Three Expo Events, L.L.C. v. City of Dallas
Three Expo Events, L.L.C. v. City of Dallas
Opinion of the Court
' MEMORANDUM OPINION • AND ORDER
Plaintiff Three Expo Events, L.L.C. (“Three Expo”)—a promoter of adult-content conventions—moves for a preliminary injunction compelling defendant City of Dallas, Texas (the “City” or “City of Dallas”)
I
Three Expo is an event promoter that, along with its affiliates, has for the past decade staged conventions “with erotic, but non-obscene messages” throughout the country. Compl. ¶ 1. The City of Dallas is the owner and operator of the Convention Center. Since 1957, the Convention Center has offered space to a variety of exhibitions, trade shows, and other events.
In 2014 Three Expo, through its director, Jeffrey Handy (“Handy”), contacted City officials about staging an exposition at the Convention Center in calendar year 2015. According to Three Expo, the exposition, called “Exxxotica,” was “a positive celebration and educational event for adults—only adults—who were curious about and interested in sex,” and was to consist of seminars and booths, contests, product displays, and celebrity appearances to inform, educate, and entertain the attendees. P. Br. 1.
Three Expo alleges that, in preparation for Exxxotica, it fully disclosed to City officials the nature of the event. It represented in its promotional literature that Exxxotica would be “a gathering place of all things exotic, erotic, sensual and sexy.” D. App. 55. Three Expo also stated that “[Exxxotica] is not a ‘pornographic’ event. There is no live nudity or lewd acts, but rather an upscale gathering of products and services catering to the adult lifestyle.” Id. According to the City, Handy specifically represented that Exxxotica always abides by its “Operating Requirements,” which state, inter alia, that all patrons and personnel at Exxxotica are prohibited from “[t]he display of less than completely and opaquely covered genitals, pubic region, anus or female breasts below
In January 2015 the City and Handy, on behalf of “Exotica Texas, LLC,”
The 2015 Exxxotica expo took place as scheduled. Three Expo maintains that the event was a “success.” P. Br. 2. It contends that ten to fifteen thousand adults attended; that the City of Dallas and area businesses gained revenue from the event; that undercover police officers who attended the expo did not observe any criminal activity, including violations of Texas obscenity laws; and that the Chief of the DPD confirmed that there had been no increase in crime in the Convention ’ Center área during the three-day event.
The City offers a different view of what occurred at the 2015 Exxxotica expo. According to the City, Three Expo violated many of the terms of its Operating Requirements, despite Handy’s representation that he would monitor compliance with its terms and supervise the show and exhibitor conduct at all times. For example, the City has introduced evidence that many of the women at Exxxotica wore only pasties or tape covering their nipples and areolas and otherwise exposed their breasts; that sexual activities, including “the fondling or other erotic touching of genitals, pubic region, buttocks, anus or female breasts,” D. Br. 5, took place at Exxxotica and were observed and recorded; that Three Expo did not arrange for drapes or screens, to be positioned so as to block the view of the exhibit space from the lobby, and , that, when entrance and exit doors were open to permit passage, persons in the Convention Center lobby could observe adult material; that identification was not uniformly checked, and attendees of Exxxotica saw a young woman in the exhibit space who did not appear to be age 18; and that Three Expo failed to post signs at the entrance doors prohibiting unlawful conduct, as it had promised. The City also contends that Three Expo violated state law by permitting lewd acts, assault, and human trafficking to occur at Exxxotica, and violated various provisions of the City of Dallas’s sexually oriented business ordinance, Dallas, Tex., City Code § 41A (2015) (the “SOB Ordinance” or “Chapter 41A”).
Subsequent to the 2015 Exxxotica expo, Handy advised the Convention Center that he wanted to schedule a similar convention for 2016. Convention Center staff provided Handy several tentative dates for 2016, Handy indicated that his preferred dates were May 20-22, 2016, and he asked to be penciled in for those dates. On January 19, 2016 the Convention Center advised Three Expo that it was still working on getting a
In early February 2016, Dallas Mayor Mike Rawlings (“Mayor Rawlings”) advised the Dallas City Council (“City Council”) that he did not want Exxxotica to return to Dallas in 2016. Despite the fact that the City Attorney had concluded that the First Amendment prohibited the City from banning Exxxotica and that Chapter 41A did not apply to Three Expo’s temporary event at the Convention Center, May- or Rawlings asked the City Attorney’s Office to draft a resolution directing the City Manager not to enter into a contract with Three Expo for lease of the Convention Center. On February 10, 2016, by a vote of eight to seven, the City Council passed Resolution No. 160308 (“Resolution”), which provides:
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.
