Dallas Responds to Exxxotica's Motion for Preliminary Injunction

DALLAS—The legal battle for Three Events LLC's Exxxotica Lifestyle Convention to reclaim its venue at the city-owned Kay Bailey Hutchison Convention Center has kicked up a notch, with the City of Dallas filing its response to Three Events' Motion for Preliminary Injunction that would force the Dallas city manager to sign the contract for the company to hold its 2016 Exxxotica Dallas convention at the Hutchison Center. As those who have been paying attention to this situation know, Dallas doesn't exactly have a good record when it comes to free speech. Over the past decade, the city has lost two high-profile speech cases, one involving an ordinance targeting a religious group, Overpasses For America, which wanted to stage protests on city highway overpasses about an impending city statute that would have allowed migrant children to be sheltered in the county, while another ordinance prohibited people from protesting during the opening and dedication of the George W. Bush Presidential Center. In one case, the ordinance was overturned and in the other, it didn't pass the council, but in both cases, the city was forced to pay damages and attorneys' fees to the protesters. But the city apparently hasn't learned its lesson, since it passed an "anti-Exxxotica" ordinance on February 10, even though City Attorney Warren Ernst had warned the council that it would likely lose the lawsuit Three Events was sure to file if not allowed to return to the convention center, and even though representatives from the Dallas Police and Vice Squad gave sworn testimony before the council that nothing untoward, much less illegal, had occurred at the convention center when Exxxotica had its show there last year. No, instead, the city hired Scott Bergthold, the Tennessee attorney best known for creating boilerplate (and often overturned) anti-adult ordinances for municipalities across the country to pass to prevent adult businesses from opening locally, to defend the city's anti-Exxxotica ordinance—and sure enough, the city's response to Three Events' motion is at least as well crafted as Bergthold's other anti-adult projects—that is, not well at all. For example, the response, referring to statements by Three Events' Jeffrey Handy, claims that, "Despite Mr. Handy’s initial representation that his Exxxotica events include no lewd acts, video footage from Exxxotica Dallas demonstrates that conduct which involved fondling and touching of breasts and simulation of sexual intercourse by oral sodomy did occur at Exxxotica Dallas. Under Texas law, the conduct which was captured on these videotapes constitutes acts of public lewdness."(6) [Citations removed here and below] But a look at footnote 6 reveals, "Under TEXAS PENAL CODE ('TPC') Sec. 21.01(2), 'sexual contact' means 'any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.' Under TPC Sec. 21.07, a person commits the offense of public lewdness if he or she 'knowingly engages in any of the following acts in a public place... (3) [an] act of sexual contact.' 'Sexual contact' need not be flesh-on-flesh but may occur despite the existence of a cloth or other barrier which prevents or impedes flesh-on-flesh contact." So ... the worst the city can say about what happened at Exxxotica 2015 is that someone fondled and/or touched a female breast (possibly the breast's owner herself) while still clothed, and someone simulated a blowjob, again through clothes—and since there was no apparent "intent to arouse or gratify the sexual desire of any person," no one was even marginally guilty of "public lewdness"! Indeed; several of the footnotes in Bergthold's response—though there are several attorneys representing the defendants, Bergthold is the lead, and must approve all filings—border on the hilarious. For example, one reads, "The three undercover vice officers who attended Exxxotica Dallas did so only for a limited time, no more than an hour and a half on one day and two hours on another day, during which time they did not observe criminal activity. However, this does not mean that no illegal conduct or criminal activity took place at Exxxotica Dallas." Translation: Nobody saw anything illegal, so therefore, something illegal must have happened! Bergthold also complains that although Exxxotica posted multiple signs telling those under 18 that they would not be admitted, and even posted security at the entrance to keep under-18s out, "The booths which were visible from the lobby when the entry and exit doors were open to permit entry and exit included LA Direct Models, Simply Erotic Xtras, Chaturbate,(4) ArrangementFinders.com, MyFreeCams.com and, possibly, Clips4Sale.com." However, Bergthold and his team felt it necessary to include footnote #4, which states, "Chaturbate