In an opinion issued last month, a federal district court in Texas denied an event promoter’s request for a preliminary injunction to compel the City of Dallas to contract with the promoter for use of the Dallas Convention Center in connection with a three-day adult entertainment expo called “Exxxotica.”
The promoter contracted with the City to hold Exxxotica at the Convention Center in 2015. Prior to that event, the promoter had promised the City that no one under eighteen would be admitted to the event, sexual activities would be prohibited and no obscenity or public lewdness would be permitted. However, despite the promoter’s promises, the City had evidence, including video footage, of likely underage attendees and lewd conduct at the event.
The promoter viewed the 2015 Exxxotica event as an economic success and sought to book dates with the city for a second Exxxotica event to be held in 2016. However, the City dragged out the contract negotiation process and eventually passed a resolution expressly barring the city manager from entering into a contract with the promoter.
Contending that the City’s resolution violated its First Amendment rights, the promoter filed a motion requesting a preliminary injunction to enjoin the enforcement of the resolution and compel the City to enter into a contract with the promoter for a 2016 Exxxotica event.
The court denied the motion, finding that the promoter was not likely to succeed on the merits of its First Amendment challenge. The key to the court’s decision was its determination that the Convention Center constituted a limited public forum. Government faces a lighter burden to show that its action does not infringe any First Amendment rights in a limited public forum than the burden it faces in a traditional or designated public forum.
The court pointed to two factors it considered in making its determination regarding the type of forum. The court considered (1) the government’s intent with respect to the forum and (2) the nature of the forum and its compatibility with the expressive activity at issue. The promoter’s statistics regarding the size and capacity of the Convention Center were not sufficient to show that the City designated the convention center to be the functional equivalent of a traditional public forum. To support a finding that that the Convention Center constituted a designated public forum, the promoter needed to provide evidence that the Convention Center was open to all types of expressive activity or that the City’s permission was not required in order to use the space.
Restrictions on expressive activity in a limited public forum are permissible as long as the restrictions are reasonable in light of the purpose served by the forum and viewpoint neutral. Given the economic purposes to be served by the Convention Center, the court found that it was reasonable that the City would try to avoid a repeat of the public lewdness that occurred during Exxxotica in 2015 in order to serve the best interest of the City. With respect to viewpoint neutrality, the court found that the City’s resolution constituted a content-based, rather than a viewpoint-based, restriction. Seeking to exclude only one group did not necessarily render the resolution a viewpoint-based restriction. Moreover, the promoter did not clarify the viewpoint that was supposedly being suppressed. Accordingly, the court denied the promoter’s motion for a preliminary injunction.
We will update our readers as the legal battle regarding the merits of the promoter’s First Amendment challenge continues.