Hair, Farrakhan and Miss Gay America: Why Exxxotica May Win Its Lawsuit
Who wouldn't want this guy in their city's convention center?
One of the most striking things about the run-up to the trial in Three Expo Events v. The City of Dallas — the fight over Dallas City Council's vote to ban the Exxxotica adult expo from the Kay Bailey Hutchison Convention Center — is the unanimity with which both sides seem to think the city of Dallas will lose.
In supporting the ban, Dallas Mayor Mike Rawlings said that he wasn't going to "hide behind judges' robes." Council member Philip Kingston, who voted against the ban, has said that as long as it remains in place, Dallas will be the venue for porn conventions in the United States, and if the city doesn't want to host them it will have to keep writing checks. When council member Adam McGough backed the ban by citing the city's sexually oriented business statute, he was immediately corrected by Dallas City Attorney Warren Ernst, who said the section of the city charter regulating things like strip clubs and sex shops doesn't apply to temporary uses. None of the six other members of the council who voted for the ban have said that they think the city will win in court. Their position, as articulated District 5 council rep Rickey Callahan, a former government teacher, is basically to stick their fingers in their ears and blow the Constitution a raspberry. Callahan said he wasn't going to let "activist" judges tell him what to do.
In a brief filed in U.S. District Court late last month, Exxxotica's lawyers state clearly why their client's case is so strong — it's built primarily upon precedents established in some pretty old cases.
First off, there's Southeastern Promotion Ltd. v. Conrad. In 1974, the U.S. Supreme Court ruled 6-3 that the city of Chattanooga, Tennessee, had acted unconstitutionally when it banned a performance of the musical Hair from a city-leased theater. Justice Harry A. Blackmun said in the majority opinion that restraining speech in a city-owned forum before it happened risked "freewheeling censorship."
In 1979, the city of Burbank, California, tried to ban a series of rock concerts featuring the likes of Blue Oyster Cult and Patti Smith from the municipally owned Starlight Bowl. The "hard rock" shows, the city argued, would, among other things, attract “homosexual crowds." Cinevision, the company putting on the concerts, eventually won a $4.6 million verdict in August 1985. The court found that because the Starlight Bowl was a publicly owned property meant for expressive behavior, it was a public forum. The city could not, the 9th Circuit Court of Appeals eventually ruled, regulate the type of speech that occurred in that forum as long as there was no public safety concern. Burbank's police chief said that Todd Rundgren, set to perform in the Cinevision series, had caused no problems during a previous show at the venue in 1976. (It's worth noting that Dallas Police Chief David Brown has similarly said that there were no crimes observed by undercover vice cops at the 2015 version of Dallas Exxxotica.)
In 1983, the organizers of the Miss Gay America pageant sued Oklahoma City after its City Council tried to ban the pageant from the city's convention center for being immoral. A U.S. District Court ruling in that case points directly to Dallas' battle with Exxxotica.
"Particularly disturbing to this Court is Defendants’ conduct in dealing with Plaintiff’s application. Defendants made no effort to follow the clear dictates of the U.S. Supreme Court, even after discussion with legal counsel and even though reminded of the pertinent cases by Plaintiff’s counsel in his letter of July 28, 1983. Instead, in the face of clear-cut mandates, Defendant Johnson unilaterally rejected the application without investigation and based only on his own opinion.
Providing wholesome entertainment is an admirable motive, but government officials at all levels must shoulder the responsibility of following the law and upholding the Constitution, even when to do so is unpopular."
Again, a federal court ruled that an event cannot be banned from a public forum for content if that content is legal.
The city of Cleveland tried to keep Louis Farrakhan and the Nation of Islam from using its convention center in 1995 on the basis that Farrakhan planned to speak to a male-only audience, as is customary for the Nation of Islam. Ostensibly, the city was stuck between violating the Nation of Islam's right to freely exercise their religion and the right of women who might wish to attend the event from being discriminated against, but a U.S. District Court eventually ruled that mandating the event admit women would materially change the content of Farrakhan's message, and allowed the event to go forward, again denying a municipality the ability to regulate an event simply because it didn't like the event's content.
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