purpose. – The District recognizes that
`
`athletic sponsors and other business partners
`
`
`
`
`

`
`4
`
`provide a vital role in sponsorship of key
`programs within our schools. As such, schools
`have increased needs to visibly recognize
`these partners in the community. In the in-
`terests of community aesthetics and in consid-
`eration of local ordinances that may prohibit
`or restrict banners and advertising, these
`uniform standards have been developed. By
`permitting the recognition of business part-
`ners on school campuses, it is not the intent of
`the School Board to create or open any Palm
`Beach County School District school, school
`property or facility as a public forum for
`expressive activity, nor is it the intent of
`the School Board to create a venue or forum
`for the expression of political, religious, or
`controversial subjects which are inconsistent
`with the educational mission of the School
`Board or which could be perceived as bearing
`the imprimatur or endorsement of the School
`Board.
`
`Id. at 7.151(1). Mech complied with the requirements
`for the banner ad program, and the schools hung his
`banner advertisements on their fences.
`
`The schools subsequently removed the banners,
`
`however, after some parents complained upon discov-
`ering that Mech’s tutoring business shared a mailing
`address at a private postal center with his former
`adult media business, 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
`address as The Happy/Fun Math Tutor creates a
`
`
`
`

`
`5
`
`situation that is inconsistent with the educational
`mission of the Palm Beach County School Board
`and the community values.” Mech v. Sch. Bd. of
`Palm Beach Cty., 806 F.3d 1070, 1072-74 (11th Cir.
`2015).
`
`The district court entered summary judgment
`
`against Mech on the ground that since the schools
`did not remove the banners due to their content,
`no First Amendment violation had occurred. App.
`25-40. The district court’s ruling failed to address
`Mech’s core claims, which were rooted not in the
`content of the banner, but in the censorship of his
`speech based on his viewpoint and identity, which re-
`sulted from the unbridled discretion afforded by the
`School Board’s Policy.
`
`The Eleventh Circuit panel affirmed, but on a dif-
`
`ferent ground. Citing Pleasant Grove City v. Summum,
`555 U.S. 460, 467 (2009), the court concluded that the
`Free Speech Clause of the First Amendment does not
`protect Mech because the banner advertisements con-
`tained the tagline “Partners in Excellence” and thus
`constituted “government speech.” Mech, 806 F.3d at
`1072. Prior to its decision, the Eleventh Circuit had
`ordered supplemental briefing after sua sponte raising
`the question of whether the banners were government
`speech under the recently decided Walker v. Texas
`Division, Sons of Confederate Veterans, Inc., ___ U.S.
`___, 135 S. Ct. 2239 (2015). Neither party in either
`their original or supplemental briefs had argued that
`the speech was government speech. See oral argu-
`ment at http://mechforpbcschools.com/lawsuit.html or
`
`
`
`

`
`6
`
`https://www.youtube.com/watch?v=878jhF4m0Ro The
`issue was likewise not briefed or factually developed in
`the district court.
`
`The Eleventh Circuit held that the banner adver-
`
`tisements constituted government speech even though
`indicia of private advertising predominate, in that:
`1) the advertisers own the banners; 2) School Board
`officials acknowledged that the banners are adver-
`tising; 3) the banners have private logos of the spon-
`sored business prominently displayed with corporate
`colors; 4) the location of the banners varies depending
`upon the size of the contribution; 5) local governments
`commonly regulate the size and location of private
`signs; 6) the banners contain contact information
`exclusively for the private business; 7) the banners
`are not permanent; 8) the banners are not government
`IDs or monuments; 9) the history of banner ads is brief
`rather than longstanding; and 10) the advertisers
`pay a fee in exchange for their banners being displayed
`for a fixed period of time. Notably, the School Board
`never claimed in its answer or supplemental briefs,
`even when invited to do so during oral argument,
`id. (oral argument at 0:55-1:22, 24:38-26:38, and 27:26-
`27:42), that the “Partners
`in Excellence” tag-
`lines were its own (i.e., government) speech. Further,
`neither School Board Policy 7.151(2)(h) nor protocol
`requires principals to conduct criminal or back-
`ground checks on businesses with whom the Dis-
`trict partners. Thus, there is no vetting of purported
`“partners” for their “excellence.” The only real criterion
`
`
`
`