defines 'chaturbate' as 'the act of masturbating while chatting online.'" So even though no one was seen masturbating while chatting at the Chaturbate booth, something illegal must have happened, else why include that footnote? But it's not just what happened inside the exhibit area that Bergthold sees as a problem; it's even what happened outside. Turns out that out of the thousands of people who attended Exxxotica Dallas 2015, "a patron of Exxxotica Dallas was arrested for assault in the Convention Center when he punched a protestor in the face. Another patron of Exxxotica Dallas was issued an arrest on a warrant after he was involved in a disturbance at the Convention Center and was found to have an outstanding warrant." Talk about your scathing indictment! And let's not forget guilt by insinuation! "On the weekend that Exxotica Dallas took place, August 7-9, 2015, the vice section of the DPD conducted an operation designed to target the demand side of human trafficking in the City of Dallas by targeting the 'Johns' who solicit prostitution off the internet, specifically through the website backpage.com," one paragraph of the response reads. "This operation involved the DPD posting two ads on the backpage.com website designed to attract 'Johns' who seek to pay for sexual encounters with young or underage females. Both of the DPD’s ads made reference to 'Exxotica' or 'Exxxotica.' This operation resulted in nine arrests of 'Johns' who responded to the DPD’s backpage.com ads." Why of course those Johns answered the ads because Exxxotica (or "Exxotica") was mentioned! After all, who'd want to pay for sex if they didn't mention the convention??? Section 5 of the response repeats the claim that Exxxotica's presence at the convention center violated Dallas' Sexually Oriented Business Ordinance—except that City Attorney Ernst had already stated to the council that because Exxxotica was only temporarily in business, that ordinance, which targeted ongoing businesses in the city, didn't even apply to Exxxotica. Bergthold compounds his horseshit by continually referring to "nude women" doing this or that at the convention, when in fact, no "nude women" were present at all! Much of the alleged sexual activity that supposedly took place at the convention is recorded in affidavits filed by various employees of the City of Dallas, as well as in a series of DVDs that were filed with the court under seal. For example, John Johnson, who was the Assistant Director of the Kay Bailey Hutchison Convention Center during the time in question, stated that, "During Exxxotica Dallas, I did not see any signs on the doors to the exhibit space notifying attendees about prohibited conduct in Exxxotica Dallas, although I did see signs telling patrons all purchases must remain packaged in a bag until on private property. I do not recall seeing any other signs posted near the doors to the exhibit space, or anywhere else in the Convention Center during this event." Yet, signs were posted and are clearly visible in newspaper photographs taken of the site. Johnson also claimed, "I also observed the portion of the exhibit space referred to as 'the dungeon' while it was in use. In 'the dungeon' I saw a fully clothed woman being whipped by a fully clothed man. In the exhibit space for Exxxotica Dallas I saw numerous women wearing only pasties or tape covering their nipples and areolas and otherwise exposing their whole breasts. It appeared to me that the majority of the women dressed in this manner were adult entertainment personalities." In fact, Johnson reports seeing a lot of "g-strings and pasties" on women at the convention, and at least one poster depicting a nude Jennifer White. But the cherry on the top of Bergthold's horseshit has to be the inclusion, as a multi-part exhibit to the response, of a 330-page (!!!) document titled, "Identifying Challenges to Improve the Investigation and Prosecution of State and Local Human Trafficking Cases," which has absolutely nothing to do with the issues in the case, since no one has even inferred that trafficking took place at Exxxotica. Also included as exhibits are several reports prepared by Richard McCleary, Ph.D., with whom just about every First Amendment attorney in the country is familiar, since he's served as the go-to "expert" for the defense in a number of challenges to municipalities' anti-adult ordinances—and of course, his supposed "expertise" is something Bergthold and his cronies have used many, many times. So, with all that heavyweight firepower trying to defend Dallas' unconstitutional ordinance, the case of Three Expo Events, LLC v. City of Dallas, et al is shaping up to be a fight that is likely to be the basis for quite a bit of discussion at the next First Amendment Lawyers Association get-together in Chicago.