              Case: 15-10778     Date Filed: 11/23/2015    Page: 1 of 18


                                                                           [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 15-10778
                            ________________________

                       D.C. Docket No. 9:13-cv-80437-KAM



DAVID BENOIT MECH,
d.b.a. The Happy/Fun Math Tutor,

                                                                  Plaintiff-Appellant,
                                        versus

SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA,

                                                                 Defendant-Appellee.

                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                           _______________________

                                (November 23, 2015)

Before MARCUS, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.

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
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providing a forum for private speech.” Pleasant Grove City v. Summum, 555 U.S.

460, 470, 129 S. Ct. 1125, 1132 (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.

                                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




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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.” See

Sch. Bd. Policies 7.151, http://www.boarddocs.com/fl/palmbeach/Board.nsf/goto?

open&id=9R8NDB5AD0A1#. 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


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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

schools require banners to be printed in school colors and to 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.




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      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,


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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 (2015). Before oral argument, we ordered the parties to provide

supplemental briefing on whether Walker affects 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).




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                                 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 (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 (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

(1998)). Government speech is regulated primarily by “the political process,” not


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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 Walker

concluded 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 designs. Id. at 2248. License plates “are, essentially,

government IDs,” and individuals choose specialty plates over bumper stickers

because they hope to convey the impression that “the State has endorsed th[e]

message.” Id. at 2249. Third, Texas exercises “direct control over the messages”

on specialty license plates. Id. The Texas Department of Motor Vehicles Board

“must approve every specialty plate design proposal,” id., and Texas dictates “the


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design, typeface, color, and alphanumeric pattern for all license plates,” id.

(quoting 43 Tex. Admin. Code § 504.005(a)). These factors taken together

established that the specialty license plates were government speech.

      The three factors that the Supreme Court applied in Walker came from

Summum, a decision in which the Court concluded that privately donated

monuments in public parks were government speech. See Summum, 555 U.S. at

470–72, 129 S. Ct. at 1133–34. There, the Court explained that “[g]overnments

have long used monuments to speak to the public.” Id. at 470, 129 S. Ct. at 1132.

Moreover, “[i]t certainly is not common for property owners to open up their

property for the installation of permanent monuments that convey a message with

which they do not wish to be associated.” Id. at 471, 129 S. Ct. at 1133. “[T]here is

little chance that observers will fail to appreciate the identity of the speaker” when

they view a monument in a public park, id., especially because “[p]ublic parks are

often closely identified in the public mind with the government unit that owns the

land,” id. at 472, 129 S. Ct. at 1133. Finally, the city “‘effectively controlled’ the

messages sent by the monuments in the [p]ark by exercising ‘final approval

authority’ over their selection.” Id. at 473, 129 S. Ct. at 1134 (quoting Johanns v.

Livestock Mktg. Ass’n, 544 U.S. 550, 560–61, 125 S. Ct. 2055, 2062–63 (2005)).

“The monuments that are accepted, therefore, are meant to convey and have the




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effect of conveying a government message, and they thus constitute government

speech.” Id. at 472, 129 S. Ct. at 1134.

      In the light of Walker and Summum, we conclude that this case also involves

government speech. Although the parties have not presented evidence about the

history of banners on school fences, the banners bear the imprimatur of the schools

and the schools exercise substantial control over the messages that they convey.

We do not mean to suggest that the factors identified in Walker and Summum are

exhaustive or that they will be relevant in every case. See Walker, 135 S. Ct. at

2249. Whether speech is government speech is inevitably a context specific

inquiry. But these decisions provide a useful framework. Below, we address how

each of the three factors from Walker and Summum—history, endorsement, and

control—applies to the banners in Palm Beach County.

                                     A. History
      The record contains no evidence about the history of banners on school

fences. And the banner program in Palm Beach County has a relatively recent

vintage: the School Board launched it in 2008 and codified it in 2011. On this

record, we cannot conclude that such banners “long have communicated messages

from the [government].” Id. at 2248.

      The absence of historical evidence weighs in Mech’s favor, but it is not

decisive. A medium that has long communicated government messages is more


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likely to be government speech, see id.; Summum, 555 U.S. at 470, 129 S. Ct. at

1132–33, but a long historical pedigree is not a prerequisite for government

speech. For example, in Johanns v. Livestock Marketing Association, the Supreme

Court concluded that a promotional campaign for the beef industry was

government speech without conducting any historical inquiry or citing any

historical evidence. See 544 U.S. at 560–67, 125 S. Ct. at 2062–66. According to

the Court, the promotional campaign—which was written by a nongovernment

entity—was government speech because “[t]he message . . . is effectively

controlled by the Federal Government itself.” Id. at 560, 125 S. Ct. at 2062.

