Exxxotica's Preliminary Injunction

Case 3:16-cv-00513-D Document 6 Filed 02/26/16
Page 1 of 5 PageID 75
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
THREE EXPO EVENTS, L.L.C.,
Plaintiff,
vs.
CITY OF DALLAS, TEXAS,
A.C. GONZALEZ, RON KING,
MIKE, RAWLINGS, CASEY THOMAS,
CAROLYN KING ARNOLD, RICKEY
D. CALLAHAN, TIFFINNI A. YOUNG,
ERIK WILSON, B. ADAM McGOUGH,
and JENNIFER STAUBACH GATES,
Defendants.
CIVIL ACTION NO.

3:16-cv-00513-D
PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION

TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE:
Plaintiff, THREE EXPO EVENTS, L.L.C. (Expo) moves for a preliminary
injunction to enjoin Defendants, City of Dallas, Texas, A.C. Gonzalez, Ron King, Mike
Rawlings, Casey Thomas, Carolyn King Arnold, Rickey D. Callahan, Tiffinni A. Young,
Erik Wilson, B. Adam McGough, and Jennifer Staubach Gates, their officers, agents,
servants, attorneys and others acting in active participation or concert with them from
interfering with the 2016 Exxxotica Expo being held at the Dallas Convention Center by
seeking to enforce the February 10, 2016 Resolution No. 160308, refusing to contract with
Plaintiff or otherwise and directing Defendants to enter into a contract with Expo for the
PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION - Page 1
planned 2016 convention. As grounds and pursuant to F.R.C.P. 65, Plaintiff states the
following:
1.
As more fully set forth at length in Plaintiffs Original Complaint, Expo held
its three-day event known as Exxxotica at the Dallas Convention Center in August, 2015
without violation of law or other incidents. Exxxoticas 2016 return to the Convention
Center is scheduled for May 20-22, 2016. On February 10, 2016, the City Council passed
Resolution No. 160308 which banned Exxxotica from the Convention Center by
preventing Defendant A.C. Gonzalez as City Manager or his designee Defendant Ron
King as Executive Director of the Convention Center from entering into a contract with
Expo.
2.
Unless restrained, Defendants, their officers, agents and employees, will
continue to prevent Plaintiff from contracting with the Dallas Convention Center and/or
holding its three (3) day adult entertainment expo known as Exxxotica at the Dallas
Convention Center in May, 2016 or on any other dates. Such denial will cause Plaintiff
to suffer irreparable harm if an injunction is not issued. The Exxxotica event is protected
speech and conduct within the scope of the First Amendment. There is a strong
presumption of irreparable injury in cases involving infringement on First Amendment
rights. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689-90, 49 L.Ed. 547 (1976); [t]he
loss of First Amendment freedoms for even minimal periods of time, unquestionably
constitutes irreparable injury. Id. Plaintiff shall lose not merely money, but also
customers, vendors and exhibitors and the goodwill created with them over time
resulting in a loss which is difficult or impossible to calculate. Hooters Insurance v. City
of Texarkana, Texas, 897 F.Supp. 946, 949 (E.D. Tex. 1995). The public will be denied access
to the entertainment and education offered by Plaintiff.
3.
The City of Dallas is not harmed by the granting of a preliminary injunction
to prevent the Defendants from banning the return of Exxxotica to the Dallas Convention
Center while the constitutionality of the actions in question is judicially determined.
There has been no claim of improper conduct. The City is not harmed by an inability to
enforce the Resolution because any alleged illegal conduct by any of the Plaintiffs
attendees or vendors may subject such individuals to individual criminal prosecution.
Defendants have ongoing enforcement mechanisms if Plaintiff or individuals allegedly
involved with Plaintiff violates state law (e.g., Texas Penal Code or municipal ordinance),
through issuance of citations or arrests. The potential enforcement of these state criminal
laws which would not in any way be hampered or impaired by the requested relief
protects the public from any fear of unlawful conduct on the premises of the Dallas
Convention Center; conduct which is neither desired nor condoned by Plaintiff.
4.
There is a substantial likelihood Plaintiff will succeed on the merits because
the denial of access to a public forum based upon subjective opinions regarding the
subject matter or content of the event is a prior restraint violative of the First Amendment.
5.
The granting of injunctive relief will not disserve the public interest because
it is always in the public interest to uphold constitutionally protected rights; even a

temporary prohibition of the exercise of these rights is extreme and legally unacceptable.
6.
Plaintiff requests the Court enter a Preliminary Injunction:

(a)
enjoining the Defendants, their officers, agents, servants, attorneys

and others acting in active participation or concert with them from
interfering with the 2016 Exxxotica Expo being held at the Dallas
Convention Center through enforcing Resolution No. 160308,
refusing to contract with Plaintiff or by other conduct; and
b)
ordering the Defendant City of Dallas, Texas, Defendant A.C.

