Judge Says Dallas Can Bar Porn Trade Show
April 21, 2016 DAVID LEE
DALLAS (CN) – Dallas can ban the Exxxotica pornography trade show from the city-owned convention center because it is "both reasonable and viewpoint neutral," a federal judge ruled Thursday.
U.S. District Judge Sidney Fitzwater denied Exxxotica organizer Three Expo Events' motion for a preliminary injunction, finding that the Kay Bailey Hutchinson Convention Center is a limited public forum.
Three Expo sued the city in February on First Amendment grounds after the City Council voted 8-7 to ban the event as an impermissible use of a public facility under City Code.
The city responded that at last year's inaugural Exxxotica at the convention center, prohibited sexual activities including "the fondling or other erotic touching of genitals, pubic region, buttocks, anus or female breasts" took place despite assurances to the contrary.
It also claims that Exxxotica failed to check identification as promised and that some attendees saw an unidentified young woman in the exhibit space who did not appear to be 18 years old.
Attorney General Ken Paxton entered the fray, saying in an amicus brief that the city acted within its power because the convention center is a nonpublic forum and a commercial enterprise.
Fitzwater agreed with the city that the convention center "is not a traditional" public forum.
"It is rented for commercial purposes. It is not akin to a sidewalk, street or park 'that the public since time immemorial has used for assembly and general communication,'" the 32-page opinion states.
"Instead, the question in this case is whether Three Expo has demonstrated that the convention center is at least a designated public forum, which would place a heavier burden on the city to show that its action did not infringe Three Expos' First Amendment rights, or is a limited public forum, which imposes a lower burden."
Fitzwater cited evidence of video conduct at the inaugural Exxxotica that two Dallas police deputy chiefs and an assistant chief concluded were acts of public lewdness, and evidence of nine "Johns" being arrested who responded to ads police posted on a website referring to the event.
"Based on the record developed thus far, the court finds that the City has established that its decision not to contract with Three Expo in 2016 was reasonable in light of the purpose of the Convention Center," Fitzwater wrote. "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 [sexually oriented business] ordinance would permit it to regulate otherwise."
Fitzwater concluded that the city was not "actually motivated by a desire to suppress" the plaintiff's viewpoint, and that the ban was content- and viewpoint-neutral on its face.
"Three Expo has not presented any evidence that, in voting for the Resolution, City councilmembers were motivated by a desire to suppress Three Expo's viewpoint," the opinion states. "As the City points out in its brief, Three Expo has not clearly articulated any particular viewpoint against which the City could have discriminated."
Mayor Mike Rawlings thanked attorney and City Councilman Adam McGough, "whose sound legal argument" to the council regarding use of the city's sexually oriented business ordinance was a "key component" to the city's defense.
"Many have criticized the City Council's decision and the cost to defend it," Rawlings said in a statement Thursday. "They predicted a quick loss in the courtroom. They were wrong. While this case is not over and this ruling does not guarantee what would happen at trial, I am extremely proud of the seven City Council members who had the courage to support this ban."
Paxton too said he was "pleased" with the ruling.
"I was happy to join the Dallas Citizens Council in this effort that allows the city of Dallas to be a place where businesses can continue to flourish," he said in a statement.
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