Compl. Ex. 1 (bold font omitted). Three Expo alleges that the City Council passed the resolution because its members disliked Exxxotica’s subject matter.
On February 24, 2016 Three Expo brought this lawsuit against the City of Dallas and various City officials in their official capacities. It asserts claims under 42 U.S.C. § 1983, alleging, inter alia, that the City’s denial of the use of municipal facilities for the Exxxotica convention based solely on the personal opinions or beliefs of a slim majority of the City Council as to the subject matter or content of the production violates Three Expo’s First and Fourteenth Amendment rights. In addition to damages and declaratory relief, it seeks an injunction enjoining the City of Dallas from enforcing the Resolution and ordering the City to honor its commitment to enter into a contract with Three Expo so that it can hold its exposition on May 20-22, 2016 at the Convention Center.
On March 4, 2016 Three Expo filed the instant motion for a preliminary injunction, which the City of Dallas opposes. Three Expo asks the court to enjoin the City from interfering with the 2016 Exxxotica expo that Three Expo seeks to hold at the Convention Center, and ordering that the City enter into a contract with Three Expo for a lease at the Convention Center for a three-day adult entertainment expo on May 20-22, 2016, in accordance with their prior agreements and course of dealing. Amici Curiae The State of Texas and The Dallas Citizens Council have filed a brief in support of the City and in opposition to Three Expo’s preliminary injunction motion. The court has heard oral argument.
II
Before the court decides the merits of Three Expo’s motion, it must first address the City’s contention that Thi-ee Expo lacks standing.
The City contends that Three Expo lacks constitutional standing, which requires that a litigant establish three elements: (1) ah injury-in-faet that is concrete and actual or imminent, not hypothetical; (2) a fairly traceable causal link between the injury and the defendants’ actions; and (3) that the injury will likely be redressed by a favorable decision. See, e.g., Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009). According to the City, Three Expo cannot meet the “redressability” requirement of constitutional standing because the SOB Ordinance prohibits Exxxotica from operating at the Convention Center, and because Exxxotica is not eligible for a contract to operate at the Convention Center regardless of the Resolution, Three Expo’s alleged harm from the Resolution is not redressable. Three Expo does not respond specifically to the City’s standing argument.
Three Expo has adequately pleaded the facts necessary for the court to conclude that it has Article III standing. The City’s argument that the court cannot issue the relief Three Expo requests goes to the merits of Three Expo’s claims rather than to the ability of a court order to redress Three Expo’s alleged injury. Three Expo has pleaded a constitutional injury—the deprivation of its First Amendment rights—that is capable of being redressed by the relief Three Expo seeks—an injunction restraining the City from enforcing the Resolution and ordering the City to enter into a contract with Three Expo for its exposition on May 20-22, 2016 at the Convention Center. Accordingly, the court holds that Three Expo has adequately pleaded the redressability element of Article III standing.
Ill
The court now turns to the merits of Three Expo’s motion for a preliminary injunction.
To obtain a preliminary injunction, Three Expo must establish the following: (1) a substantial likelihood that it will prevail on the merits; (2) a substantial threat that it will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury outweighs the threatened harm the injunction may do to defendants; and (4) that granting the preliminary injunction will not disserve the public interest. E.g., Jones v. Bush, 122 F.Supp.2d 713, 718 (N.D.Tex. 2000) (Fitzwater, J.), aff'd, 244 F.3d 134 (5th Cir. 2000) (unpublished table decision). Three Expo must satisfy all four requirements. “A preliminary injunction ‘is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion.’ ” Id. (quoting White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989)). “The decision to, grant a preliminary injunction ‘is to be treated as the exception rather than the rule.’ ” Id. (quoting Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985) (stating that movant must “clearly carr[y] the bur
“Findings of fact and conclusions of law disposing of a request for a preliminary injunction are not binding at trial on the merits.” Mylett v. Jeane, 910 F.2d 296, 299 (5th Cir. 1990) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)). None of the court’s conclusions at the preliminary injunction stage carries over to the determination of the merits of Three Expo’s claims. See, e.g., Zen Music Festivals, L.L.C. v. Stewart, 2004 WL 1660452, at *4 (N.D.Tex. July 23, 2004) (Fitzwater, J.) (granting defendants’ motion for summary judgment after having granted plaintiffs earlier motion for preliminary injunction). Accordingly, that Three Expo has not succeeded on its preliminary injunction motion does not necessarily mean that, with further discovery and development of the evidentiary record, it cannot prevail on the merits.
IV
The court need only decide whether Three Expo has established a substantial likelihood that it will prevail on the merits of its action against the City.