`
`7
`
`for becoming a “partner” is that the business pay
`money for its ads.
`
`The Eleventh Circuit’s ruling that Mech’s banners
`
`constituted “government speech” under Walker was
`based on an incomplete record, since the issue of
`government speech was never litigated or factually
`developed in the district court.
`
` Mech filed a Petition for Rehearing and Rehearing
`En Banc. App. 68. On January 19, 2016, the circuit
`court denied Rehearing and Rehearing En Banc.
`
`---------------------------------  ---------------------------------
`
`REASONS FOR GRANTING THE WRIT
`I. THE DECISION BELOW PRESENTS THE
`IMPORTANT UNANSWERED QUESTION
`POSED BY THE FOUR DISSENTERS IN
`WALKER V. TEXAS DIVISION, SONS OF
`CONFEDERATE VETERANS, INC., ___ U.S.
`___, 135 S. CT. 2239 (2015).
`In Walker, this Court determined that specialty
`
`license plates issued by the State of Texas were
`government speech and that the State’s denial of a
`Confederate Flag plate was therefore not subject to
`First Amendment scrutiny. Walker, 135 S. Ct. at 2244-
`45. In so holding, this Court concluded that because
`(1) the States have historically used license plates to
`communicate with the public, (2) license plates are
`often closely identified in the public’s mind with
`the State, and (3) Texas effectively controlled the ex-
`pressive content of the license plates by exercising
`
`
`
`

`
`8
`
`final approval authority over submitted designs, Texas’
`specialty plates “are similar enough to the monuments
`in Summum to call for the same result.” Walker, 135
`S. Ct. at 2249. Walker acknowledged, however, that its
`holding applied only in limited circumstances, noting
`the unusually close connection between license plates
`and State directives. Id. at 2251. Walker held that li-
`cense plates are government speech because they are
`government items serving governmental purposes of
`vehicle registration and identification, are required by
`law for every Texas vehicle owner, are issued by the
`State, and are, “essentially, government IDs.” Id. at
`2249.
`
`The Eleventh Circuit found Walker dispositive for
`
`two reasons. First, it held that “observers reasonably
`believe the government has endorsed the message[s]”
`because they were hung on school fences. Mech, 806
`F.3d at 1076. Second, it held that because the schools
`control “the design, typeface, [and] color” of the ban-
`ners, id. at 1078 (quoting Walker, 135 S. Ct. at 2249),
`“and require the banners to include the school’s initials
`and the message ‘Partner in Excellence,’ ” id., the
`banners are government speech. The circuit court’s
`reasoning is faulty because it disregards the narrow
`and limited nature of this Court’s 5-to-4 decision in
`Walker.
`
`Unlike the license plates at issue in Walker,
`
`the banner advertisements here are not government
`IDs over which the School Board exercises absolute
`control over language or design. Nor do they have the
`history as government speech found so significant in
`Walker. And while the circuit court’s decision places
`
`
`
`

`
`9
`
`great weight on the language “Partners in Excellence,”
`this statement is nothing more than a passing refer-
`ence to the paid affiliation with the school that permit-
`ted the placement of the banner. Also, while license
`plates are required on all motor vehicles, schools are
`not required to have banner ad programs, nor are busi-
`nesses required to advertise on school fences.
`
`The danger of expanding Walker’s limited holding
`
`that government-issued license tags are government
`speech was cogently framed by Justice Alito in his dis-
`sent (joined by Chief Justice Roberts, and Justices
`Scalia and Kennedy) in Walker:
`The Court’s decision passes off pri-
`
`vate speech as government speech and,
`in doing so, establishes a precedent that
`threatens private speech that govern-
`ment finds displeasing. Under our First
`Amendment cases, the distinction between
`government speech and private speech is crit-
`ical. The First Amendment “does not regulate
`government speech,” and therefore when gov-
`ernment speaks, it is free “to select the views
`that it wants to express.” Pleasant Grove City
`v. Summum, 555 U.S. 460, 467-468, 129 S. Ct.
`1125, 172 L.Ed.2d 853 (2009). By contrast,
`“[i]n the realm of private speech or expression,
`government regulation may not favor one
`speaker over another. Rosenberger v. Rector
`and Visitors of Univ.of Va., 515 U.S. 819, 828,
`115 S. Ct. 2510,132 L.Ed.2d 700 (1995). Un-
`fortunately, the Court’s decision categorizes
`private speech as government speech and
`
`
`
`

