Dallas Mayor Mike Rawlings is happy that U.S. District Judge Sidney Fitzwater refused to force the city of Dallas to schedule Exxxotica's 2016 sex expo at the Kay Bailey Hutchison Convention Center. We know because he said so. "I am pleased with U.S. District Judge Sidney A. Fitzwater’s ruling that our City Council’s decision to ban this pornography expo was reasonable and not based solely on the subject matter," Rawlings said in a statement.
The city has claimed that it banned Exxxotica to protect its commercial interest in the convention center and because Exxxotica violated its 2015 contract by allowing lewd and illegal activity at the expo. Three Expo events, Exxxotica's parent company, argues that the city's contract denial amounts to a prior restraint on free speech.
"The judge acknowledged our strong evidence that this expo violated both terms of its contract and state and local laws. As noted in the ruling, our attorneys produced evidence of the expo’s commission of 'fraud, crimes, breach of contract, and violations of the City’s [SOB] ordinance,'" Rawlings said. "Many have criticized the City Council's decision and the cost to defend it. They predicted a quick loss in the courtroom. They were wrong."
Texas Attorney General Ken Paxton was more concise. “We are pleased with this ruling,” he said. “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."
But Rawlings and Paxton probably shouldn't count their chickens, or their flourishing businesses, before they hatch.
The thing about Fitzwater's rulings — he also declined the city's request to dismiss the case entirely Thursday — is that, should Exxxotica have the wherewithal, this case is going to trial. That's could cost the city a ton of cash.
"The thing that I think is not going to survive is the idea that anything about the city's action against Exxxotica was anything other than viewpoint discrimination," says Dallas City Council member Philip Kingston. "This is pretty much classic viewpoint discrimination."
Fitzwater agreed with the city's lawyers that the Exxxotica ban was based on conduct and the best business interest of the convention center, rather than discrimination against the views promoted by Exxxotica. In doing so, he disregarded multiple statements made by Dallas city council members — Adam McGough, for example, called pornography lethal and "a lie" — and stuck to the text of the city's ordinance, which makes no mention of Exxxotica's content.
"Even if the [city's lawyers' claims about Exxxotica] are true. It's, at best, a pretext for what really was the majority's revulsion at the type of speech that goes on at Exxxotica," Kingston says.
Kingston, who voted against the ban, has said that the best outcome for the city was for Exxxotica to win quickly, saving the city money. Now that the case could go to trial, Dallas taxpayers could be on the hook for attorney's fees and, now that Exxxotica is probably not going to happen this year, damages.
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J Handy, Exxxotica's founder, signaled a willingness to go after the city as hard as it takes.
"Although we're disappointed in today's decision, we did understand that getting the injunction would have been a very high legal hurdle," he says via text. "We were obviously happy the judge denied the city's motion to dismiss and we look forward to moving ahead with the case. We are in this for the long haul. You can't put a time, or a dollar, limit on the freedom of speech."
Any long haul, whatever the end result is, is bad for the city, Dallas appellate attorney Chad Ruback says. Even if it wins at trial and withstands an appeal — Ruback doesn't think that will happen, he previously told us he believes the city will "get spanked" — the city is going to be on the hook for a huge legal bill. Fighting all the way to the end of the appeals process — which Ruback estimates could take as long as three years — could wind up costing almost $4.5 million at the city's current, $4,000-a-day burn rate.
"Four million dollars could fix a lot of streets," Ruback says.