DALLAS—The City of Dallas, now joined by Texas Attorney General Ken Paxton, has decided on a new tactic in its attempt to prevent U.S. District Judge Sidney Fitzwater from overturning the City Council's resolution denying Three Expo Events, owner of the Exxxotica Lifestyle Convention, the use of the city-owned Kay Bailey Hutchison Convention Center.
"[T]he Convention Center is a nonpublic forum because the City—'acting as a proprietor'—manages the Convention Center as a commercial asset," Paxton's brief claims. "The Supreme Court has repeatedly recognized that government use of a property as a 'commercial enterprise' is 'inconsistent with an intent to designate the [property] as a public forum.' Because the Convention Center is a commercial enterprise that is intended to promote economic development in Dallas, the Convention Center is a nonpublic forum."
In other words, even though the city had no previous problems in renting out the convention center to groups such as the Southern Baptist National Convention (which is due to return in 2018), the ASI Show ("helping your business grow by bringing together suppliers, decorators and distributors within the advertising specialty industry"), and the "Roe Memorial Mass," mourning the continued existence of abortion rights under Roe v. Wade, all that speech was OK. Currently, the convention center has on its schedule the Republican Party of Texas (which reportedly will be discussing Texas' secession from the Union), the National Rifle Association (NRA) National Meeting, and Fan Expo Dallas, described as "the largest comics, sci-fi, horror, anime, and gaming event in Texas," yet the defendants still claim that they can discriminate among what forms of speech they're willing to allow on the convention center grounds.
Or as J. Michael Murray, prominent First Amendment attorney, put it, "If they [Exxxotica] wanted to put on a three-day Bible study, they wouldn’t have banned it."
Paxton was joined in his amicus brief by the Dallas Citizens Council, a so-called "nonprofit organization comprising business and civic leaders" whose former chairman was Roy Lee Hunt, the reactionary religio-conservative billionaire who pushed the City Council to adopt its anti-Exxxotica resolution in the first place.
During the first hearing on Three Expo Events/Exxxotica's Motion for a Preliminary Injunction to stop the City Council from banning Exxxotica from the convention center, which took place yesterday morning, Murray also argued that Dallas' current sexually oriented businesses ordinance, which prevents adult retailers from locating within 1,000 feet of schools and other "sensitive uses," doesn't apply to Exxxotica because the convention is a "temporary use," unlike the brick-and-mortar establishments to which the ordinance does apply. It's a position with which at least two city councilmembers as well as Dallas City Attorney Warren Ernst agree—which is why Ernst isn't representing the city and the other defendants in the lawsuit.
Instead, the city hired far-right Chatanooga, Tenn.-based attorney Scott D. Bergthold to defend its actions—at a cost so far of $100,000—about $4,000 per day—with the city seeking yet another $145,000 to press its meritless case.
"Right now our cost of litigating this lawsuit is well over $100,000 a month. I have concerns about the legal position that we've taken and how much of it is frivolous and just a waste of taxpayers' money," said Scott Griggs, one of the councilmembers opposed to the city's ban. "Have no doubt about it: All of this is taxpayers' money. We may say here that this is coming from an enterprise fund, but the bottom line is that all of this is co-mingled money and this is taxpayer money. Certainly, this money could've been used for something else."
Griggs was referring to a statement by Dallas Mayor Mike Rawlings, who said, when asked by Dallas Observer reporter Stephen Young where the funds for defense were coming from, "We've got insurance on this, we self-insure, so we're not taking money away from the streets or poor hungry children. This is why we put an insurance package together over [at the convention center] for that enterprise fund and we'll let the judges make the call and we'll move on down the road."
In other words, the city at some point shuffled some tax money into a "self-insurance" "enterprise fund," and now is pretending that such tax funds didn't in fact come from the citizenry—except that such funds appear to be running out, which is why City Manager A.C. Gonzalez appeared before the City Council last Wednesday to ask for a $145,000 bump.
No one knows just how much this court fight will cost Dallas—and of course, when it loses, it will likely have to pay Three Expo's legal bills as well as its own.
The city's other defense of its resolution has been the claim that explicit sexual acts took place during Exxxotica's last outing at the convention center just last year. In fact, Bergthold and his team played a one-minute video compilation of footage shot at the last Exxxotica for the judge, which reportedly depicted "Women in the video ... wearing just enough lingerie to keep them from being fully nude, playing with whipped cream, and coming into contact with male guests with their 'breasts & buttocks'." According to another report, "One clip showed a man with his face planted firmly in a performer's G-string covered butt, another showed a man similarly situated near a woman's G-string covered crotch."
It remains to be seen whether that minute of softcore sex play will sway Judge Fitzwater more than the testimony of Dallas Police Chief David Brown, who had previously testified under oath before the City Council that his department had sent undercover vice officers into the convention for more than eight hours over two days to see if any attendee or exhibitor was violating any of Dallas' lewdness or obscenity ordinances. His conclusion? No laws were broken—and indeed, no arrests were made inside the convention, though at least one scuffle between an attendee and a protester did result in a citation.
Three Expo has stated publicly that unless it gets a positive verdict from the judge on its petition by the end of this week, it will not be able to hold Exxxotica as scheduled May 20-22 at the convention center. That may not mean that Exxxotica will be canceled altogether, as Three Expo may be able to find another venue for the event—but even if so, the lawsuit will continue, and Dallas will continue to be on the hook for hundreds of thousands of dollars in legal bills... and it's unlikely that any local oil billionaire will be stepping up to pay them.
(H/t to Susan and David Bradley for all the help.)