`
`10
`
`thus strips it of all First Amendment protec-
`tion. . . .
`. . . Suppose that a State erected elec-
`
`tronic billboards along its highways.
`Suppose that the State posted some gov-
`ernment 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 con-
`stitutional?
` What if a state college or university
`did the same thing with a similar bill-
`board or a campus bulletin board or
`dorm list serve? What if it allowed pri-
`vate 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 discrimina-
`tion would violate the First Amendment?
`I hope not, but the future uses of today’s
`precedent remain to be seen.
`
`135 S. Ct. at 2254-56 (emphasis added).
`
`The decision below merits review because it will
`
`have broad ramifications, enabling the government to
`convert private speech in a limited or nonpublic forum
`into government speech unprotected from censorship,
`viewpoint or speaker-identity discrimination, and
`
`
`
`

`
`11
`
`unconstitutional conditions.1 The decision affords the
`government unbridled discretion over both speech and
`speakers merely by adding a meaningless and sham
`seal of approval or, in this case, a “thank you” message
`(i.e., “Partner in Excellence”). In fact, the circuit court’s
`reasoning offers a roadmap for turning every sign on
`government property into government speech by add-
`ing a perfunctory seal of approval, and it could be ex-
`tended even to spoken words in a nonpublic forum –
`e.g., a sign at the entrance to the building stating that
`the government has approved the speaker.
`
`In short, the circuit court’s decision represents a
`
`stark departure from the narrowly-defined realm of
`government speech delineated in Walker and permits
`the government to avoid any constitutional scrutiny of
`its actions merely by affixing a meaningless affiliation
`to private speech and advertising.
`
`
`
`
`
`
`1 Even under the federal government’s crimped view of the
`unconstitutional conditions doctrine taken in its Petition for Writ
`of Certiorari in In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), petition
`for cert. filed sub nom. in Lee v. Tam, (April 20, 2016) (No. 15-
`1293), it conceded that the “doctrine would apply, for example, if
`the Lanham Act denied the benefits of trademark registration to
`persons who had engaged in specified speech or conduct outside
`the registration program (e.g., if respondent’s use of THE
`SLANTS as a mark in commerce rendered him ineligible to regis-
`ter other marks).” Petition for Writ of Certiorari filed in Lee v.
`Tam, No. 15-1293, at 17. So, too, has Mech been denied the bene-
`fits of the banner ad program because he engaged in disfavored
`speech or conduct outside the banner ad program.
`
`
`
`

`
`12
`
`II. THE DECISION BELOW CONFLICTS WITH
`WALKER AND IN RE TAM, 808 F.3D 1321
`(FED. CIR. 2015), PETITION FOR CERT.
`FILED SUB NOM. IN LEE V. TAM, (APRIL
`20, 2016) (NO. 15-1293) WHICH LIMIT THE
`APPLICABILITY OF THE GOVERNMENT
`SPEECH DOCTRINE.
`The Eleventh and Federal Circuits are split on
`
`whether attaching a government label to retail mar-
`keting material renders the speech governmental. The
`Eleventh Circuit held that it did; the Federal Circuit
`held to the contrary.
`
`The decision below conflicts with this Court’s de-
`
`cision in Walker and circuit courts that limit the
`applicability of the government speech doctrine to sit-
`uations where: 1) the government has long been using
`the speech as a means of expressing a government
`message; 2) the speech is closely identified in the pub-
`lic’s mind with the government; and 3) the government
`controls the message.
`
`In In re Tam, 808 F.3d 1321, the Federal Court of
`
`Appeals, sitting en banc, rejected the government’s ar-
`gument that trademark registration “and the accoutre-
`ments of registration – such as the registrant’s right to
`attach the ® symbol to the registered mark, the mark’s
`placement on the Principal Register, and the issuance
`of a certificate of registration – amount to government
`speech.” Id. at 1343.
`
`“The logical extension of the government’s argu-
`
`ment is that these indicia of registration convert the
`
`
`
`