Gonzalez as City Manager of the City of Dallas and Defendant Ron
King as Executive Director of the Dallas Convention Center to enter
into a contract with Expo for the lease of the Dallas Convention
Center for a three-day adult entertainment expo on May 20-22, 2016
in accordance with their prior agreements and course of dealing.
WHEREFORE, Plaintiff, Three Expo Events, L.L.C., moves for a preliminary

injunction on the grounds set forth herein. This Motion incorporates the Complaint, the
exhibit attached to the Complaint, and Plaintiffs Memorandum in Support of Preliminary
Injunction with accompanying Appendix filed herewith. Plaintiff requests that a hearing
on the requested preliminary injunction be set and that upon hearing, the preliminary
injunctive relief requested be granted.
Respectfully submitted,
/s/ Roger Albright_______________________
ROGER ALBRIGHT
(State Bar No. 009 745 80)
Law Offices of Roger Albright
3301 Elm Street
Dallas, Texas 75226-2562
Telephone: 214.939.9224
Facsimile: 214.939.9229
E-mail: rogeralbright@gmail.com
/s/ J. Michael Murray____________________

J. MICHAEL MURRAY
(Ohio Bar No. 0019626)
jmmurray@bgmdlaw.com
BERKMAN, GORDON, MURRAY & DeVAN
55 Public Square, Suite 2200
Cleveland, Ohio 44113-1949
(216) 781-5245
(216) 781-8207 (Facsimile)
COUNSEL FOR PLAINTIFF
Case 3:16-cv-00513-D Document 6-1 Filed 02/26/16

DALLAS DIVISION
THREE EXPO EVENTS, L.L.C.,
Plaintiff,
vs.
CITY OF DALLAS, TEXAS,
A.C. GONZALEZ, RON KING,
MIKE, RAWLINGS, CASEY THOMAS,
CAROLYN KING ARNOLD, RICKEY
D. CALLAHAN, TIFFINNI A. YOUNG,
ERIK WILSON, B. ADAM McGOUGH,
and JENNIFER STAUBACH GATES,
Defendants.
CIVIL ACTION NO.

3:16-cv-00513-D
ORDER GRANTING
PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION
Before the Court is Plaintiff Three Expo Events, L.L.C.s Motion for Preliminary
Injunction.
Plaintiff, Three Expo Events, L.L.C. appeared by its duly authorized corporate
representative and attorneys of record.
Defendants, City of Dallas, Texas, A.C. Gonzalez, Ron King, Mike Rawlings, Casey
Thomas, Carolyn King Arnold, Rickey D. Callahan, Tiffinni A. Young, Erik Wilson, B.
Adam McGough and Jennifer Staubach Gates, appeared by their attorney of record.
The Court, having considered the Motion, affidavit, evidence and the arguments,
presented, is of the opinion that the Motion for Preliminary Injunction should be granted.
ORDER GRANTING PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION - Page 1
IT IS THEREFORE ORDERED that the Motion for Preliminary Injunction filed by

the Plaintiff is GRANTED.
IT IS FURTHER ORDERED that:
(a)
the City of Dallas, Texas, A.C. Gonzalez, Ron King, Mike Rawlings,
Casey Thomas, Carolyn King Arnold, Rickey D. Callahan, Tiffinni
A. Young, Erik Wilson, B. Adam McGough, Jennifer Staubach Gates,
their officers, agents, servants, attorneys and others acting in active
participation or concert with them be enjoined from interfering with
the 2016 Exxxotica Expo being held at the Dallas Convention Center
through enforcing Resolution No. 160308, refusing to contract with
Plaintiff or by other conduct; and
(b)
the Defendant City of Dallas, Texas, Defendant A.C. Gonzalez as

City Manager of the City of Dallas and Defendant Ron King as
Executive Director of the Dallas Convention Center be ordered to
enter into a contract with Expo for the lease of the Dallas Convention
Center for a three-day adult entertainment expo on May 20-22, 2016
in accordance with their prior agreements and course of dealing.
IT IS FURTHER ORDERED that this preliminary injunction will be effective only

upon the posting by Plaintiff, of a bond in the amount of $_________________ with the
District Clerk.
SIGNED this the _____ day of _____________________, 2016.
________________________________
UNITED STATES DISTRICT JUDGE

DALLAS DIVISION
THREE EXPO EVENTS, L.L.C.
Plaintiff,
) CASE NO. 3:16-cv-00513-D

)
)
) JUDGE SIDNEY A. FITZWATER
-vs-
CITY OF DALLAS, TEXAS, et al.,

Defendant.
)
)
)
)
)
)
PLAINTIFFS MEMORANDUM IN SUPPORT

OF MOTION FOR A PRELIMINARY INJUNCTION
ROGER ALBRIGHT
(State Bar No. 009 745 80)
rogeralbright@gmail.com
LAW OFFICES OF ROGER ALBRIGHT
3301 Elm Street
(214) 939-9222
(214) 939-9229 (Facsimile)
J. MICHAEL MURRAY
(216) 781-5245
(216) 781-8207 (Facsimile)
Attorneys for Plaintiff
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
CERTIFICATION OF CONFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PLAINTIFF IS ENTITLED TO A PRELIMINARY INJUNCTION RESTRAINING
THE ENFORCEMENT OF RESOLUTION 160308 AND DIRECTING
DEFENDANTS TO ENTER INTO A CONTRACT WITH PLAINTIFF FOR ITS
EXPO ON MAY 20-22, 2016... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A.
There is a Substantial Likelihood that Plaintiff Will Succeed on the Merits.. . . . . 6

