Porn Star Turned Tutor Loses Banner Squabble

(CN) - A Florida school district had the right to take down banners for a former porn star's tutoring business, the 11th Circuit ruled.

"David Mech has a unique resume," U.S. Circuit Judge William Pryor said, writing for the three-judge panel.

Mech works as a math tutor in Palm Beach County under the name "The Happy/Fun Math Tutor." He is currently enrolled in a Ph.D. program at Florida Atlantic University, and has taught math at Palm Beach State College.

He is also a retired porn star. Mech has performed in hundreds of pornographic films and owns Dave Pounder Productions, a company that formerly produced porn, and which shares an address with The Happy/Fun Math Tutor.

The Palm Beach School Board adopted a pilot program in 2008 allowing its schools to hang banners on their fences to recognize the sponsors of school programs.

Mech inquired about participating in the program in 2010, and was encouraged to apply.

He donated $250-$650 each to hang a banner at three district schools. The banner included only the name, phone number, web address and logo of The Happy/Fun Math Tutor.

However, the school soon took the banners down after parents discovered Mech's connection to Dave Pounder Productions.

Mech sued, alleging that the school's actions violated his First Amendment rights, but a federal judge ruled for the school, finding that the banners were not removed for their content, but due to the common ownership of Mech's companies.

The 11th Circuit affirmed Monday, but on other grounds.

The court primarily cited the Supreme Court's decision in Walker v. Texas Division, Sons of Confederate Veterans, in finding that the school banners did not constitute private speech in a limited public forum.

Rather, the banners are governmental speech, Pryor said.

"Like the word 'TEXAS' on the specialty license plates in Walker, each banner bears the school's initials and is printed in school colors. And the banners identify the sponsor as a 'Partner in Excellence' with the school. ... The word 'partner' suggests that the sponsor has a close relationship with the school - i.e., that the sponsor is an 'associate' or is 'engaged together in the same activity, occupation,'" the 18-page opinion states.

Mech claimed the banners should be treated as advertisements, because other "partners" provide services totally unrelated to the school, such as Maggiano's Italian restaurant, Atlas Roofing, and The Journey Church.

But the Atlanta-based appeals court disagreed.

"Mech misunderstands the nature of the government message conveyed by the banners. The banners for 'Partners in Excellence' are the schools' way of saying 'thank you.'"

The fact that Mech's tutoring services are related to the schools' educational mission makes it more likely that observers would believe the school was endorsing his services, the judges said.

In addition, unlike private advertisements, Mech did not design the banners. Each one is printed in school colors and subject to uniform design requirements imposed by the school district.

"Unlike an advertisement on a city bus, the banners are 'formally approved by and stamped with the imprimatur of [the schools].' Observers would reasonably interpret them as 'conveying some message on the [school's] behalf,'" Pryor said. "That the sponsors 'pay annual fees in order to display [the banners]' does not alter this conclusion."

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