DAVID BENOIT MECH, Plaintiff/Appellant, SCHOOL … file15-10778-c in the united states court of...

15-10778-C

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

DAVID BENOIT MECH, d/b/a THE HAPPY/FUN MATH TUTOR,

Plaintiff/Appellant,

vs.

SCHOOL BOARD OF PALM BEACH COUNTY,

Defendant/ Appellee.

CASE NO: 15-10778-C

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

DC Case Number: 13-cv-80437

SUPPLEMENTAL BRIEF OF APPELLANT

James K. Green, Esq. JAMES K. GREEN, P.A. Suite 1650, Esperante 222 Lakeview A venue West Palm Beach, FL 33401 Telephone: (561) 659-2029 Facsimile: (561) 655-1357 Florida Bar No: 229466 j [email protected]

Attorneys for Appellant

Lawrence G. Walters, Esq. WALTERS LAW GROUP 195 W. Pine Ave Longwood, FL 327 50 Telephone:800.530.8137 Facsimile: 407.774.6151 [email protected]

Case: 15-10778 Date Filed: 09/08/2015 Page: 1 of 13

AMENDED CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Appellant, David Benoit Mech, d/b/a The Happy/Fun Math Tutor,

certifies and adopts the lists of the trial judge(s), all attorneys, persons,

associations of persons, firms, partnerships, or corporations (noted with its

stock symbol if publicly listed) that have an interest in the outcome of the

particular case on appeal, including subsidiaries, conglomerates, affiliates,

and parent corporations, and other identifiable legal entities related to a

party, included in Appellant's Certificate oflnterested Persons filed on April

10, 2015, Appellee's Certificate ofinterested Persons initially filed on June

4, 2015.

TABLE OF CONTENTS

Amended Certificate of Interested Persons and Corporate Disclosure Statement .................................................................................................................. ii

Table of Contents ..................................................................................................... ii

Table of Citations ............................................................................................... .iii-iv

Argument .............................................................................................................. 1-7

Conclusion ............................................................................................................... 8

Certificate of Service ............................................................................................... 9

11


TABLE OF CITATIONS

Bd. of Regents v. Southworth, 529 U.S. 217, 235 (2000) ............................................................................... 6

Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Call. of the Law v. Martinez,

561 U.S. 661 (1982) ....................................................................................... 5

City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. at 758 ............................................................................................ 5,6

Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985) ............................................................................. 5

Forsyth County, Ga., v. Nationalist Movement, 505 U.S. 123, 133 (1992) .............................................................................. 6

Lehman v. Shaker Heights, 418 u.s. 298 (1974) ...................................................................................... 4

Perry Ed. Ass 'n v. Perry Local Educators's Assn., 460 U.S. 37 (1983) ..................................................................................... 4,5

Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009) .............................................................................. 7

Reno v. Am. Civil Liberties Union, 521 u.s. 844, 870-71 (1997) ......................................................................... 6

Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 154-155 (1969) ....................................................................... 6

Snyder v. Phelps, 562 U.S. 443, 453 (20 11) .............................................................................. 7

Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015) ............................................................................. 1,5,8

iii


Internet link:

https:/ /www .google.com/search?g=banners+on+school+fence&es sm= 122&t bm=isch&tbo=u&source=univ&sa= X&ved=OCDwQsARgFQo TCJ aZ8K vh08 cCFdOyHgodXeQNyQ ...... ........ .. ...... ................ .......................... ........................ .... 2

IV


I. QUESTION PRESENTED

On August 28, 2015, the Court entered the following order:

The court directs the parties in this case to file simultaneous supplemental briefs to address the impact on this case of the recent decision of the Supreme Court in Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (20 15).

II. ARGUMENT

Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct.

2239 (2015), confirms that Mech's banner conveys private speech in a limited

public forum or nonpublic forum and is therefore protected by the First

Amendment from censorship through unbridled discretion.

Walker applied to specialty license plates the well-established rule that the

freedom of speech clause of the First Amendment limits government power over

private speech on government property, but does not impose any limits on

government speech. The Court concluded that specialty automobile license plates

conveyed government speech rather than private speech for several reasons.

First, the Court inquired into the history of speech displayed on automobile

license plates, concluding that "the history of license plates shows that, insofar as

license plates have conveyed more than state names and vehicle identification

numbers, they long have communicated messages from the States." Id. at 2248.