1.
Plaintiff has a First Amendment right to present a forum on human

sexuality, and the adult citizens of Dallas have a First Amendment
right to access that expression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.
Dallass municipal convention center is a public forum subject to the

strictures of the First Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.
The First Amendment forbids restricting expression presented at the

convention center because of disagreement with its content. . . . . . . . . . . . 8
4.
The content-based Resolution passed by Defendants cannot survive

strict scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B.
Plaintiff Faces a Substantial Threat of Irreparable Injury If an Injunction Is

Not Issued. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C.
No Harm Will Result by the Issuance of a Preliminary Injunction. . . . . . . . . . . . 14
D.
The Grant of a Preliminary Injunction Will Not Disserve the Public

Interest .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
TABLE OF AUTHORITIES
Page
CASES
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,
457 U.S. 853 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Cinevision Corp. v. City of Burbank, 745 F.2d 560 (9th Cir. 1984). . . . . . . . . . . . . . . . . . . . 6, 7, 9
City of Cleveland v. Nation of Islam, 922 F. Supp. 56 (N.D. Ohio 1995). . . . . . . . . . . . . . . . . . . 10
Deerfield Med. Ctr. v. City of Deerfield Beach,
661 F.2d 328 (5th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Elrod v. Burns, 427 U.S. 347 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Norma Kristie, Inc. v. City of Oklahoma,
572 F. Supp. 88 (W.D. Ok. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10, 12
Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist.,
579 F.3d 502 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Perry Education Association v. Perry Local Educators Association,
460 U.S. 37 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12
Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U.S. 819 (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9, 12
Roth v. United States, 354 U.S. 476 (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Southeastern Promotions Ltd. v. Conrad,
420 U.S. 546 (1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8
Texans for Free Enterprise v. Texas Ethics Comn,
732 F.3d 535 (5th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14, 15
Texas v. Johnson, 491 U.S. 397 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12
United States v. Playboy Entt Grp., Inc., 529 U.S. 803 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ii
TABLE OF AUTHORITIES (contd)

Page
CONSTITUTIONAL PROVISIONS
United States Const., amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
STATUTES, RULES AND REGULATIONS

Dallas Ordinances, Chapter 41A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 14
iii
CERTIFICATION OF CONFERENCE
(RULE 7.1 (b), LOCAL RULES OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS)
On February 24, 2016, Plaintiffs counsel emailed Defendants counsel, advised Plaintiff
would be filing a motion for preliminary injunction and inquired whether they were opposed.
Plaintiffs counsel has received no substantive response. It is assumed this Motion is opposed.
STATEMENT OF FACTS
The City of Dallas has owned and operated its municipal convention center since 1957. It has
offered its space to a variety of exhibitions, trade shows, and events. Its website gives a flavor of the
diversity of the events staged there: sport shows with participatory games, player appearances and
clinics; business conventions and international industrial organization conferences; automobile
auctions; body-builder and talent competitions; a convention for zombie lovers; and a world-record
breaking sandwich-making event.1
In August 2015, Plaintiff Three Expo Events, L.L.C. held an exposition at the convention
center. The expo was a typical one for the venue; there were seminars and booths, contests, product
displays, and celebrity appearances to inform, educate, and entertain the attendees. What was not
typical was its subject: sex. The expo, styled Exxxotica, was a positive celebration and educational
event for adultsonly adultswho were curious about and interested in sex, or in the words of the
Supreme Court, the great and mysterious motive force in human life, [that] has indisputably been
a subject of absorbing interest to mankind through the ages. Roth v. United States, 354 U.S. 476,
487 (1957)an observation as true today as it was in 1957 when the Court made its observation in
Roth and the Dallas Convention Center opened its doors.
See http://www.dallasconventioncenter.com/contact-us/the-convention-center/;
http://www.dallasconventioncenter.com/calendar/.
Preparations for Exxxotica began in March 2014. Plaintiff contacted the appropriate city
officials and fully disclosed the nature of the event. The Chief of Police, the mayor, and the former
U.S. Senator for whom the convention center is now named were made aware, Plaintiff visited the
site, and negotiated and signed a contract for the event.
By all accounts, the exposition was a great success. Ten to Fifteen thousand adults attended.
And the City of Dallas and area businesses gained revenue from it.
Chief David Brown of the Dallas City Police Department reported to Dallas City Council on
February 10, 2016 that undercover officers who had been in attendance had observed no criminal
activity whatsoever, including no violations of Texas obscenity laws. (An audio recording of the
February
10,
2016,
Dallas
City
Council
meeting
is
available
at
http://citysecretary.dallascityhall.com/cMeetings.html). The Chief also confirmed there had been no