`
`13
`
`underlying speech into government speech unpro-
`tected by the First Amendment. Thus, the government
`would be free, under this logic, to prohibit the . . . reg-
`istration of any work deemed immoral, scandalous, or
`disparaging to others. This sort of censorship is not
`consistent with the First Amendment or government
`speech jurisprudence.” Id. at 1346.
`
`“The vast array of private trademarks are not cre-
`
`ated by the government, owned . . . by the government,
`sized and formatted by the government, immediately
`understood as performing any government function
`(like unique, visible vehicle identification), aligned
`with the government, or (putting aside any specific
`government secured trademarks) used as a platform
`for government speech. There is simply no meaningful
`basis for finding that consumers associate registered
`private trademarks with the government.” Id.
`
`Accordingly, the court held that trademark pro-
`
`cessing “no more transforms private speech into gov-
`ernment speech than when the government issues
`permits for street parades, . . . grants . . . licenses, or
`records property titles, birth certificates, or articles of
`incorporation. To conclude otherwise would transform
`every act of government registration into one of gov-
`ernment speech and thus allow rampant viewpoint
`discrimination. When the government registers a
`trademark, it regulates private speech. It does not
`speak for itself.” Id. at 1348.
`
`The Federal Circuit’s reasoning is pertinent to
`
`Mech’s argument that the private advertisements that
`
`
`
`

`
`14
`
`appear on school fences are not created by the schools,
`owned, designed or formatted by them, understood as
`performing any school function, or used as a platform
`for government speech, and thus are not government
`speech. Accordingly, the Eleventh Circuit’s decision in
`this case is in conflict with In Re Tam, which finds
`speech of a similar nature to constitute private, not
`government, speech. Certiorari review is therefore
`appropriate to resolve the split in the circuits on this
`important constitutional issue.
`
`Additionally, given the significant impact of the
`
`government speech doctrine on the protections other-
`wise afforded private speech, certiorari review is war-
`ranted on that independent basis.
`
`---------------------------------  ---------------------------------
`
`CONCLUSION
`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-estab-
`lished constitutional jurisprudence in the free speech
`realm, by allowing the School Board to rubber stamp
`traditionally private speech and thereby strip pro-
`tected expression of fundamental First Amendment
`safeguards.
`
`The petition for certiorari should be granted to re-
`
`solve the circuit court split and to clarify the limits of
`Walker. If this Court grants certiorari in In re Tam,
`
`
`
`

`
`15
`
`then at the very least, this case should be held for dis-
`position in light of In re Tam. If In re Tam is affirmed,
`the Court should grant this petition, vacate and re-
`mand.
`
`Respectfully submitted,
`
`LAWRENCE G. WALTERS, ESQ.
`WALTERS LAW GROUP
`195 West Pine Avenue
`Longwood, Florida 32750
`Telephone: 407.975.9150
`Facsimile: 407.774.6151
`larry@firstamendment.com
`
`JAMES K. GREEN, ESQ.
`Counsel of Record
`JAMES K. GREEN, P.A.
`222 Lakeview Avenue
`Suite 1650, Esperante
`West Palm Beach, Florida 33401
`Telephone: 561.695.2029
`Facsimile: 561.655.1357
`jkg@jameskgreenlaw.com
`Attorneys for Petitioner
`DATED: May 18, 2016
`
`
`
`

`
`App. 1
`
`[PUBLISH]
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE ELEVENTH CIRCUIT
`-----------------------------------------------------------------------
`No. 15-10778
`-----------------------------------------------------------------------
`D.C. Docket No. 9:13-cv-80437-KAM
`DAVID BENOIT MECH,
`d.b.a. The Happy/Fun Math Tutor,
`Plaintiff-Appellant,
`
`versus
`SCHOOL BOARD OF PALM
`BEACH COUNTY, FLORIDA,
`
`Defendant-Appellee.
`-----------------------------------------------------------------------
`Appeal from the United States District Court
`for the Southern District of Florida
`-----------------------------------------------------------------------
`(November 23, 2015)
`Before MARCUS, WILLIAM PRYOR, and JILL PRYOR,
`Circuit Judges.
`
`WILLIAM PRYOR, Circuit Judge:
`
`The Supreme Court once predicted that “[t]here
`
`may be situations in which it is difficult to tell whether
`a government entity is speaking on its own behalf or is
`providing a forum for private speech.” Pleasant Grove
`
`
`
`