By contrast, neither evidence in the record below nor common practice suggest that

business advertising banners hung from school fences have "long communicated"

1


government messages. To the contrary, they are self-evidently the expression of

the identified business. A Google search for <banners on school fence> produces a

link entitled "Images for banners on school fence" '

https://www.google.com/search?q=banners+on+school+fence&es_sm=122&tbm=i

sch&tbo=u&source=univ&sa= X&ved=OCDwQsARqFQoTCJ aZSK vh08cCF dOyH

godXeQNyQ (last visited August 31, 20 15) with dozens of advertising banners that

convey no government message. The record below contains no banners reflecting

any governmental messages. This case does not involve governmental speech.

Second and crucially, the Court noted that "[t]he governmental nature of

automobile license plates is clear from their faces" since they contain the name of

the state and must be displayed on every vehicle. 135 S. Ct. at 2248. Because

"Texas license plates are, essentially, government IDs" whose display is required

by the state, the reasonable observer understands their message to be government

speech. Id. at 2249. Thus, license plates are government speech that endorses the

plate's message; as the Court noted, a private speaker can display his message "in

larger letters on a bumper sticker right next to the plate." Id. By contrast, the

advertising banners at issue in no way serve as government IDs. They identify the

private speaker; they convey the private speaker's identity and contact information;

their location value lies in their unique ability to reach the relevant target audience.

Although each contains the school initials and the phrase "Partner in Excellence,"

2


Appellee offered no evidence to suggest it ever conducted any assessment into the

quality of goods or services provided, much less that in doing so, it screened

potential partners for excellent rather than above average, average, or below

average serv1ces. In sum, nothing about the banners conveys the appearance -

much less the reality - of government speech. Simply stated, they are private

advertisements on a government fence.

Third, the Court observed that Texas controlled the minutiae of its

mandatory government ID license plate, including "design, typeface, color, and

alphanumeric pattern," and by doing so on a plate that prominently features the

state's name but no driver/owner information, "allows Texas to choose how to

present itself' to the public. Id. at 2249. Again, the contrast is evident. Although

Appellee preapproves banners to determine whether they fall within the formal

requirements of its policy, it submitted no evidence to suggest that it does so to

"present itself' or its message to the public. The banner contains the website

address (URL) and telephone number for the Happy/Fun Math Tutor but no school

contact information, and by its terms invites the reader to do business with the

advertiser. See Doc. 48-4, Attachment 2, at 27 (Approved Proofs of Plaintiffs

Math Tutoring Banners that Were Removed by the Defendants (Exhibit D):

3


® T~e Happy/Fun Mat~ Tutor 561.459.2058

www. HappyFunMathTutor.com

OMS Partner in Excellence ·- .. ... _____ .., .. ·--· .... _ ......... -.. .. --.. ..-. ··- ·--· · - - .... f'4 < ......

@ ne Happy/Fun Mat~ Tutor 561.459.2058

www.HappyFunMathTutor.com

SRCHS Partner in Excellence

Put simply, the banners are advertising banners, and as such, are private speech. 1

In sum, advertising banners such as Mech's are not "government-mandated,

government-controlled, and government-issued Ids that have traditionally been

used as a medium for government speech." 135 S. Ct. at 2249. Rather, they are

private speech on government property, and as such remain subject to forum

analysis, akin to advertisements on public buses, Lehman v. Shaker Heights, 418

U.S. 298 (1974), or a school's internal mail system, Perry Ed. Ass 'n v. Perry Local

Educators Assn., 460 U.S. 37 (1983). To be precise, by opening the fences to

"partners" who wish to place advertisements, the school has either created a

1 Compare Mech's advertising banners with other, non-school-related advertising banners in fn. 3 infra.

4


limited public forum or a nonpublic forum, with identical First Amendment

constraints - the government may establish reasonable restrictions consistent with

the purpose of the forum (here advertising, with a prohibition against alcohol and

tobacco) as long as they are viewpoint neutral, but may not lodge unbridled

discretion in officials over the content of the banners.2

The school's banner licensing program facially violates the First

Amendment because it grants school officials unbridled discretion in determining

which private speech to permit or reject, as shown by the school's initial reliance

on the amorphous concept of community values. The Court has consistently

required licensing statutes regulating speech to include clear guidelines to ensure

that officials do not grant or deny permits in an ad hoc or discriminatory fashion.

In City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 757 (1988), the

Court stated:

2 Although Walker recognizes four forum classes -traditional, designated, limited, and nonpublic - the Court has not been consistent in its labeling, often identifying only three, but sometimes labeling the three as traditional, designated, and limited purpose, see Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Col!. of the Law v. Martinez, 561 U.S. 661 (1982), while at other times labeling the three as traditional, designated, and nonpublic. Perry Educ. Ass'n v. Perry Local Educators Ass 'n, 460 U.S. at 45-7; Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) ("control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral."). But the Court consistently has applied identical standards in assessing speech restrictions on what it sometimes calls limited purpose public forums and at other times calls nonpublic forums, rigorously prohibiting the exercise of unbridled discretion.