increase in crime in the convention center area during the three-day event.
On the heels of the successful event, Plaintiff began working with the convention center to
prepare for a reprise in 2016. May 20-22, 2016 was reserved for a second Exxxotica at the
convention center. Plaintiff made inquiries as to the status of the contract, and as of January 19,
2016, was told that convention center personnel were working with the Dallas Police Department
and would do their best to get the contract to Plaintiff the following week.
The Executive Director of the convention center reportedly prepared the contract and sent
it to the Dallas City Attorney for review. The City Attorney met with city officials and confirmed
that Plaintiff was entitled to hold its expo at the convention center. He told them that the First
Amendment prohibited Dallas from banning a lawful event because it disagreed with the views and
messages expressed at it, and further explained to them that City Code Chapter 41A (Dallas
Ordinance pertaining to SOBs) did not apply to Plaintiffs temporary event at the municipal
2
convention center. That should have resolved the issue. It did not.
Mayor Mike Rawlings directed the City Attorney to draft a resolution directing the City
Manager to not enter into a contract with Three Expo Events, LLC, for lease of the Dallas
Convention Center for a three-day adult entertainment expo. Dallas Resolution No. 160308, which
is attached, reads:
WHEREAS, Three Expo Events, LLC requests to contract with the City to hold a
three-day adult entertainment expo at the Dallas Convention Center; Now,
Therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DALLAS:
Section 1. That the City Council directs the City Manager to not enter into a contract
with Three Expo Events, LLC, for the lease of the Dallas Convention Center.
Section 2. That this resolution shall take effect immediately from and after its
passage in accordance with the provisions of the Charter of the City of Dallas, and
it is accordingly so resolved.
(Emphasis sic); APP. 1.
The resolution was placed on the agenda for the February 10, 2016 Dallas City Council
Meeting. Agenda at 7, Addendum, attached; APP. 12.
At the February 10, 2016 council meeting, nineteen citizens appeared and expressed their
opposition to use of the convention center for Plaintiffs event. After the comment period concluded,
the Mayor moved to approve the resolution, which was seconded by Council Member Adam
McGough.
The ensuing discussion made clear that the reason for the resolutions directive prohibiting
the City Manager to enter into a contract with Plaintiff for its expo at the convention center was the
content of the expression at the event. The Mayor and a number of council members conjured up a
parade of horribles that had nothing to do with what actually took place at the event, and everything
to do with its subject matter.

The Mayor began by explaining that as the Citys chief brand officer, he did not believe
Plaintiffs event fit with the Citys brand. He told council the City was not in the business of the
commerce of sex and expressed his opinion that such an event should not be at a city-run venue.2 In
advocating for his resolution, the Mayor acknowledged the constitutional issues it raised, but said
he was not afraid to take the court system on. He explained he couldnt be for an event that
staged certain sexual displays. He put it to council to decide as a group.
Four council members spoke against the resolutionemphasizing that the City Attorney had
advised against the resolution and had explained the First Amendment precedent which made the
proposed action unconstitutional. In response to Council Member Kingstons questioning, the City
Attorney affirmed that Dallass ordinance regulating sexually oriented businesses did not apply to
and could not be relied on as a basis to ban Plaintiffs expo. Also in response to Council Member
Kingstons questioning, the Chief of Police affirmed that no criminal activity had been engaged in
at the expo, nor had it caused any increase in crime in the surrounding area. Each of the members
opposing the resolution decried the cost of litigation that would be incurred in defending the
unconstitutional resolution and consequent ban. Their views did not prevail, however.
The proponents of the resolution variously explained their reasons for voting for the
resolution. All were based on the fact that the subject matter of the expo was sex. Council Member
McGough stated that he viewed the expo as pornography, which he believed was lethal. Council
Member Thomas said he would vote in favor of the resolution, so he could sleep at night. Council
The Mayors comments begin around 2:52 on the audio recording of the meeting.
http://citysecretary.dallascityhall.com/cMeetings.html. Comments of various council members
follow.
4
Member Arnold was emphatic that she did not want something like this in the City of Dallas and
did not want the city to become known for its annual pornography convention. Council Member
Young linked the expo with domestic violence, prostitution, and human trafficking. Council Member
Gates said her support was based on her opposition to an industry that exploits women and children
and that Plaintiffs event contributed to the degradation of women everywhere. Council Member
Callahan pointed out the events name had 3 xs, meaning it did not involve soft porn, but wanted
people to think it was the real stuff.
When the discussion concluded, the Mayor and a majority of the Council voted and approved
Resolution No. 160308, prohibiting the City Manager from contracting with Plaintiff to lease the
municipal convention center.
Plaintiff filed suit and seeks a preliminary injunction restraining Defendants from enforcing
Resolution No. 160308 and ordering the City of Dallas to honor its commitment to enter into a
contract with Plaintiff for its expo on May 20 to 22, 2016 at Dallass convention center.
ARGUMENT
PLAINTIFF IS ENTITLED TO A PRELIMINARY INJUNCTION RESTRAINING THE
ENFORCEMENT OF RESOLUTION 160308 AND DIRECTING DEFENDANTS TO
ENTER INTO A CONTRACT WITH PLAINTIFF FOR ITS EXPO ON MAY 20-22, 2016.
A preliminary injunction will be issued if the movant establishes:
(1) a substantial likelihood of success on the merits, (2) a substantial threat of
irreparable injury if the injunction is not issued, (3) that the threatened injury if the
injunction is denied outweighs any harm that will result if the injunction is granted,
and (4) that the grant of an injunction will not disserve the public interest.
Texans for Free Enterprise v. Texas Ethics Comn, 732 F.3d 535, 537 (5th Cir. 2015). Each of those
four factors are met here.
A.
There is a Substantial Likelihood that Plaintiff Will Succeed on the Merits.
Certain well-established First Amendment precedent governs the issues here, about which
the City Attorney apparently advised the Mayor and the Dallas City Council Members.
That precedent directs that Dallass Mayor and Council Members cannot discriminate against
expression because they disagree with it. Rosenberger v. Rector and Visitors of Univ. of Va., 515
U.S. 819, 829 (1995); Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2230 (2015). Nor can they
prohibit the expression of an idea simply because their constituents find[] the idea offensive or
disagreeable. Texas v. Johnson, 491 U.S. 397, 414 (1989). These bedrock principles govern any
regulation of expression at its convention center, which was designed for and dedicated to expressive
activities. Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 555 (1975).
1.
Plaintiff has a First Amendment right to present a forum on human sexuality,

