Mech v. Sch. Bd. of Palm Beach Cnty.

• Decision Date: 23 November 2015
• Docket Number: No. 15–10778.,15–10778.
• Citation: 806 F.3d 1070
• Parties: David Benoit MECH, d.b.a. The Happy/Fun Math Tutor, Plaintiff–Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

806 F.3d 1070

David Benoit MECH, d.b.a. The Happy/Fun Math Tutor, Plaintiff–Appellant,

v.SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA, Defendant–Appellee.

No. 15–10778.

United States Court of Appeals, Eleventh Circuit.

Nov. 23, 2015.

James K. Green, James K. Green, PA, West Palm Beach, FL, Lawrence G. Walters, Walters Law Group, Longwood, FL, for Plaintiff–Appellant.

Shawntoyia N. Bernard, West Palm Beach, FL, Kalinthia R. Dillard, Office of General Counsel, West Palm Beach, FL, for Defendant–Appellee.

Opinion

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 City v. Summum,555 U.S. 460, 470, 129 S.Ct. 1125, 1132, 172 L.Ed.2d 853 (2009). This appeal presents one of those situations. David Mech complains that the School Board of Palm Beach County, Florida, violated his constitutional 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 removed the banners after they discovered that Mech's tutoring business shares a mailing address with his pornography business. The district court entered summary judgment against Mech because the schools did not remove the banners based on their content. We affirm, 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, 129 S.Ct. 1125.

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 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. 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 and Dave Pounder Productions share a mailing address 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 banner program was codified in 2011 as Policy 7.151, “Business Partnership Recognition—Fence Screens.” SeeSch. Bd. Policies 7.151, http://www.boarddocs.com/fl/palmbeach/Board.nsf/goto?open&id=9R8NDB5AD0Al#. Subsection (1) of the Policy states its purpose:

Purpose.—The District recognizes that athletic sponsors and other business partners 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 interests of community aesthetics and in consideration of local ordinances that may prohibit or restrict banners and advertising, these uniform standards have been developed. By permitting 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 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). “Because the [banners] are not considered advertising,” contributions by the sponsors are treated as “donations.” Id.at 7.151(2)(b).

The Policy imposes several conditions on the banners that can be displayed. The principals of each school must “use their discretion in selecting and approving 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 photographs and large logos. See id.at 7.151(3).

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 high school requires banners to be printed in school colors, and all of the banners 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.

Mech complied with these requirements, and the schools hung the banners displayed below on their fences.

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.”

Mech sued the School Board for violations of the First and Fourteenth Amendments and breach of contract. Both parties moved for summary judgment, and the district court ruled in favor of the School Board. The district court ruled that the schools did not abridge the First Amendment because they removed the banners due to the common ownership of Mech's companies, not the content of the banners. The district court also rejected Mech's claims under the Fourteenth Amendment and declined to exercise supplemental jurisdiction over his claim for breach of contract.

On appeal, Mech challenges only the dismissal of his claim under the First Amendment. After the parties submitted their appellate briefs, the Supreme Court decided Walker v. Texas Division, Sons of Confederate Veterans, Inc.,––– U.S. ––––, 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015). Before oral argument, we ordered the parties to provide supplemental briefing on whether Walkeraffects this case.

II. STANDARD OF REVIEW

“We review a summary judgment de novo.” Zibtluda, LLC v. Gwinnett Cty. ex rel. Bd. of Comm'rs,411 F.3d 1278, 1281 (11th Cir.2005). Summary judgment is appropriate if, viewing the record in the light most favorable to Mech, “there is no genuine dispute as to any material fact” and the School Board “is entitled to judgment as a matter of law.” Id.(quoting Fed.R.Civ.P. 56). We can affirm a summary judgment “on any alternative ground fairly supported by the record.” Rozar v. Mullis,85 F.3d 556, 564 (11th Cir.1996).

III. DISCUSSION

The parties disagree about how to classify the school banners. According to Mech, the banners for The Happy/Fun Math Tutor are private speech in a limited public forum. As such, the First Amendment forbids the School Board from acting unreasonably or engaging in viewpoint discrimination. See Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez,561 U.S. 661, 679 n. 11, 130 S.Ct. 2971, 2984 n. 11, 177 L.Ed.2d 838 (2010). The School Board argues that the removal of the banners was reasonable and viewpoint neutral. It also argues, in the alternative, that the banners are government speech.

If the banners are government speech, Mech loses. The Free Speech Clause of the First Amendment “restricts government regulation of private speech; it does not regulate government speech.” Summum,555 U.S. at 467, 129 S.Ct. at 1131. 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, 146 L.Ed.2d 193 (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, 140 L.Ed.2d 875 (1998)). Government speech is regulated primarily by “the political process,” not the Constitution. Southworth,529 U.S. at 235, 120 S.Ct. at 1357. Because characterizing speech as government speech “strips it of all First Amendment protection” under the Free Speech Clause, Walker,135 S.Ct. at 2255(Alito, J., dissenting), we do not do so lightly.

The Supreme Court has not articulated a precise test for separating government speech from private speech, but its recent decision in Walkerconcluded that the specialty license plates for motor vehicles in Texas were government speech based on three factors. First, “the history of license plates” suggests “they long have communicated messages from the States.” Id.at 2248(majority opinion). States have featured graphics and slogans on license plates since the early twentieth century, and Texas has approved specialty license plates “for decades.” Id.Second, reasonable observers would conclude that Texas “agree[s] with the message displayed” on specialty license plates. Id.at 2249. Each plate bears the name “TEXAS” at the top; and Texas issues the plates, regulates their disposal, and owns the...