5


At the root of this long line of precedent is the time-tested knowledge that in the area of free expression a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.

The prohibition on unbridled discretion applies fully in any forum, because it can

potentially lead to viewpoint discrimination. See Bd of Regents v. Southworth,

529 U.S. 217, 235 (2000) (remanding question of access to nonpublic forum

because it was "unclear . . . what protection, if any, there is for viewpoint

neutrality"). As the Court has noted, "the absence of express standards makes it

difficult to distinguish, as applied, between a licensor's legitimate denial of a

permit and its illegitimate abuse of censorial power." City of Lakewood, 486 U.S.

at 758.

Furthermore, the Court has held that attempted governmental regulation of

unpopular or offensive speech violates the First Amendment. See Reno v. Am.

Civil Liberties Union, 521 U.S. 844, 870-71 (1997) (holding that the

Communications Decency Act's prohibitions on "indecent" and "offensive" speech

provoke uncertainty and undermine the statute's stated goal of protecting minors);

Forsyth County, Ga., v. Nationalist Movement, 505 U.S. 123, 133 (1992) (fmding

permitting fee ordinance tied to listeners' reaction to speech facially invalid in part

because "[n]othing in the law or its application prevents the official from

encouraging some views and discouraging others through the arbitrary application

offees"); Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 154-155 (1969)

6


(determining city commission's authority to regulate assembly based on "public

welfare, peace, safety, health, decency, good order, morals or convenience"

allowed it to "unwarrantedly abridge the right of assembly") (internal quotations

removed). See also Snyder v. Phelps, 562 U.S. 443, 453 (2011) ("Outrageousness"

liability standard for speech-based intentional infliction of emotional distress is

"highly malleable" and is likely to conceal forbidden viewpoint discrimination). 3

3 Even if this Court were to assume that the banner ads were governmental speech, "[t]his does not mean that there are no restraints on government speech .... The involvement of public officials in advocacy may be limited by law, regulation, or practice." Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009). See also id. at 481 (Stevens, J., concurring) ("Finally, recognizing permanent displays on public property as government speech will not give the government free license to communicate offensive or partisan messages. For even if the Free Speech Clause neither restricts nor protects government speech, government speakers are bound by the Constitution's other proscriptions, including those supplied by the Establishment and Equal Protection Clauses. Together with the checks imposed by our democratic processes, these constitutional safeguards ensure that the effect of today's decision will be limited."). The Equal Protection Clause protects Mech from exclusion since the schools allowed other prohibited categories of advertisers, including tobacco and alcohol establishments. Compare Doc. 48-4, Attachment 2, at 37. Examples of [Other] Advertising at Public Secondary Schools in Palm Beach County, FL (Ex. 1):

7


CONCLUSION

Mech's banners are clearly private speech displayed within a limited public

forum or a nonpublic forum. Walker does not change the analysis. Thus, the

Court should reverse the District Court's Order on Summary Judgment, enter

summary judgment for Appellant, and remand to the District Court for

determination of court costs and attorneys fees.

Respectfully submitted,

8


James K. Green, Esq. JA!vffiS K. GREEN, P.A. Suite 1650, Esperante 222 Lakeview A venue West Palm Beach, FL 33401 Telephone: 561-659-2029 Facsimile: 561-655-1357 j [email protected] Florida Bar No: 229466

Jame'sK. Green ~

Lawrence G. Walters, Esq. WALTERS LAW GROUP 195 W. Pine A venue Longwood, FL 32750 Telephone: 407-975-9150 Facsimile: 407-774-6151 [email protected] Florida Bar No. 776599

CERTIFICATE OF SERVICE

I, James K. Green, certify that, on September 8, 2015, a copy of this

Supplemental Brief of Appellant was electronically filed with the Court using

CMIECF. I further certify that, on September 4, 2015, copies of this Brief were

sent, by Federal Express for overnight delivery, to the Clerk of the Court:

Kalinthia R. Dillard, Esq. Shawntoyia Bernard, Esq. JulieAnne Rico, Esq. The School District of Palm Beach County Office of General Counsel 3300 Forest Hill Blvd., C-323 West Palm Beach, FL 33406

Jmnes~ 9


DAVID BENOIT MECH, Plaintiff/Appellant, SCHOOL … file15-10778-c in the united states court of...

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