and the adult citizens of Dallas have a First Amendment right to access that
expression.
Exxxotica is dedicated to exploring human sexualityin all its facets: some controversial,
(open marriage, bondage); some biological (improving orgasm, marital aids); some entertaining
(games and contests). Only adults can attend the event; the presentations and seminars involve no
prohibited sexual activities or public lewdness. The expression presented at the event is fully
protected by the First Amendment. United States v. Playboy Entt Grp., Inc., 529 U.S. 803, 811
(2000). Plaintiff, therefore, has a right to present its expression at the Dallas convention center, and
adults interested in attending the eventthere were up to 15,000 the preceding yearand viewing
materials and presentations, listening to various speakers and educators, and participating in its
perfectly lawful activities have a First Amendment right to its access. Southeastern Promotions, 420
U.S. at 554-55; Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 854
(1982); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 567-68 (9th Cir. 1984).
6
2.
Dallass municipal convention center is a public forum subject to the

strictures of the First Amendment.
Governmental regulation of a place determined to be a public forum is limited by the

constraints of the First amendment. Cinevision, 745 F.2d at 569. The Supreme Court in Perry
Education Association v. Perry Local Educators Association, 460 U.S. 37, 44-46 (1983) identified
three different types of public forums: quintessential public forums like streets and parks; public
property which government has opened for use as a place for expressive activity, and public
property such as military bases or jails that are not traditionally designated a forum for public
communication.
Dallass convention center is public property which the City of Dallas has opened for a place
for expressive activity, just like the municipal auditorium in Southeastern Productions. Id. at 555.
By design and purpose, the convention center is a place for like-minded people to convene and
express and exchange ideas. Its website represents that it offers:
2,000,000 Total Square Feet
1,000,000 Square Feet of Exhibit Space
65,124 Square Feet of Ballrooms (3 total, which can each be divided into 4)
88 Meeting Rooms
21,290 Square Foot Arena with 9,816 seats
1,750 Seat Theater with dressing rooms.
http://www.dallasconventioncenter.com/contact-us/the-convention-center/
It is, therefore, a public forum, subject to the rights secured by the First Amendment. See
Norma Kristie, Inc. v. City of Oklahoma, 572 F. Supp. 88 (W.D. Ok. 1983) (finding Oklahoma City
convention center run by public trust was public forum).
3.
The First Amendment forbids restricting expression presented at the

