The city's lawyers, Tom Brandt and Scott Bergthold, told U.S. District Court Judge Sidney Fitzwater not to even look at the potential First Amendment implications of the city of Dallas' banning Exxxotica from the Kay Bailey Hutchison Convention Center. The attorneys representing Three Expo events, Exxxotica's parent company, called the city out as an aggressive censor of the legally protected free speech of Exxxotica and its founder, J. Handy. Handy wants an injunction that would force the city to let him schedule Exxxotica 2016.
The city's argument breaks down into a few easy pieces. The convention center, Brandt argued Monday, is not a public forum. It's a commercial enterprise operated by the city. That being the case, the city can grant and deny access to the convention center as it sees fit to further its commercial interests. It's an argument that lines up nicely with Dallas Mayor Mike Rawlings argument that Exxxotica is bad for the city's brand. (No one ever seems to bring up the impact on Dallas' brand from scheduled events like the 2018 Southern Baptist Convention or 2018 NRA national meeting.)
An attorney for the city showed the court video Monday that he says shows conduct that violated Exxxotica's 2015 contract. One clip showed a man with his face planted firmly in a performer's G-string covered butt.
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Still, even if the convention center is a public forum, the city is paying attorneys about $4,000 a day to say that Exxxotica can't seek First Amendment relief because Handy doesn't have "clean hands." That's to say, violations the city says Exxxotica made to the contract it signed before hosting the 2015 event mean that the city is just banning a bad actor from its property, not creating a prior restraint on Handy and Exxxotica's free speech.
Brandt showed the court just over a minute of video Monday that he says shows both conventioneers and exhibitors engaging in conduct that violated Exxxotica's 2015 contract. 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. Bergthold later told the judge that those simulated sex acts, as well as the commerce that took place at the convention, meant that Exxxotica should be covered by the city's Sexually Oriented Business ordinance and banned from the convention center by statute, because the hall is less than 1,000 feet from a school.
Handy's lawyers countered, as they have throughout the run up to Monday's hearing, that the city's ban amounts to a simple prior restraint. The convention center is a public forum because the city allows groups of all types to use it, and did nothing after last year's convention about any of the alleged illegal activity at the conference, Michael Murray said.
Temporary uses are not subject to the Sexually Oriented Business ordinance, he said, pointing to an opinion issued by Dallas City Attorney Warren Ernst, who urged that he did not believe the ban against Exxxotica was constitutional when the Dallas City Council voted 8-7 to create it in February.
Handy said after the hearing that if he'd been made aware that the city had issues with last year's Exxxotica, he would've fixed them. Handy said the same goes for this year: If the city wants to limit the porn stars at the convention to bikinis rather than pasties and G-strings, that's fine by him.
Handy and his defense team said that, if they are going to pull off Exxxotica 2016 on its originally proposed dates, May 20 to 22, they need a ruling on the temporary injunction from Fitzwater this week. If not, they'll continue to fight for different dates, Handy said. He has no plans to seek out a different Texas city, or a different Dallas venue, to host his expo.