A
The First Amendment Free Speech Clause provides that “Congress shall make no law ... abridging the freedom of speech.”
Claims under the First Amendment Free Speech Clause are typically analyzed in three steps. First, the court must “decide whether [the activity at issue] is speech protected by the First Amendment, for, if it is not, [the court] need go no further.” Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Second, assuming the activity “is protected speech, [the court] must identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic.” Id. And, third, the court must assess whether the government’s justifications for restricting speech in the relevant forum “satisfy the requisite standard.” Id.
B
In this case, the first step requires no lengthy discussion. At oral' argument, counsel for the City acknowledged that “there are -portions of what happened at Exxxotica that are within the outer ambit of .the First Amendment,” Tr. 29.
C.
Even protected speech is not equally permissible in all places and at all times. Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their -right -to free speech, on every type of Government property without regard to the nature of .the property or to the disruption that might be caused by the speaker’s activities.
Cornelius, 473 U.S. at 799-800, 105 S.Ct. 3439. “Rather, the extent of scrutiny given to a regulation of speech—in effect, how [the court] examine[s] the directness with which it promotes the government’s goals and the degree to which it burdens speech—depends on whether the regulation applies in a public or nonpublic forum.” Boardley v. U.S. Dep’t of Interior, 615 F.3d 508, 514 (D.C.Cir. 2010).
The Supreme Court has recognized four distinct categories of forums:
In addition to traditional public forums, “a public forum may be created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” Cornelius, 473 U.S. at 802, 105 S.Ct. 3439; see also Walker, 135 S.Ct. at 2250 (describing a “designated public forum” as one “which exists where ‘government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose.’ ” (citation omitted)); Hotel Emps. & Rest. Emps. Union, Local 100 v. N.Y.C. Dep’t of Parks & Rec., 311 F.3d 534, 545 (2d Cir. 2002) (noting that a designated public forum is one intentionally “opened for all types of expressive activity”). “A prototypical example of a designated forum is a public library.” Flaherty v. Knapik, 999 F.Supp.2d 323, 334 (D.Mass. 2014) (citation omitted). The state’s power to control a speaker’s access to these “designated public forums” is “subject to the same first amendment constraints that apply to traditional public forums.” Estiverne v. La. State Bar Ass’n, 863 F.2d 371, 376 (5th Cir. 1989).
“Public property which is not by tradition or designation a forum for public communication is governed by different standards.” Perry Educ. Ass’n, 460 U.S. at 46, 103 S.Ct. 948. In contrast to designated public forums, “limited public forums” describe forums opened for public expression of a limited type—for example
Finally, there is the “nonpublic forum,” which .describes public property that is not by tradition or designation open for public communication. “[A] forum may be considered nonpublic where there is clear evidence that the state did not intend to create a public forum or where the nature of the property at issue is inconsistent with the expressive activity, indicating that the government did not intend to create a public forum.” Estiverne, 863 F.2d at 376. Where the government “is acting as a proprietor, managing its internal operations, rather than acting as a lawmaker with the power to regulate or license, its action will not be subjected to the heightened review to which its actions as a lawr maker may be subject.” Int’l Soc’y for Krishna Consciousness, 505 U.S. at 678, 112 S.Ct. 2701; see also Walker, 135 S.Ct. at 2251. As with a limited public forum, the government can restrict access to a nonpublic forum as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s, view. Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677-78, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998).
D
Three Expo contends that the Convention Center is public property that the City “has opened for a place of expressive activity.” P. Br. 7 (citation omitted). It cites evidence about the size and capacity of the Convention Center as represented on the Convention Center’s website, and concludes that the Convention Center is therefore a public forum, .subject to the rights secured by the First Amendment.