convention center because of disagreement with its content.
The Supreme Court in Southeastern Promotions set forth the definitive standards for a
governments regulation of expression in such forums. The plaintiff in Southeastern Promotions
applied to use Chattanooga, Tennessees municipal theater to present, Hair, the controversial rock
musical. 420 U.S. at 547. The City turned down the application, finding that the production would
not be in the best interest of the community. Id. at 548. The Supreme Court held that the Citys
discretionary rejection of the plaintiffs application to use Chattanoogas municipal facilities simply
because it decided that its production would not be in the best interest of the community, was an
unconstitutional prior restraint. Id. at 552.
The Citys denial of plaintiffs application, the Court found, was indistinguishable in its
censoring effect from the official actions condemned in a long line of its decisions providing
relief where public officials had forbidden the plaintiffs the use of public places to say what they
wanted to say. Id. at 552-53. The Court continued:
The restraints took a variety of forms, with officials exercising control over different
kinds of public places under the authority of particular statutes. All, however, had
this in common: they gave public officials the power to deny use of a forum in
advance of actual expression.
Id. at 553. The Court found that intolerable under the First Amendment.
Rosenberger sets forth the black letter law pertaining to government regulation of expression
in public forums:
It is axiomatic that the government may not regulate speech based on its substantive
content or the message it conveys. Police Dept. of Chicago v. Mosley, 408 U.S. 92,
96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). Other principles follow from this
precept. In the realm of private speech or expression, government regulation may not
favor one speaker over another. Members of City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772
(1984). Discrimination against speech because of its message is presumed to be
8
unconstitutional. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641643, 114 S.Ct. 2445, 2458-2460, 129 L.Ed.2d 497 (1994). These rules informed our
determination that the government offends the First Amendment when it imposes
financial burdens on certain speakers based on the content of their expression. Simon
& Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 112
S.Ct. 501, 507-508, 116 L.Ed.2d 476 (1991). When the government targets not
subject matter, but particular views taken by speakers on a subject, the violation of
the First Amendment is all the more blatant. See R.A.V. v. St. Paul, 505 U.S. 377,
391, 112 S.Ct. 2538, 2547, 120 L.Ed.2d 305 (1992). Viewpoint discrimination is thus
an egregious form of content discrimination. The government must abstain from
regulating speech when the specific motivating ideology or the opinion or perspective
of the speaker is the rationale for the restriction. See Perry Ed. Assn. v. Perry Local
Educators Assn., 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983).
Rosenberger, 515 U.S. at 828-29. Defendants have violated these basic constitutional principles.
The situation here mimics that in Cinevision Corp. There, Burbank City Council had rejected
the plaintiffs plans to present six concertsBlue Oyster Cult, Jackson Browne, Roxy Music, Todd
Rundgren, Patti Smith, and Al Stewart at the city-owned Starlight Bowl because the artists played
hard rock music. 745 F.2d at 566, n. 1. (It approved concerts by Poco and Robert Palmer. Id.).
The court first dispensed with the citys arguments that banning the six concerts was justified
because of law enforcement concerns with criminal activities at hard rock concerts:
[A] general fear that state or local narcotics or other laws will be broken by people
attending the concerts cannot justify a content-based restriction on expression. See,
e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546...(1975)....Normally,
law enforcement officers can deal adequately and effectively with unlawful activity
of that nature at the time it occurs. That is a proper exercise of the police power;
censorship is not.
Id. at 572.
The court went on to question whether council had a good faith basis for those concerns in
the face of a recordlike the one hereaffirmatively showing those concerns were unfounded:
Moreover, there is reason to question the extent to which any good faith concern over
problems relating to law enforcement (irrelevant as those concerns may be for
purposes of the first amendment) played a serious part in Councils determinations.
The facts surrounding the Todd Rundgren concert illustrate this point. Even though
9
the members of the Police Commission who made a recommendation concerning the
proposed concert suggested that City Council approve the concert, the Council
disapproved it. The pre-concert investigation report prepared by the Police
Department expressly stated that there had been no problems at any of Rundgrens
concerts in other cities. In fact, in 1976, Todd Rundgren performed in the Starlight
Bowl, and according to the Chief of Police, there were no security or traffic
congestion problems; [t]he crowd, for the most part, was orderly, and there were no
citizen complaints. Similarly, although there was no evidence whatsoever that here
had been any problems at his previous concerts, the City Council rejected a proposed
Jackson Browne concert.
Id.
That left Burbanks councils generalized objections to hard rock music, id. at 573,
pledges to present entertainment that inculcate[d] the proper community values in its youth, id.,
and rationales based on arbitrary factors such as the attraction of homosexual crowds because,
thats not what we want, id. at 576, as the bases for refusing to allow the Plaintiff to present
concerts by the six performers. The court made short work of them:
The record before us leaves little room for any argument by the City of Burbank that
the City Council rejected the proposed groups on constitutionally permissible
grounds. Excluding a performer because of his political views, or those of the crowd
he might attract, or because the performer may say unorthodox things, as well as
considering such arbitrary factors as the lifestyle or the race of the crowd a performer
would attract, is not constitutionally permissible.
Id. at 577. See also, Norma Kristie, Inc., 572 F. Supp. at 92 (finding city violated plaintiffs First
Amendment rights in refusing to allow it to present Miss Gay America Pageant, a beauty contest
for transvestites, as immoral); City of Cleveland v. Nation of Islam, 922 F. Supp. 56, 59 (N.D. Ohio
1995) (finding city could not justify refusal to allow Louis Farrakhan lecture at its convention center
to a men-only audience based on claim it violated laws against gender discrimination).
The record here demonstrates that Defendants refusal to permit the City Manager to enter
into a contract with Plaintiff to present its event at the convention center was based solely on their
disagreement with the content of the expression presented at Exxxotica. The Mayor stated that the
10
eventechoing the City of Chattanoogas pronouncement that the production of Hair, was not in
the best interest of the community was not in keeping with Dallass brand. He also offered that
there were issues of gender here, and sexually themed presentations at the event prevented him
from being for it.
Council Member McGough told the audience that he took comfort in knowing when he
tucked his boys in at night, he had stood up against the lie perpetrated by porn by voting in favor
of the resolution barring Plaintiffs event.
Council Member Thomas explained he was making a political decision that allowed him
to sleep at night by voting in favor of the resolution.
Council Member Arnold concluded Plaintiffs event was a pornography convention, and
to her, porn means, no; no, today; no, tomorrow.
Council Member Young acknowledged the comments by her pastor during the public
comment period, registered her condemnation of the event, and further offered her disapproval of
scantily clad women at the car shows held at the center, calling for a policy to address that issue as
well.
Council Member Gates explained her vote by saying she viewed Plaintiffs expo as part of
an industry that exploits women and children and was not letting in the Citys doors, people we
dont approve of.
And Council Member Callahan pointed to the three xs in the events name and pronounced
it a good day to give up Exxxotica.
Not a single member supporting the prior restraint imposed by Resolution 160308 offered
a reason other than their objection to the fact that the subject matter of the seminars and programs
at Exxxotica was sex. In fact, their comments displayed a complete lack of curiosity about what
11
actually took place at the event. It did not matter to them that the Chief of Police affirmed that there
had been no problems at the event a year earlier. Nor did it matter that the City Attorney told them
Plaintiffs event was protected by the First Amendment. Their only rationale for banning the expo
was it involved sexand they disagreed with it and found it offensive. That rationale, of course, is
unconstitutionally impermissible. Rosenberger, 515 U.S. at 829; Reed, 135 S. Ct. at 2230; Johnson,
491 U.S. at 414.
The federal district judges observations in Norma Kristie about the Defendants denial of
the Plaintiffs application to use the Oklahoma City convention center for the Miss Gay America
Pageant, are apt here:
Particularly disturbing to this Court is Defendants conduct in dealing with Plaintiffs
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 Plaintiffs 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.
572 F. Supp. at 92.
4.
The content-based Resolution passed by Defendants cannot survive strict