Johanns makes clear that a particular medium may be government speech based

solely on present-day circumstances. For example, if the School Board posted a

message about school closings for inclement weather on Facebook or Twitter, we

would have little difficulty classifying the message as government speech, even

though social media is a relatively new phenomenon. See, e.g., Sutliffe v. Epping

Sch. Dist., 584 F.3d 314, 331 (1st Cir. 2009) (“[T]he Town engaged in government

speech by establishing a town website and then selecting which hyperlinks to place

on its website.”); Page v. Lexington Cty. Sch. Dist. One, 531 F.3d 275, 288 (4th

Cir. 2008) (school website and email communications were government speech).

The absence of historical evidence can be overcome by other indicia of

government speech. And, as we explain below, such other indicia are present here.


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                                  B. Endorsement

      The second factor—that observers reasonably believe the government has

endorsed the message—strongly suggests that the banners are government speech.

The banners are hung on school fences, and government property is “often closely

identified in the public mind with the government unit that owns the land.”

Summum, 555 U.S. at 472, 129 S. Ct. at 1133; see, e.g., United Veterans Mem’l &

Patriotic Ass’n v. City of New Rochelle, 72 F. Supp. 3d 468, 474–75 (S.D.N.Y.

2014) (Gadsden flag at a government armory was government speech), aff’d, No.

15-120 (2d Cir. Sept. 9, 2015); Am. Atheists, Inc. v. Davenport, 637 F.3d 1095,

1115–16 & n.8 (10th Cir. 2010) (cross memorials on the side of public highways

were government speech). Although banners are not “government IDs,” Walker,

135 S. Ct. at 2249, schools typically do not hang them on school property for long

periods of time if they contain “message[s] with which the[ schools] do not wish to

be associated,” id. (first alteration in original) (quoting Summum, 555 U.S. at 471,

129 S. Ct. at 1133). Moreover, “[t]he governmental nature” of the banners “is clear

from their faces.” Id. at 2248. 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


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same activity, occupation, etc.” Partner, Oxford English Dictionary (online ed.).

Indeed, this positive association is likely why sponsors participate in the banner

program, instead of appealing to parents and students through “purely private”

media. Walker, 135 S. Ct. at 2249.

      Mech contends that the banners for The Happy/Fun Math Tutor are private

speech because they are essentially advertisements; they invite the reader to do

business with the sponsor, not the school. Mech bolsters his argument by

identifying other examples of “Partners in Excellence” that provide services totally

unrelated to the school, such as Maggiano’s Italian restaurant, Atlas Roofing, and

The Journey Church. The schools must not be speaking on their own behalf, Mech

reasons, because they neither know nor care whether these miscellaneous

businesses provide “excellent” services.

      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 School Board requires the banners to expressly “thank the

sponsor.” Sch. Bd. Policies 7.151(3)(e). Indeed, the entire purpose of the banner

program is for the schools to “visibly recognize” the “business partners” that

“provide a vital role in sponsorship of key programs.” Id. at 7.151(1). The sponsors

recognized on the banners have “provide[d] adequate funding for an important

program or activity at the school.” Id. at 7.151(3)(g). To return the favor, the


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schools display the sponsor’s information on school property where parents and

students will see it. Such gestures of gratitude are a common form of government

speech. See, e.g., Wells v. City & Cty. of Denver, 257 F.3d 1132, 1141–42 (10th

Cir. 2001) (sign on government property thanking the corporate sponsors of the

city’s Keep the Lights Foundation was government speech); Knights of the Ku

Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1093 (8th Cir. 2000)

(acknowledgements by a public radio station of the donors that contributed to its

programming were government speech). The schools in Palm Beach County have

an interest in expressing gratitude to all of their sponsors, regardless of the services

or the quality of services that they provide. “The fact that the sponsors may receive

an incidental benefit from the [message]—in the form of publicity and good will—

does not refute . . . the [governmental] purpose. Indeed, any benefit that accrues to

the sponsors ultimately serves the [government’s] interests by providing current

and putative sponsors with an incentive to contribute to [government programs] in

the future.” Wells, 257 F.3d at 1142.