The .City and Amici dispute that the Convention Center is a public forum. D. Br. 43; Amici Br. 3. Amici contend that, because the City, “acting as a proprietor,” manages the Convention Center as a commercially useful asset, the Convention Center is a nonpublic forum. Amici Br. 3. They cite the City’s annual budget
E
It is indisputable that the Convention Center is not a traditional public forum. It is rented for commercial purposes. It is not akin to a sidewalk, street, or park “that the public since time immemorial has used for assembly and general communication.” Fairchild, 597 F.3d at 758 (citation omitted). Instead, the question in this case is whether Three Expo has demonstrated that the Convention Center is at least a designated public forum, which would place a heavier burden on the City to show that its action did not infringe Three Expos’ First Amendment rights, or is a limited public forum, which imposes a lower burden. “The action—in this case and most others—exists at the line between designated and limited public forums.” Id. (citing Chiu, 260 F.3d at 346 (“Though the Supreme Court now clearly distinguishes designated public forums subject to strict scrutiny from limited public forums that are not, the line separating the two categories remains undefined.”)). Determining the nature of the forum is a fact-intensive inquiry. See, e.g., Verlo v. Martinez, 820 F.3d 1113, 1144, 2016 WL 1395205, at *24 (10th Cir. Apr. 8, 2016) (“[F]orum status is an inherently factual inquiry about the government’s intent and the surrounding circumstances that requires the district court to make detailed factual findings.”); Hopper v. City of Pasco, 241 F.3d 1067, 1091 (9th Cir. 2001) (“[WJhether a government entity intended to open a forum is an ‘inherently factual inquiry that should not be resolved without due attention to an underlying record.’ ” (quoting Air Line Pilots Ass’n, Int’l v. Dept. of Aviation of the City of Chicago, 45 F.3d 1144, 1152 (7th Cir. 1995))); Stewart v. D.C. Armory Bd., 863 F.2d 1013, 1014 (D.C.Cir. 1988) (“[T]he question of whether RFK Stadium is a public forum is inherently a factual one.”); Wandering Dago Inc. v. New York State Office of Gen. Servs., 992 F.Supp.2d 102, 123 (N.D.N.Y. 2014) (“It is clear that the forum analysis that the Court must undertake is a fact intensive analysis.”).
In Cornelius the Supreme Court explained:
The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse. Accordingly, the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not tradi-*627 tionaUy open to assembly and debate as a public forum. The Court has also examined the nature of the property and its compatibility with expressive activity to discern the government’s intent.
Cornelius, 473 U.S. at 802, 105 S.Ct. 3439 (citations omitted); see also Fairchild, 597 F.3d at 758-59 (“‘In distinguishing between the two types of forums, our precedent directs us to focus on two factors: (1) the government’s intent with respect to the forum, and (2) the nature of the forum and its compatibility with the speech at issue.’” (quoting Chiu, 260 F.3d at 346)). In deciding that the forum at issue in that case (a charity drive aimed at federal employees) was not a designated public forum, the Court was persuaded, inter alia, by the fact that “neither [the government’s] practice nor its policy [was] consistent with an intent to designate the [charity drive] as a public forum open to all tax-exempt organizations,” and that “there [was] no evidence suggesting that the granting of the requisite permission [was] merely ministerial.” Cornelius, 473 U.S. at 804, 105 S.Ct. 3439.
Three Expo does not offer any evidence that, in creating or operating the Convention Center, the City has intentionally opened up a nontraditional forum for public discourse. See Cornelius, 473 U.S. at 802, 105 S.Ct. 3439; Walker, 135 S.Ct. at 2250. In its brief, Three Expo contends that, like the municipal auditorium in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), “the convention center is -a place for like-minded people to convene and express and exchange ideas.” P. Br. 7. But in Southeastern Promotions there was evidence that the City of Chattanooga had intentionally designated its Memorial Auditorium as a place for public discourse.
Accordingly, the court concludes that Three Expo has not met its burden of establishing a substantial likelihood of success on the essential element that the Convention Center is a designated public forum and, in turn, that the Resolution is subject to strict scrutiny.
F
The court now considers whether the City has established that its decision not to contract with Three Expo in 2016 was reasonable in light of the Convention Center’s purpose. See Perry Educ. Ass’n, 460 U.S. at 50-51, 103 S.Ct. 948. In analyzing this question, the court is not confined to evidence of the City’s pre- or contemporaneously-expressed rationale for enacting the Resolution. Cf. Fantasy Ranch Inc. v.
The City maintains that it has “good-faith, lawful, constitutional reasons to exercise its freedom to decline to enter into a second contract with [Three Expo],” including Three Expo’s commission of “fraud, crimes, breach of contract, and violations of the City’s [SOB] ordinance.”
On this record, the City has proved that its posited justifications' for refusing to enter into a contract with Three Expo for Exxxotica in 2016 were reasonable in light of the purpose to be served by the Convention Center. As Amici point out in their brief, the Convention Center is a commercial enterprise intended to promote economic development and revenue generation for the City. It is reasonable, in light of this purpose, for the City to refuse to enter into a contract with Three Expo. First, there is evidence that shows that the City reasonably believed that Three Expo made fraudulent misrepresentations and breached certain aspects of its agreement with the City in connection with Exxxotica 2015. It is reasonable for the City to choose not to enter into a second contract with a party with whom it has previously dealt and who breached a prior agreement. There was conduct at Exxxotica in 2015— by no means isolated—that would ordinarily be regulated under the City’s SOB Ordinance:
Based on the record developed thus far, the court finds that the City has established that its decision not to contract with Three Expo in 2016 was reasonable in light of the purpose of the Convention Center. See Cornelius, 473 U.S. at 808, 105 S.Ct. 3439 (“The Government’s decision to restrict access to a nonpublic forum need
G
Finally, the court considers whether the City has established that its decision not to enter into a contract with Three Expo was viewpoint neutral.