scrutiny.
As a separate matter, Resolution 160308 is an unconstitutional content-based regulation of

expression.
The Court in Reed v. Town of Gilbert held that a town ordinance creating distinctions in sign
regulations based on a signs contenttemporary directional signs being treated less favorably
than ideological signs and political signswas a content-based regulation of speech, subject to strict
scrutiny. 135 S.Ct. at 2224.
12
It explained in determining whether a regulation is content based or content neutral, a court

must first look at whether a regulation of speech on its face draws distinctions based on the
message a speaker conveys; if it does, that ends the inquiry. Id. at 2227.
Turning to the ordinance before it, the Court found:
On its face, the Sign Code is a content-based regulation of speech. We thus have no
need to consider the government's justifications or purposes for enacting the Code to
determine whether it is subject to strict scrutiny.
Id.
The Court went on to explain:
A law that is content based on its face is subject to strict scrutiny regardless of the
government's benign motive, content-neutral justification, or lack of animus toward
the ideas contained in the regulated speech.
Id. at 2228 (citation omitted).
On its face, Resolution 160308 treats Plaintiffs expression less favorably than everyone
elses. It unqualifiedly precludes the City Manager from entering into a contract with Plaintiff to
hold a three-day adult entertainment expo. It, therefore, must satisfy strict scrutinymeaning it must
further a compelling governmental interest and be narrowly tailored to achieve that interest. Id. at
2227, 2231.
The reasons offered by the Mayor, who proposed the resolution, and the Members who voted
for it, supply no compelling interest for it. The event was open only to adults, so there were no issues
regarding the protection of minors. The Chief of Police verified that at the event the preceding year,
no laws had been brokenincluding those prohibiting obscenity or public lewdness. The only reason
offered for the resolution was an unconstitutional one: Defendants did not like the message of the
13
event.3
B.
Plaintiff Faces a Substantial Threat of Irreparable Injury If an Injunction Is

Not Issued.
Plaintiff has been absolutely banned from presenting its adult entertainment event at Dallass
convention center. Resolution 160308 is a prior restraint issued in violation of the First Amendment.
The Fifth Circuit recently emphasized in Texans for Free Enterprise:
We have repeatedly held...that [t]he loss of First Amendment freedoms for even
minimal periods of time constitutes irreparable injury justifying the grant of a
preliminary injunction.
732 F.3d at 539 citing Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506
(5th Cir. 2009); Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981);
Elrod v. Burns, 427 U.S. 347 (1976).
The loss of Plaintiffs First Amendment freedoms to present its speech to the thousands of
adults who are interested in it, constitutes irreparable injury, warranting the issuance of a preliminary
injunction.
C.
No Harm Will Result by the Issuance of a Preliminary Injunction.
The event that Plaintiff seeks to present at Dallass convention center has an established track
record verified by Dallass Chief of Police. There were no criminal activitiesincluding violations
of Texas obscenity laws or laws prohibiting public lewdnessat the event. Nor did the event create
any problems in the area surrounding the convention center.
Fifteen thousand adults who apparently found the event to be of interest to their lives,
attended it last August. Defendants in their remarks at the February 10, 2016 did not identify a single
As the City Attorney confirmed at the February 10, 2016 Council meeting, the Dallas land
use ordinance regulating sexually oriented businesses, Chapter 41A, does not apply to Plaintiffs
event at the convention center.
14
difference between the successful, lawful event that had occurred in August and the one they directed
the City Manager to refuse to enter into a contract for.
That some Dallas citizens have voiced objection to the event is not a harm justifying the
denial of a preliminary injunction. That is a consequence of living in a democracy where all
voicesincluding their owncan be heard without fear of censorship.
D.
The Grant of a Preliminary Injunction Will Not Disserve the Public Interest.
Again, as the Fifth Circuit recently stated: [I]njunctions protecting First Amendment
freedoms are always in the public interest. Texans for Free Enterprise, 732 F.3d at 539 (citation
omitted). This case is no exception.
CONCLUSION
Plaintiffs motion for a preliminary injunction should be granted and Defendants should be
restrained from enforcing Resolution No. 160308 and ordered to honor their commitment to enter
into a contract with Plaintiff for its expo on May 20 to 22, 2016 at Dallass convention center.
/s/ Roger Albright
ROGER ALBRIGHT
(State Bar No. 009 745 80)
rogeralbright@gmail.com
LAW OFFICES OF ROGER ALBRIGHT
3301 Elm Street
(214) 939-9222
(214) 939-9229 (Facsimile)
J. MICHAEL MURRAY
(216) 781-5245
(216) 781-8207 (Facsimile)
Attorneys for Plaintiff
15

