Federal Court Sides With City of Dallas' Exxxotica Ban

Apr 21, 2016 11:00 AM PST

DALLAS — The City of Dallas can ban the Exxxotica expo from the municipal convention center because it is "both reasonable and viewpoint neutral," a federal judge ruled today.

Exxxotica, which had planned to stage a three-day event at the Kay Bailey Hutchinson Convention Center on May 20-22, was seeking approval for a preliminary injunction against the city, which refused to sign a new contract.

U.S. District Judge Sidney Fitzwater denied Exxxotica’s motion for an injunction, ruling that the convention center is a limited 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,'" Fitzwater wrote.

"Instead, the question in this case is whether [Exxxotica] 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  [Exxxotica]’s First Amendment rights, or is a limited public forum, which imposes a lower burden."

The judge in his 32-page decision cited evidence of a video that showed acts of public lewdness and evidence of nine men arrested after they 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 [Exxxotica] 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 [sexually oriented business] ordinance would permit it to regulate otherwise."

Fitzwater ruled that the City of Dallas was not "actually motivated by a desire to suppress" the plaintiff's viewpoint.

"[Exxxotica] has not presented any evidence that, in voting for the Resolution, city councilmembers were motivated by a desire to suppress [Exxxotica]’s viewpoint," he wrote. "As the city points out in its brief, [Exxxotica] has not clearly articulated any particular viewpoint against which the city could have discriminated."

The State of Texas and the Dallas Citizen's Council filed briefs in support of the City of Dallas in opposition to the motion for preliminary injunction, which was decided upon three days after an 80-minute hearing in Fitzwater’s courtroom.

Exxxotica's attorney, Roger Albright, did not immediately respond to a request for XBIZ comment.  

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