Free-Speech Groups: Ex-Porn Star's Case a First Amendment Disaster

Free-Speech Groups: Ex-Porn Star's Case a First Amendment DisasterEXPAND
Courtesy of David Mech

Free speech, attorney Gary Edinger says, is built "on the fringes of society... the KKK, communists, strip clubs."

That, Edinger adds, is why he supports David Mech, a former porn star who now works as a math tutor in Boca Raton. Mech, who directed more than 100 adult films under the moniker "Dave Pounder," is currently asking the U.S. Supreme Court to decide a longstanding legal fight. He recently filed an amicus brief on behalf of multiple free-speech advocacy groups.

In May 2013, Mech sued the Palm Beach County School Board after it ripped down an advertisement he'd placed at Spanish River High School. It publicized his tutoring business — he calls himself the "Happy Fun Math Tutor" — in big, plain letters. The sign stood for a few years before a few parents apparently complained, and Spanish River removed the sign, though Mech paid $1,750 to put it there.

Mech sued the school district but lost in 2014, both in trial court and on appeal. The courts ruled that since the ads were placed on public property, they constituted "government speech," which stripped them of First Amendment protection. "This is a really dangerous expansion of government speech," he says. "They're basically saying the First Amendment is flushed down the toilet." Mech is asking the court to place limits on whether private advertising can be labeled "government speech."

As it turns out, a trio of First Amendment rights groups, all of whom deal regularly with sexual rights cases, agree with him. Earlier this month, the groups — the First Amendment Lawyers Association, one of the most prominent First Amendment rights groups in the nation, along with the Free Speech Coalition, a trade group for the adult entertainment industry, and the Woodhull Freedom Foundation, a nonprofit sexual rights group — filed an amicus brief supporting Mech's case. The U.S. Supreme Court agrees to hear fewer than five percent of the cases it is presented with; the amicus brief improves the chance the nation's highest court will hear the case.

The advocates are worried that if Palm Beach County schools are allowed to pick and choose who gets to advertise on their property, it would give the government carte blanche to censor people on public property. "The 'government speech' doctrine represents a dangerous exception to the First Amendment because it has the potential to cripple speech whenever citizens interact with the government," the group writes.

The brief goes on: "There was nothing obviously offensive about [Mech's] advertisements. Neither were they much different in terms of content or appearance than the other advertisements which the School Board had approved over the years."

Edinger, who coauthored the brief, says "government speech" is not actually defined that well. If Mech wins, it would set an important precedent in free-speech law, he says.

"The 'government speech' doctrine has a place," he says. "It makes sense that the things the government says wouldn't be held to the same standards as a private person. But this particular case has expanded 'government speech' dramatically."

Elsewhere, Mech's case also caught the attention of the influential "SCOTUSblog," which named his case its "Petition of the Day" on June 20.

Via phone, Mech used this analogy to explain the case to New Times:  "Say you're on a federal highway," he began. "Can the government say, 'We'll only allow 'pro-choice' billboards, but not 'pro-life?'"

Read the entire amicus brief for yourself here:


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