Former Adult Producer Dave Pounder Asks U.S. Supreme Court to Take Case

May 19, 2016 4:00 PM PST

UPDATED (May 20, 3:15 PDT): Industry attorney Lawrence Walters of Walters Law Group, who is one of two lawyers who worked on Pounder's petition to the high court, discusses Dave Pounder's case.

BOCA RATON, Fla. — Former adult film producer Dave Pounder yesterday 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, who also is a former adult performer and director, was fingered by parents 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.

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."

"We conclude that the banners for The Happy/Fun Math Tutor are government speech," the court said. "Despite the lack of historical evidence in the record, the banners exhibit strong indicia of government endorsement and control. Accordingly, [Pounder's] claim under the First Amendment fails. His redress lies with the political process, not the courts."

With a petition for cert filed at the U.S. Supreme Court, Pounder said that he’s counting on “the unconstitutional conditions doctrine and prohibitions against viewpoint- and speaker-based discrimination … be extended to include all such government facilitation of private speech — not just based on the content of the message but also the viewpoint and identity of the speaker."

"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 told XBIZ. “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.” 

Industry attorney Lawrence Walters of Walters Law Group, who is one of two lawyers who worked on Pounder's petition to the high court, said the case involves the critical issue of when private speech loses all First Amendment protection.

"Under the school board's theory, any time the government endorses or approves a message, that speech is stripped of any constitutional safeguards," Walters told XBIZ. "The government can then decide who can speak, and what can be said.

"That creates a dangerous exception to the First Amendment. We are hopeful that the Court will recognize the importance of this case, and the issue it raises."

No longer in porn, Pounder held the slot as president of DavePounder 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.

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