NEW ORLEANS — The 5th U.S. Circuit Court of Appeals yesterday denied a motion to rehear the city of Dallas’ challenge to a suit waged by Exxxotica’s organizers.
Last month, the 5th Circuit found that a federal judge improperly dismissed Exxxotica’s free speech case filed after Dallas banned the show from a city-owned convention center.
The city banned the Exxxotica Dallas show after its 2015 expo drew protests from city officials and church leaders on moral grounds.
Exxxotica holds fan shows throughout metropolises across the U.S., including Denver, Chicago, Miami and Edison, N.J.
Although Dallas' city attorneys office at the time told its city council that banning Exxxotica 2016 might be unconstitutional, city leaders passed a resolution directing the city manager to reject a contract with Exxxotica for the lease of the Dallas Convention Center.
Exxxotica sued Dallas in February 2016, claiming the city violated its First Amendment rights by adopting a resolution banning the adult entertainment fan show as an impermissible use of a public facility under city code.
A federal judge dismissed the suit against the city on a technicality — the convention organizer lacked standing. The judge ruled Exotica Dallas — a subsidiary “ownership entity” of Exxxotica’s corporate parent, Three Expo — contracted with the city for the 2015 show and Three Expo hadn’t shown the resolution would stop the 2016 festival from happening.
The 5th Circuit, however, ruled that Exxxotica’s corporate parent established the elements required for standing on each of its claims, including a violation of its rights of freedom of speech, equal protection and freedom from bill of attainder.
“It is undisputed that because of Three Expo’s inability to stage Exxxotica 2016 as planned, it suffered economic damages in loss of revenues from the convention, causing it to lose net profits and defrayal of the cost of advance publicity and other expenses,” an appeals panel wrote in its ruling that effectively sends the case back to the lower court.
Yesterday, 5th Circuit Judge James Dennis wrote in his order that because “no member of the panel nor judge in regular active service of the court having requested that the court be polled on rehearing en banc, the petition for rehearing en banc is denied.”
Dallas Mayor Mike Rawlings today declined comment to XBIZ on the city’s next step in the case.
As the case goes back to the lower court, Dallas could seek a review of the 5th Circuit’s decision by the U.S. Supreme Court; it also could settle the case with Exxxotica.
The Dallas Morning News recently published an editorial advising city leaders to settle the suit. The paper warned of attorneys’ fees likely to be awarded to Exxxotica if the case continues in the courtroom.
“Now the city is back on the hook for mounting legal bills, something its attorneys surely knew was coming despite the brief reprieve from a lower court,” the paper said. “Dallas ought to stop this fight now and seek to settle the case, even if that means letting the porn convention take place.”
