182 F. Supp. 3d 614
N.D. Tex.2016Background
- Three Expo Events, LLC (promoter of adult-content conventions) contracted with the City of Dallas to hold Exxxotica at the Kay Bailey Hutchison Convention Center in August 2015; the event occurred and the parties dispute whether contractual and law violations occurred there.
- After the 2015 event, City officials (including the Mayor and Council) voted 8–7 to adopt a resolution directing the City Manager not to enter into a contract with Three Expo for a 2016 Exxxotica event.
- Three Expo sued under 42 U.S.C. § 1983 seeking a preliminary injunction to enjoin enforcement of the Resolution and to compel the City to contract for a May 20–22, 2016 event, alleging First Amendment (viewpoint) discrimination and Fourteenth Amendment violations.
- The City defended that the Convention Center is a commercially managed forum, that Three Expo breached contractual promises and that unlawful/lewd conduct and secondary effects occurred at the 2015 event, justifying refusal to contract again.
- The court assumed some Exxxotica content was First Amendment–protected speech but found Three Expo had not shown the Convention Center is a designated public forum; instead it treated the Center as a limited/nonpublic forum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Forum status: Is the Convention Center a designated public forum? | The Center is opened to the public for events and thus is a public forum requiring strict scrutiny. | The Center is a commercially managed venue (limited/nonpublic forum); no evidence it was intentionally opened as a public forum. | Three Expo failed to show a designated public forum; Center treated as limited/nonpublic forum. |
| Reasonableness of exclusion: Was refusal to contract reasonable given forum purpose? | The City’s refusal was pretextual and targeted Exxxotica’s message. | The City reasonably relied on breaches, unlawful/lewd conduct, and secondary effects to decline another contract. | City’s decision was reasonable in light of the Convention Center’s commercial/economic purpose. |
| Viewpoint discrimination: Did the Council act to suppress Three Expo’s viewpoint? | The Resolution targeted positive messages about sexuality and access to sexually explicit materials. | The Resolution was content-neutral on its face; decision was based on expected conduct and prior breaches, not viewpoint. | No evidence showed viewpoint-based motivation; the action was viewpoint neutral. |
| Standing / redressability: Could court relief remedy Three Expo’s alleged injury? | Injunction compelling contract would redress First Amendment injury. | City argued other laws/ordinances might independently bar the event, making relief non-redressive. | Court found Three Expo adequately pleaded Article III standing and redressability for preliminary injunction purposes. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements for Article III) (establishes injury, causation, redressability tests)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (forum analysis; government may preserve property for intended use)
- Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (forum designation: government intent and practice determine public forum)
- Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (forum categories and analysis)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (viewpoint discrimination is an egregious form of content discrimination)
- Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666 (distinguishing general access vs selective access; nonpublic forum standards)
- Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (government need not permit all speech on property it controls)
- Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (upholding sexually oriented business regulation as valid time, place, manner regulation)