Fifth Circuit Revives War Over Dallas Porn Festival

(CN) – The Fifth Circuit sided with a pornography convention organizer Wednesday, finding a federal judge improperly dismissed its free speech case filed after the city of Dallas banned the show from a city-owned convention center.

Three Expo Events sued Dallas in February 2016, claiming the city violated its First Amendment rights by adopting a resolution banning the Exxxotica event – billed as the “largest adult event” in the nation dedicated to love and sex – as an impermissible use of a public facility under city code.

The 2015  Exxotica event, which featured “near nudity and sexually suggestive activities” according to the Fifth Circuit ruling, drew protests from citizens and city officials on moral grounds.

Although city attorneys at the time told the City Council that banning Exxxotica 2016 might be unconstitutional, city leaders passed a resolution directing the city manager to reject a contract with Three Expo for the lease of the Dallas Convention Center.

U.S. District Judge Sidney Fitzwater dismissed Three Expo’s lawsuit against the city on a technicality, finding that the convention organizer lacked standing. The judge ruled Exotica Dallas – a subsidiary “ownership entity” of Three Expo – contracted with the city for the 2015 show and Three Expo hadn’t shown the resolution would stop the 2016 festival from happening.

But in a 2-1 opinion Wednesday, U.S. Circuit Judge James Dennis ruled Fitzwater was “clearly mistaken” in finding the city might have agreed to let Exotica Dallas to stage Exxxotica 2016 at the convention center.

“The mayor and the City Council made clear at the City Council meeting their firm and deliberate decision to exclude Exxxotica 2016 from the convention center under any circumstance and regardless of the legal consequences,” Dennis wrote. “There is nothing in the evidence to suggest that after so affirmatively barring Exxxotica 2016 from the convention center that the city would have allowed one of its officers to lease the facility to Exotica Dallas LLC for the purpose of staging Exxxotica 2016.”

Dennis added it was not the resolution alone that barred Exxxotica 2016, but “all of the actions” of the mayor, City Council members, downtown property owners and civic groups that “publicly declared that Exxxotica was unfit and inappropriate for expression and viewing in a public facility and called for its prohibition and suppression.”

The panel found Three Expo established the elements required for standing on each of its claims, including a violation of its rights of freedom of speech, equal protection, and freedom from bill of attainder.

“It is undisputed that because of Three Expo’s inability to stage Exxxotica 2016 as planned, it suffered economic damages in loss of revenues from the convention, causing it to lose net profits and defrayal of the cost of advance publicity and other expenses,” Dennis said.

The panel also found it is likely Three Expo’s injuries will be “redressed by a favorable decision in this case” and remanded the case for further proceedings.

The Dallas City Attorney’s office declined to comment on the panel’s opinion.

Attorneys for Three Expo did not immediately respond to requests for comment Thursday afternoon, but its attorney Roger Albright told the Dallas Morning News on Wednesday the ruling “absolutely supports our legal position and the constitutional rights of Three Expo to have access to a public forum such as the Dallas Convention Center.”

 

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