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Exxxotica&#39;s Preliminary Injunction

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Case 3:16-cv-00513-D Document 6 Filed 02/26/16

IN THE UNITED STATES DISTRICT COURT

CIVIL ACTION NO.

PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION

PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION - Page 1

Case 3:16-cv-00513-D Document 6 Filed 02/26/16

Unless restrained, Defendants, their officers, agents and employees, will

PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION - Page 2

Case 3:16-cv-00513-D Document 6 Filed 02/26/16

The City of Dallas is not harmed by the granting of a preliminary injunction

There is a substantial likelihood Plaintiff will succeed on the merits because

PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION - Page 3

Case 3:16-cv-00513-D Document 6 Filed 02/26/16

it is always in the public interest to uphold constitutionally protected rights; even a

Plaintiff requests the Court enter a Preliminary Injunction:

enjoining the Defendants, their officers, agents, servants, attorneys

ordering the Defendant City of Dallas, Texas, Defendant A.C.

WHEREFORE, Plaintiff, Three Expo Events, L.L.C., moves for a preliminary

PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION - Page 4

Case 3:16-cv-00513-D Document 6 Filed 02/26/16

/s/ J. Michael Murray____________________

PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION - Page 5

Case 3:16-cv-00513-D Document 6-1 Filed 02/26/16

IN THE UNITED STATES DISTRICT COURT

CIVIL ACTION NO.

ORDER GRANTING PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION - Page 1

Case 3:16-cv-00513-D Document 6-1 Filed 02/26/16

IT IS THEREFORE ORDERED that the Motion for Preliminary Injunction filed by

the Defendant City of Dallas, Texas, Defendant A.C. Gonzalez as

IT IS FURTHER ORDERED that this preliminary injunction will be effective only

ORDER GRANTING PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION - Page 2

Case 3:16-cv-00513-D Document 6-1 Filed 02/26/16

SIGNED this the _____ day of _____________________, 2016.

ORDER GRANTING PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION - Page 3

Case 3:16-cv-00513-D Document 7 Filed 02/26/16

IN THE UNITED STATES DISTRICT COURT

) CASE NO. 3:16-cv-00513-D

CITY OF DALLAS, TEXAS, et al.,

PLAINTIFFS MEMORANDUM IN SUPPORT

Case 3:16-cv-00513-D Document 7 Filed 02/26/16

There is a Substantial Likelihood that Plaintiff Will Succeed on the Merits.. . . . . 6

Plaintiff has a First Amendment right to present a forum on human

Dallass municipal convention center is a public forum subject to the

The First Amendment forbids restricting expression presented at the

The content-based Resolution passed by Defendants cannot survive

Plaintiff Faces a Substantial Threat of Irreparable Injury If an Injunction Is

No Harm Will Result by the Issuance of a Preliminary Injunction. . . . . . . . . . . . 14

The Grant of a Preliminary Injunction Will Not Disserve the Public

Case 3:16-cv-00513-D Document 7 Filed 02/26/16

Case 3:16-cv-00513-D Document 7 Filed 02/26/16

TABLE OF AUTHORITIES (contd)

STATUTES, RULES AND REGULATIONS

Case 3:16-cv-00513-D Document 7 Filed 02/26/16

Case 3:16-cv-00513-D Document 7 Filed 02/26/16

http://citysecretary.dallascityhall.com/cMeetings.html). The Chief also confirmed there had been no

Case 3:16-cv-00513-D Document 7 Filed 02/26/16

Case 3:16-cv-00513-D Document 7 Filed 02/26/16

to do with its subject matter.

Case 3:16-cv-00513-D Document 7 Filed 02/26/16

Case 3:16-cv-00513-D Document 7 Filed 02/26/16

There is a Substantial Likelihood that Plaintiff Will Succeed on the Merits.

Plaintiff has a First Amendment right to present a forum on human sexuality,

Case 3:16-cv-00513-D Document 7 Filed 02/26/16

Dallass municipal convention center is a public forum subject to the

Governmental regulation of a place determined to be a public forum is limited by the

Case 3:16-cv-00513-D Document 7 Filed 02/26/16

The First Amendment forbids restricting expression presented at the

Exxxotica's Preliminary Injunction

Exxxotica's Preliminary Injunction

SIGNED this the _ day of _________________, 2016.