Woodhull Files Amicus Brief at High Court in Pounder Case

Woodhull Files Amicus Brief at High Court in Pounder Case
Rhett Pardon

WASHINGTON — Joining the Free Speech Coalition and the First Amendment Lawyers Association in friend-of-the-court briefs, the Woodhull Freedom Foundation today filed its own amicus brief at the U.S. Supreme Court in support of a petition for review by Dave Pounder.

Last month, Pounder filed a challenge at the U.S. Supreme Court claiming his civil rights were violated when a school district terminated his contract to advertise educational tutoring services on school fences.

Pounder, a former adult performer and director, was fingered by at least one parent in the Palm Beach School District for his past work in porn.

Parents voiced "great concern over the potential for the students using your tutoring services to become subjected to your adult entertainment business," Palm Beach School District General Counsel Sheryl Wood wrote in a letter to Pounder after they pulled down banners at three schools touting his math tutoring company targeting sixth graders.

Woodhull, in a release today, said the banners had been displayed for some time and there were no issues with Mech’s tutoring.

“In fact, there was nothing about the banners that raised concerns. It was, instead, that one parent discovered that Dave Pounder Productions used the same mailing address as Happy/Fun Math Tutor—and using the now-well-established — if unwritten — doctrine of ‘porn cooties,’ anything that’s in the vicinity of, or in any way connected to, an adult performer or production company is seen as having been contaminated by that proximity,” Woodhull said in the release. “To be clear – no one has claimed that children being tutored by Mech saw any adult material, or even knew of his connection to adult.”

Pounder lost the state case and later appealed to the 11th U.S. Circuit Court of Appeals, where he lost again.

The 11th Circuit said in its ruling that the contents of the signs were considered "government speech," and not free speech, which is "regulated primarily through the political process, not the U.S. Constitution."

Pounder today told XBIZ: "I am thankful to FALA, FSC, and Woodhull for taking an interest in my case.  I hope more amici come on board if this case progresses to the merits stage."

"As stated in the brief, there is no question that the government has a louder voice than most in the marketplace of ideas, and that the government can speak for itself and resort to the same tools that are available to private citizens to dispel confusion," Pounder said. "The Supreme Court appears to agree with that argument.

"For example, in Legal Services Corp. v. Velazquez, the government argued that its provisioning of free attorneys to indigent LSC clients was government speech, but the court instead held that it was private speech because the government could still speak through its own attorney.  Similarly, there is nothing preventing the school board from speaking its message through its own banner(s). 

"Ad-hoc and capricious censorship of private advertisements in retaliation for prior constitutionally-protected speech should never be permitted in a free society, which is why the unconstitutional conditions doctrine exists. The solution to distasteful speech is always more speech, never censorship.

"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,” Pounder said. “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.” 

Woodhull is represented in this case by First Amendment attorney Gary Edinger, the principal author of the brief. Woodhull’s general counsel, Lawrence Walters, along with attorney Jim Green, represents Mech in the case.

Walters today said, "We're thrilled to have Woodhull, FSC and FALA supporting our petition in this important case."

"Their brief, filed by Gary Edinger, highlights the danger in labeling a message 'government speech,' thereby stripping both the message and the author of all constitution protection," Walters told XBIZ. "We hope this amicus support will help convince the court to grant review of this significant First Amendment case."

In Woodhull’s brief, the question posed to the U.S. Supreme Court is, “Whether the 11th Circuit improperly expanded the ‘government speech’ exception to the First Amendment to include circumstances where the government was not itself a ‘speaker’ but had clearly discriminated against private speech on the basis of content.”

Woodhull’s brief goes on to explain, “The ‘government speech’ doctrine at issue in this case represents a rare instance where the courts afford no First Amendment protection whatsoever despite the fact that free speech and communication are clearly involved.”

Woodhull argues, “The ‘government speech’ doctrine represents a dangerous exception to the First Amendment because it has the potential to cripple speech whenever citizens interact with government. In our complex society, government is everywhere: as landowner, the source of funding and contract rights, and as the indispensable partner in a variety of public-private joint ventures. In such a world, the protections of the First Amendment are more important than ever as a bulwark against government censorship.”

“In Supreme Court jurisprudence, very few forms of speech have been deemed exempt from First Amendment protection. These include, according to the brief, “obscenity, state secrets in time of war, and possibly ‘fighting words’,” with the brief noting, “The doctrine of ‘government speech’ is a relatively new addition to this list,” and adds that, “It is also the category which poses the greatest risk of outright censorship of speech which most observers would otherwise conclude is otherwise firmly within the ambit of the First Amendment.”

Woodhull said the brief questions why the dispute between Mech and the school board couldn’t be resolved by simply looking at the board’s policies regarding who can advertise on its fences, noting, “It also seems inappropriate to allow First Amendment protections to hinge on whether a citizen might be confused as to the identity of the speaker or might believe that government endorses a particular speaker when such is not the case. (The school board had indeed argued that allowing Mech’s signage was tantamount to endorsing adult entertainment.)"

“There was nothing obviously offensive about the petitioner’s advertisements,” Woodhull said in its brief. “Neither were they much different in terms of content or appearance than the other advertisements which the school board had approved over the years. The school board had not adopted a policy that math tutors were bad—or even, for that matter, an express policy discouraging pornographic films. In past years, this case would have been treated as a quintessential First Amendment claim.

"The court would have first determined whether the school district had created a limited public forum for advertising on its fences. Had the facts supported that conclusion, the court would then have considered whether the school board had engaged in content-based discrimination.”

“Traditional First Amendment analysis must apply in all cases except those narrow instances where the government is actively communicating a particular message for a legitimate public purpose,” the brief concludes. “The Court should use this case as an opportunity to narrow the government speech doctrine and reassert the primacy of the First Amendment.”

Ricci Levy, Woodhull’s president and CEO, said; “Mech appears to be an obvious target of discrimination based on his involvement in the adult industry.”  

“Woodhull is proud to join with the First Amendment Lawyers Association and the Free Speech Coalition in urging the court to consider this important case involving the right to sexual expression,” Levy said.

No longer in porn, Pounder held the slot as president of Dave Pounder Productions, which produced reality-based adult movies from 2003-2010. He also served as an executive with Daydream Entertainment Group, which had paysites and affiliate programs, from 2003-2008.

Pounder went on to direct more than 100 titles for companies including PimpRoll, Hundies, Top Bucks, Python, PayServe, BlazingBucks, Kink.com, Mayors Money, RageCash, TripleXCash and BangBros.com.

In 2014 he attempted to enter the political arena last year by running for school board, but he was defeated by the incumbent.

View Woodhull brief