© 2015 The Texas Lawbook.
By Mark Curriden
(April 21) – U.S. District Judge Sidney Fitzwater Thursday morning rejected efforts by Three Expo Events to override the City of Dallas’ prohibition of a three-day exhibition called Exxxotica at the Dallas Convention Center.
Dallas officials rejected a request by Three Expo to rent the convention center for its sexually-oriented exhibit, even though it has allowed the expo to use the convention center in 2015.
Three Expo filed a lawsuit in federal court in Dallas accusing the city of violating the group’s First Amendment free speech rights and asked Judge Fitzwater to issue a temporary restraining order that allowed the group to hold its event.
But the court sided with the city.
“Based on the facts developed thus far, the court finds that Three Expo has not demonstrated a substantial likelihood of success on the merits,” Judge Fitwater wrote in a 32-page opinion. “Three Expo has failed to establish that the Convention Center is anything more than a limited public forum. And the City has established that its refusal to enter into a contract for an Exxxotica expo in 2016 was both reasonable and viewpoint neutral.”
Rob Walters, a partner at Gibson Dunn who represented the Dallas Citizens Council in the litigation, praised the judge’s decision.
“As lawyers who litigate constitutional issues, we were convinced that Exxxotica was advancing an unjustifiably expansive view of the First Amendment,” Walters said. “We applaud Judge Fitzwater for his careful and well-reasoned opinion and Mayor Rawlings and General Paxton and the State of Texas for their leadership on this important issue.”
Here are excerpts from Judge Fitwater’s ruling:
“According to the City, Three Expo violated many of the terms of its Operating Requirements, despite Handy’s representation that he would monitor compliance with its terms and supervise the show and exhibitor conduct at all times. For example, the City has introduced evidence that many of the women at Exxxotica wore 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,” D. Br. 5, took place at Exxxotica and were observed and recorded; 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 City also contends that Three Expo violated state law by permitting lewd acts, assault, and human trafficking to occur at Exxxotica, and violated various provisions of the City of Dallas’s sexually oriented business ordinance,
“On March 4, 2016 Three Expo filed the instant motion for a preliminary injunction, which the City of Dallas opposes. Three Expo asks the court to enjoin the City from interfering with the 2016 Exxxotica expo that Three Expo seeks to hold at the Convention Center, and ordering that the City enter into a contract with Three Expo for a lease at the Convention Center for a three-day adult entertainment expo on May 20-22, 2016, in accordance with their prior agreements and course of dealing.
“To obtain a preliminary injunction, Three Expo must establish the following: (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.
“The court assumes for purposes of this decision that at least some of the content of the Exxxotica expo is protected under the First Amendment.
“Three Expo does not offer any evidence that, in creating or operating the Convention Center, the City has intentionally opened up a nontraditional forum for public discourse.
“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, see Arkansas Educational Television Commission, 523 U.S. at 679-80. Without establishing that the Convention Center is a designated public forum, Three Expo is not entitled to the type of review courts use for those types of forums.
“Accordingly, the court concludes that Three Expo has not met its burden of establishing a substantial likelihood of success on the essential element that the Convention Center is a designated public forum and, in turn, that the Resolution is subject to strict scrutiny. As explained, determining the status of a forum is highly fact-intensive. Three Expo has failed to adduce any facts that would support the finding that the Convention Center is a designated public forum. Accordingly, the court must assume that the Convention Center is either a limited public forum or a nonpublic forum and determine, at the next step of the First Amendment analysis, whether the City has established that the City’s decision was reasonable and viewpoint neutral.
“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. 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. First, there is evidence that shows that the City reasonably believed that Three Expo made fraudulent misrepresentations and breached certain aspects of its agreement with the City in connection with Exxxotica 2015. It is reasonable for the City to choose not to enter into a second contract with a party with whom it has previously dealt and who breached a prior agreement. There was conduct at Exxxotica in 2015—by no means isolated—that would ordinarily be regulated under the City’s SOB Ordinance. The City could have reasonably believed, having observed what transpired at Exxxotica in 2015, that it would be incongruous with the purpose of the Convention Center—i.e., to promote the economic development of the City—to host an event that would likely include public lewdness and other conduct that the City’s SOB ordinance would permit it to regulate otherwise.
© 2014 The Texas Lawbook. Content of The Texas Lawbook is controlled and protected by specific licensing agreements with our subscribers and under federal copyright laws. Any distribution of this content without the consent of The Texas Lawbook is prohibited.
If you see any inaccuracy in any article in The Texas Lawbook, please contact us. Our goal is content that is 100% true and accurate. Thank you.