      The banners for The Happy/Fun Math Tutor are distinguishable from purely

private advertising in other ways as well. Private advertisements are typically

designed by the advertisers: they convey the words, pictures, and colors that the

advertiser wants to convey. Even when they are located on government property,

private advertisements typically bear “no indicia that the speech [i]s owned or


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conveyed by the government.” Walker, 135 S. Ct. at 2252. The banners on the

school fences, by contrast, are printed in school colors and are subject to uniform

design requirements imposed by the schools. Each banner bears the initials of the

school and identifies the sponsor as a “partner” with the school. Unlike an

advertisement on a city bus, the banners are “formally approved by and stamped

with the imprimatur of [the schools].” Id. Observers would reasonably interpret

them as “conveying some message on the [school’s] behalf.” Id. (quoting

Summum, 555 U.S. at 471, 129 S. Ct. at 1133). That the sponsors “pay annual fees

in order to display [the banners]” does not alter this conclusion. Id.

      Furthermore, the banners for The Happy/Fun Math Tutor are qualitatively

different from the other banners that Mech identifies. His banners pertain to an

education-related service—namely, math tutoring. Because schools are experts in

matters of education, see generally Meyer v. Nebraska, 262 U.S. 390, 400,

43 S. Ct. 625, 627 (1923), an observer who saw a banner for tutoring services on

school property with the imprimatur “[School Initials] Partner in Excellence”

would reasonably conclude that the school was endorsing the services of this tutor.

Indeed, school representatives encouraged Mech to apply for a banner because he

taught the same math courses that they offered and because “[h]e apparently is a

very good tutor.” Even if we were to assume that the banners for The Happy/Fun

Math Tutor are advertisements, observers would view them as government-


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sponsored advertisements because tutoring services are related to the schools’

educational mission.

      Mech further contends that the schools have disclaimed the governmental

nature of the banners. He points to Policy 7.151 as the source of this supposed

disclaimer. Mech argues that, according to subsection (1) of the Policy, the banners

do not “bear[] the imprimatur or endorsement of the School Board.”

      But Mech misreads the Policy. Subsection (1) expresses the intent of the

School Board not to endorse some kinds of messages:

      [I]t 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.

Sch. Bd. Policies 7.151(1). Subsection (1) does not say that the banners do not

“bear[] the imprimatur or endorsement of the School Board.” Instead, it says

because the banners may be perceived as “bearing the imprimatur or endorsement

of the School Board,” the schools must be able to control the messages that they

convey. The School Board seeks to avoid “the expression of political, religious, or

controversial subjects.” Id. This concern is why the School Board requires

principals to “use their discretion in selecting and approving business partners.” Id.




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at 7.151(2)(h). Read in context, subsection (1) is not a disclaimer, but a recognition

that the banners will likely be attributed to the schools.

                                      C. Control

      The third factor—the government’s control over the message—strongly

suggests that the banners are government speech. Like the board that approves

specialty license plates in Texas, the schools control “the design, typeface, [and]

color” of the banners. Walker, 135 S. Ct. at 2249. The schools also dictate the

information that the banners can contain, regulate the size and location of the

banners, and require the banners to include the school’s initials and the message

“Partner in Excellence.” Furthermore, the principals at the schools “must approve

every [banner]” before it goes up on a fence. Id. “This final approval authority

allows [the school] to choose how to present itself” to the community. Id. And it

ensures that the messages on the banners are “effectively controlled” by the

schools. Summum, 555 U.S. at 473, 129 S. Ct. at 1134 (quoting Johanns, 544 U.S.

at 560, 125 S. Ct. at 2062).

      Mech contends that the schools do not meaningfully control the messages on

the banners because the bulk of the information—the logo, name, phone number,

and web address—comes from the sponsor, not the school. But “[t]he fact that

private parties take part in the design and propagation of a message does not

extinguish [its] governmental nature.” Walker, 135 S. Ct. at 2251. The monuments


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in Summum and the license plates in Walker were government speech, even though

private entities designed them. See id.; Summum, 555 U.S. at 470–71, 129 S. Ct. at

1133. Here, the sponsors have even less say-so about the messages on the banners.

The schools do not allow the banners to list anything but the sponsor’s name,

contact information, and preexisting business logo. “The message set out in [a

banner] is from beginning to end the message established by the [school].”

Johanns, 544 U.S. at 560, 125 S. Ct. at 2062.

        We conclude that the banners for The Happy/Fun Math Tutor are

government speech. Despite the lack of historical evidence in the record, the

banners exhibit strong indicia of government endorsement and control.

Accordingly, Mech’s claim under the First Amendment fails. His redress lies with

the political process, not the courts. See Southworth, 529 U.S. at 235, 120 S. Ct. at

1357.

                                IV. CONCLUSION

        We AFFIRM the judgment against Mech.




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