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April 21, 2016

Federal Judge Upholds Dallas Anti-Exxxotica Resolution-UPDATED

DALLAS—U.S. District Judge Sidney Fitzwater earlier today denied the Motion for Preliminary Injunction against the City of Dallas filed by Three Expo Events, LLC in its attempt to rent the Kay Bailey Hutchison Convention Center for this year's Exxxotica Lifestyle Expo. The judge apparently bought the city's contention that rather than being a public forum for free speech, which has been rented out over the years to religious and political groups, the convention center is merely "rented for commercial purposes" and is a "limited public forum"—which nonetheless hosted the Exxxotica convention in 2015. Accepting the city's claims that Exxxotica's manager J. Handy had allowed "many of the women at Exxxotica" to wear "only pasties or tape covering their nipples and areolas and otherwise exposed their breasts; that sexual activities, including 'the fondling or other erotic touching of genitals, pubic region, buttocks, anus or female breasts' had occurred, and "that Three Expo did not arrange for drapes or screens to be positioned so as to block the view of the exhibit space from the lobby, and that, when entrance and exit doors were open to permit passage, persons in the Convention Center lobby could observe adult material; that identification was not uniformly checked, and attendees of Exxxotica saw a young woman in the exhibit space who did not appear to be age 18; and that Three Expo failed to post signs at the entrance doors prohibiting unlawful conduct, as it had promised," the judge ruled that Exxxotica had violated the promises it had made to the city regarding conduct at the convention center. The judge also apparently believed the city's claim that "lewd acts, assault, and human trafficking" had occurred at the 2015 Expo. [Emphasis added for the defamation] After concluding that Three Expo had standing to bring its preliminary injunction motion, the judge detailed four requirements that Three Expo had to meet in order to prevail in its motion: "(1) a substantial likelihood that it will prevail on the merits; (2) a substantial threat that it will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury outweighs the threatened harm the injunction may do to defendants; and (4) that granting the preliminary injunction will not disserve the public interest." [Citations omitted here and below] While it seems obvious that Three Expo meets all of those criteria, and though the judge recognized that Exxxotica's acceptance of its exhibitors' promotion of sexually explicit content was within everyone's First Amendment rights, he nonetheless ruled that the convention center is not a "traditional public forum" nor a "designated public forum" which would require the city to "show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end," nor even a "limited public forum," where "the government is not required to, and often does not, allow persons to engage in every type of speech." Even so, in a limited public forum, the government may not "discriminate against speech on the basis of viewpoint," as the Dallas City Council Resolution clearly does. Judge Fitzwater, a Ronald Reagan appointee, also considered whether the convention center is actually a "nonpublic forum," which "describes public property that is not by tradition or designation open for public communication," apparently no matter how many groups of whatever size have already used the convention center as the forum for extolling their views. "As with a limited public forum, the government can restrict access to a nonpublic forum as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view," the judge wrote in his opinion. The judge bought Texas Attorney General Ken Paxton's claim in his amicus brief that "the City, 'acting as a proprietor,' manages the Convention Center as a commercially useful asset," and that "the Convention Center is a commercial enterprise intended to promote economic development," and that "the City’s maintenance and management of the Convention Center are for the purpose of fueling economic growth, not for encouraging public discourse." The judge noted that Three Expo had never addressed the issue of whether the convention center was in fact a "public forum," apparently because that seemed obvious from its size and capacity, and from its history of hosting religious, political and other groups which had engaged in speech activity while there, which Three Expo did mention in its filings. "Amici recognize that '[s]peech does, of course, take place at the Convention Center,' but they argue that because the City did not create the Convention Center for purposes of providing a forum for expressive activity, the presence of speech does not convert the Convention Center into a public forum," the judge wrote. "Rather, they posit that any speech at the Convention Center 'is simply the byproduct of the commercial enterprise.'" In the end, Judge Fitzwater ruled that the question was whether the convention center is a "designated public forum" or a "limited public forum," and essentially ruled that that is such a fact-intensive question that it will need to be left to a judge and/or jury to decide. "The capacity of the Convention Center to host an event such as Exxxotica, however, does not establish, or even necessarily support, the premise that the City has designated the Convention Center to be the functional equivalent of a quintessential public forum," Judge Fitzwater concluded. "Nor are statements on the Convention Center’s website that 'the Convention Center is big and big things happen there' sufficient to establish, as Three Expo contended during oral argument, that the Convention Center is a designated public forum because it is 'open to anyone who wants to stage an expo or a trade show [there].' Although Three Expo may be able to do so at a later stage in this litigation, it has not supported its motion for a preliminary injunction with any evidence that would permit the court to find that the City has opened up the Convention Center for all types of expressive activity, or that members of the public who wish to use Convention Center space can do so without first obtaining the City’s permission." Finally, the judge ruled that it was reasonable for the city to deny Exxxotica's use of the convention center because Handy had reneged on promises made regarding exhibitors' and guests' conduct during the expo, which conduct had violated the city's sexually oriented businesses ordinance, including "evidence that the DPD [Dallas Police Department] arrested nine 'Johns,' who had responded to ads that the DPD had posted on a website that referred to 'Exxotica' or 'Exxxotica.'" "On this record, the City has proved that its posited justifications for refusing to enter into a contract with Three Expo for Exxxotica in 2016 were reasonable in light of the purpose to be served by the Convention Center," he wrote. "As Amici point out in their brief, the Convention Center is a commercial enterprise intended to promote economic development and revenue generation for the City. It is reasonable, in light of this purpose, for the City to refuse to enter into a contract with Three Expo... The preliminary injunction record does not support the finding that the City was actually motivated by a desire to suppress Three Expo’s viewpoint. On its face, the Resolution is both content and viewpoint neutral." The judge's full opinion can be read here. According to Three Expo attorney J. Michael Murray, the judge's ruling means that Three Expo will be unable to hold Exxxotica at the convention center during May 20-22, though it may try to find another venue for the expo. "We were disappointed with the court's ruling, but we regard this to be just a temporary setback," Murray told AVN. "We plan on forging ahead with the litigation and gather additional evidence to fortify our position. And while we may not be able to meet the projected dates for the convention in May, there are other dates that will become available, so it doesn't eliminate the need for further litigation. We are currently studying all of the legal options that are available and will be deciding on which of the various options to pursue after talking to the clients and my co-counsel." (H/t to Susan and David Bradley for all the info.)

 
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