`
`App. 2
`
`City v. Summum, 555 U.S. 460, 470, 129 S. Ct. 1125,
`1132 (2009). This appeal presents one of those situa-
`tions. David Mech complains that the School Board of
`Palm Beach County, Florida, violated his constitu-
`tional right to free speech, U.S. Const., amends. I, XIV,
`when three of its schools removed banners for Mech’s
`tutoring business from their fences. The schools re-
`moved the banners after they discovered that Mech’s
`tutoring business shares a mailing address with his
`pornography business. The district court entered sum-
`mary judgment against Mech because the schools did
`not remove the banners based on their content. We af-
`firm, but on a different ground. We conclude that the
`Free Speech Clause of the First Amendment does not
`protect Mech because the banners are “government
`speech.” Summum, 555 U.S. at 467.
`
`
`
`I. BACKGROUND
`
`David Mech has a unique resume. He provides a
`math tutoring service in Palm Beach County under the
`name “The Happy/Fun Math Tutor.” He has a bache-
`lor’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. He has performed in
`hundreds of pornographic films. And he owns Dave
`Pounder Productions LLC, a company that formerly
`produced pornography. The Happy/Fun Math Tutor
`
`
`
`

`
`App. 3
`
`and Dave Pounder Productions share a mailing ad-
`dress in Boca Raton, Florida.
`
`In 2008, the School Board – which oversees the
`
`Palm Beach County School District – adopted a pilot
`program for its schools to hang banners on their fences
`to recognize the sponsors of school programs. The ban-
`ner program was codified in 2011 as Policy 7.151,
`“Business Partnership Recognition – Fence Screens.”
`See Sch. Bd. Policies 7.151, http://www.boarddocs.com/
`fl/palmbeach/Board.nsf/goto?open&id=9R8NDB5ADOA1#.
`Subsection (1) of the Policy states its purpose:
`Purpose. – The District recognizes that ath-
`letic sponsors and other business partners
`provide a vital role in sponsorship of key pro-
`grams within our schools. As such, schools
`have increased needs to visibly recognize
`these partners in the community. In the inter-
`ests of community aesthetics and in consider-
`ation of local ordinances that may prohibit or
`restrict banners and advertising, these uni-
`form standards have been developed. By per-
`mitting the recognition of business partners
`on school campuses, it is not the intent of the
`School Board to create or open any Palm
`Beach County School District school, school
`property or facility as a public forum for ex-
`pressive activity, nor is it the intent of the
`School Board to create a venue or forum for
`the expression of political, religious, or contro-
`versial subjects which are inconsistent with
`the educational mission of the School Board or
`which could be perceived as bearing the im-
`primatur or endorsement of the School Board.
`
`
`
`

`
`App. 4
`
`Id. at 7.151(1). “Because the [banners] are not consid-
`ered advertising,” contributions by the sponsors are
`treated as “donations.” Id. at 7.151(2)(b).
`
`The Policy imposes several conditions on the ban-
`
`ners that can be displayed. The principals of each
`school must “use their discretion in selecting and ap-
`proving business partners that are consistent with the
`educational mission of the School Board, District and
`community values, and appropriateness to the age
`group represented at the school.” Id. at 7.151(2)(h). The
`Policy requires the banners that are visible from the
`road to use a uniform size, color, and font; to include a
`message thanking the sponsor; and to forego photo-
`graphs and large logos. See id. at 7.151(3).
`
`Beginning in 2010, Mech inquired about display-
`
`ing 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 Ra-
`ton Community Middle School. Representatives from
`the schools encouraged Mech to apply: Mech special-
`izes 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 high
`school requires banners to be printed in school colors,
`and all of the banners include the message “[School In-
`itials] Partner in Excellence.” The banners can include
`only the name, phone number,

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