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April 22, 2016

Op-Ed: Dallas Media React to Thursday's Anti-Exxxotica Decision

DALLAS, Tex.—When the person described as one of the most conservative columnists in Texas editorializes about how bad was Judge Sidney Fitzwater's decision to deny Three Expo Events' Motion for Preliminary Injunction, thus scotching chances for an Exxxotica convention in Dallas in May, perhaps Dallas' political  leaders should reconsider their position. As those who've been paying attention to the controversy know, Judge Fitzwater denied the injunction on essentially two grounds: that the Kay Bailey Hutchison Convention Center, where Exxxotica was to be held (and where it was held last year), is not a "public forum" where free speech is to be protected, but rather a "commercial interest" that doesn't need to take First Amendment rights into consideration, and that the City Council's passage of a resolution that barred the convention manager from contracting with Three Expo was "content neutral"—meaning they didn't pass it not because they don't like porn, but for some other non-speech-related reason. "What makes little sense, at least to the humble layman: When all of the argument leading to that 8-7 council vote pounded away on the evils of pornography, how can a decision to bar a porn expo come out as 'viewpoint neutral'?" asked Dallas Morning News Opinion Blog Editor Mike Hashimoto. "Council member after council member on the Rawlings side cited porn as a great scourge of our times, yet this did not affect the vote? "If the Dallas City Council had a long history—or much history at all—of voting to bar other conventions, regardless of viewpoint, that would be one thing," he added. "That also would defy logic: Why would a city government bar from city-owned property any such gathering that was within the law and paid for the space, when that space wasn’t exactly turning big profits? The city funds the convention center into the tens of millions of dollars for debt service and annual subsidy. Every dollar the city puts into the convention center falls not from some magic money tree but is taken by force of law from Dallas taxpayers." That last comment, of course, betrays Hashimoto's libertarian leanings, but his real point is that every dollar paid to attorneys and others to fight Exxxotica's use of the convention center is a dollar wasted—and so far, the city is wasting about $4,000 per day on the fight, and it'll only get more expensive from here. "[A] 'constitutional conservative' argues that the entire document [U.S. Constitution], words on paper and their interpretations, means something, not a picking-and-choosing of what we like and ignoring what we don’t," Hashimoto added. "The free speech part of the First Amendment, then, means something. Whether you agree is immaterial. So insisting that free speech should apply to all taxpayer-funded property isn’t an expansive reading as much as it’s logical and clear. From a layman’s perspective." In other words, it doesn't take a lawyer to recognize that the city's discrimination against Exxxotica is hardly constitutional, despite the claims of "content neutrality" by those who would bar the expo from the convention center—and that contradiction is what they'll be faced with front and center when this dispute goes to trial. Indeed, the Dallas Observer's Stephen Young quoted Dallas City Councilmember Philip Kingston, an opponent of the anti-Exxxotica resolution, as saying, "The thing that I think is not going to survive is the idea that anything about the city's action against Exxxotica was anything other than viewpoint discrimination. This is pretty much classic viewpoint discrimination. ...  Even if the [city's lawyers' claims about Exxxotica] are true. It's, at best, a pretext for what really was the majority's revulsion at the type of speech that goes on at Exxxotica." Young noted how the judge's decision has been met with applause from Dallas Mayor Mike Rawlings, as well as Texas Attorney General Ken Paxton, who filed an amicus brief on behalf of himself and the conservative Dallas Citizens Council opposing the injunction. (Paxton, it will be remembered, was indicted last year on federal and state securities fraud charges.) "Rawlings and Paxton probably shouldn't count their chickens, or their flourishing businesses, before they hatch," Young opined. "The thing about Fitzwater's rulings—he also declined the city's request to dismiss the case entirely Thursday—is that, should Exxxotica have the wherewithal, this case is going to trial. That could cost the city a ton of cash." Indeed, that's the most likely outcome, and while Three Expo's attorneys are still discussing their options in the wake of Judge Fitzwater's decision, it's almost a certainty that they will take the case to trial. "Although we're disappointed in today's decision, we did understand that getting the injunction would have been a very high legal hurdle," Exxxotica founder J. Handy texted to Young. "We were obviously happy the judge denied the city's motion to dismiss and we look forward to moving ahead with the case. We are in this for the long haul. You can't put a time, or a dollar, limit on the freedom of speech." Of course, over that "long haul," the city will be piling up a mountain of legal fees, and Dallas-based appellate attorney Chad Ruback estimated that the case could easily take three years to come to a conclusion. Over that time, the city's attorneys could easily run up a bill in the area of $4.5 million—and that's not even including Exxxotica's legal fees, which the city will have to cover as well when it loses the case, just as it's lost two previous similar speech cases. And considering that Exxxotica won't be held in Dallas this year—at least, not at the convention center—there'll be the question of the damages the city will owe Three Expo for banning the event—and that could run into millions as well. But what the heck; the citizens of Dallas can afford it ... or can they? One thing's for sure: Most of them certainly won't want to. Hmmm ... wonder when their next mayoral/city council elections are scheduled for? (H/t, once again, to the Bradleys for their invaluable information-gathering)

 
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