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November 30, 2016

Exxxotica Refiles for Preliminary Injunction Against Dallas

DALLAS, Texas—As AVN readers have probably figured out by now, there's not going to be an Exxxotica Lifestyle Expo taking place in Dallas anytime this year, thanks to the decision last April by U.S. District Judge Sidney A. Fitzwater to reject the application by Exxxotica's owner, Three Expo Events, for a preliminary injunction against a Dallas City Council resolution barring Exxxotica from the Kay Bailey Hutchison Convention Center. But Three Expo isn't giving up. Yesterday, the attorneys for the company, Roger Albright of Dallas and J. Michael Murray of Cleveland, filed their Memorandum in Support of Renewed Motion for a Preliminary Injunction with the judge, providing the evidence which he had requested to show that the Hutchison Convention Center was indeed a "designated public forum" rather than a simple commercial enterprise, and as such could not bar adult-oriented conventions like Exxxotica from renting the facilities. Dallas actually has a history of rejecting applicants who want to rent the convention center and then having to pay hundreds of thousands of dollars in fines and fees when those rejections have been shot down in court, but the city council went the extra mile when it told its city manager not to sign an agreement to rent the convention center to Three Expo: It passed a resolution by a tiny margin, 8-7, on February 10, largely at the behest of religio-conservative oil billionaire Ray Lee Hunt, memorializing its instruction to the city manager, for reasons best expressed by Councilmember Richey D. Callahan. "I appreciate all the folks who felt like it mattered enough to come down and express your First Amendment rights," Callahan told his fellow council members. "I'm tired of being silent. We've all been cowed and where you can't say anything or you might offend somebody. I know they're stepping on your toes but you gotta give them the right. Well, what about my rights, what about your rights, what about our rights as a city? ... When I grew up and I understood the way the law was, I just can't see that the Framers of our Constitution and the writings in the Federalist Papers in no way believe in the unbridled or unrestricted right to allow pornography to be displayed in a public facility. There's something wrongheaded about that..." Trouble is, the Constitution that Callahan and the other council members were so worried about doesn't give them the power to pick and choose which types of "speechmakers" it will allow to rent its convention space, especially in light of the fact that not only had the convention center hosted Exxxotica in 2015 with no problems whatsoever, but it had opened the center's doors to a wide variety of other groups for their various conventions and meetings, including the National Republican and Democratic Parties, the Texas Republican and Democratic Parties, the Dallas Comic Con, the Video Software Dealers Association, the Dallas Safari Club, the American Numismatic Association, the National Rifle Association, the Southern Baptist National Convention and many more, including musicians like Elvis Presley, the Beatles and Frank Zappa. In fact, the only applicants that were denied use of the convention center space were two marijuana conventions and one which featured marijuana smoking paraphernalia. "So then I think it’s accurate to say, is it not, that other than the three denials involving marijuana and cannabis issues of illegality, the only event–client that was turned down in the last 11 years, for reasons other than scheduling conflicts, would have been the plaintiff, Three Expo Events; is that correct?" Murray asked the convention center's Assistant Director John Johnson. "Sure," Johnson replied. What's more, in the summer of 2015, the convention center itself issued a statement that read, in part, "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. The Supreme Court has consistently held that expression beyond that of pure speech is protected by the First Amendment. ... Public officials with power cannot deny use of a forum in advance of actual expression, unless it meets an exception because the danger of censorship and abridgment of First Amendment freedoms is too great where officials have unbridled discretion over a forum’s use. Rejection based on content and anticipation that a production would violate the law, instead of permitting the show and relying on law enforcement authorities to prosecute anything illegal that may occur, is an unconstitutional prior restraint." In addition to quoting the above statement in its Memorandum, Albright and Murray went on to analyze what the legal term "public forum" means, quoting both Supreme Court and Fifth Circuit legal decisions on the subject, as well as testimony from city officials and convention center personnel, not to mention the center's own scheduling policy. After noting that the convention center's first scheduling priority is for "conventions, trade shows, corporate meetings and similar activities that are not open to the general public," the policy brochure continues, "Second priority for scheduling facilities and dates is available to consumer or public exhibitions, local corporate meetings, special events, banquets, entertainment events, business meetings and other activities which essentially draw from or appeal to the general public and/or local attendees and participants." Three Expo's attorneys argue that Exxxotica fits perfectly into that second category. Beyond clearly establishing that the Hutchison Convention Center is a designated public forum, the Memorandum goes on to argue that the City Council Resolution, No. 160308, does not advance a compelling governmental interest, nor is it the least restrict means by which the city could advance its "putative interests," even though several council members made it clear that the resolution didn't stop Three Expo from locating Exxxotica somewhere else in the city besides the convention center. The Memorandum establishes that convention center personnel were well aware of what type of show Exxxotica would be, and though local law enforcement officers had spent time inside the convention in 2015, they testified that they had found nothing amiss among the displays beyond a couple of posters that featured full nudity, both of which were immediately covered up. For its part, the city continues to claim that even despite the statements from local Vice Squad officers who toured the convention, "stuff was happening in corners," though the city has yet to provide evidence of whatever the objectionable "stuff" was. In any case, the city now has 30 days within which to respond to Three Expo's pleadings, though the Dallas Morning News noted that that deadline could be extended because of the upcoming holidays. Reporter Robert Wilonsky wrote that Three Expo is also seeking confirmed dates in 2017 on which to hold Exxxotica in Dallas, as well as reimbursement for the "hundreds of thousands of dollars" in revenue lost after it was banned this year. Added the Dallas Observer's Stephen Young, "As of its latest payment authorization in August, the city has spent more than $400,000 on its attorneys in its fight with Exxxotica, which will last well over a year if the case is not settled." (H/t to David and Susan Bradley for assistance with this story.)

 
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