Three Expo contends that the City’s “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 [the City Councilmem-bers’] disagreement with the content of the expression presented at Exxxotica.” P. Br. 11 (emphasis added). But in the First Amendment context, where the forum is limited or nonpublic, a content-based restriction on speech is permitted as long as it is designed to confine the forum to the limited and legitimate purposes for which it was created. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829-30, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); see also State of Tex. v. Knights of Ku Klux Klan, 58 F.3d 1075, 1080 (5th Cir. 1995) (“[T]he government is not required to act with content neutrality in limiting access to a nonpublic forum and may make ‘distinctions in access on the basis of. ..speaker identity.’” (quoting Perry Educ. Ass’n, 460 U.S. at 49, 103 S.Ct. 948)). It is only viewpoint discrimination that “is presumed impermissible when directed against speech otherwise within the forum’s limitations.” Rosenberger, 515 U.S. at 830, 115 S.Ct. 2510 (emphasis added).
The distinction between a permissible • content-based restriction on speech and an impermissible viewpoint-based restriction on speech, however, is “not a precise one.” Id. at 831, 115 S.Ct. 2510, “[Discrimination against one set of views or ideas is but a subset or particular instance of the more general phenomenon of content discrimination.” Id. at 830-31, 115 S.Ct. 2510. “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. Viewpoint discrimination is thus an egregious form of content discrimination.” Id. at 829, 115 S.Ct. 2510 (citation omitted). Nonetheless, “[t]he fact that the State wishes to exclude only one group with a certain viewpoint does not alone make the exclusion viewpoint-based.” Knights of Ku Klux Klan, 58 F.3d at 1081 (“The State’s desire to prevent the participation of the Klan in the [adopt-a-highway] Program is not due to the opinions of the Klan, but rather results from the foreseeable impact of Program participation by the Klan, given the past conduct of the Klan, upon the peace and privacy of the project residents and use of the State’s highways,”).
The preliminary injunction record does not support the finding that the City was actually motivated by a desire to suppress Three Expo’s viewpoint.
THE COURT: On that last point, the amici differentiate between discrimination based on content and viewpoint. What do you maintain is the viewpoint of your client that’s being suppressed. Not the content but the viewpoint.
[THREE EXPO’S COUNSEL]: The viewpoint—and I will answer that but one thing I think we should make clear is the Supreme Court has said that viewpoint discrimination is a particularly egregious form of content discrimination. They’re inseparable except that viewpoint discrimination is even more egregious. The viewpoint that the City Council proclaimed was inimical in their view to the best interest of the City of Dallas was the viewpoint that sexually explicit materials are good, that people should be exposed to seminars and healthy talks about human sexuality. The view is one that presents a positive view of human sexuality and of the right of people to have an access to sexually explicit materials and sexually explicit entertainment.
Tr. 11-12. Essentially, Three Expo’s counsel asserted that, in refusing to contract with Three Expo, the City Council was motivated by a desire to suppress Three Expo’s point of view that (1) sexually explicit materials are good, (2) people should be exposed to seminars and healthy talks about human sexuality, (3) one should have a positive view of human sexuality, and (4) people have a right to have an access to sexually explicit materials and sexually explicit entertainment. But Three Expo has failed to present any evidence that is sufficient to rebut the City’s showing that it declined to contract with Three Expo based on beliefs about the expected content of the Exxxotica expo rather than opposition to any of these fom' viewpoints.
H
Based on the facts developed thus far, the court finds that Three Expo has not demonstrated a substantial likelihood of success on the merits. Three Expo has failed to establish that the Convention Center is anything more than a limited public forum. And the City has established that its refusal to enter into a contract for an Exxxotica expo in 2016 was both reasonable and viewpoint neutral.
Because the party seeking a preliminary injunction must carry the burden of persuasion on all four factors, and because Three Expo has failed to carry its burden of showing a substantial likelihood of success on the merits, the court need not address the remaining three factors. See, e.g., TRAVELHOST, Inc. v. Figg, 2011 WL 6009096, at *6 (N.D.Tex. Nov. 22, 2011) (Fitzwater, C.J.) (citing DFW Metro Line Servs. v. Sw. Bell Tel. Co., 901 F.2d 1267, 1269 (6th Cir. 1990) (per curiam)) (affirming denial of preliminary injunctive relief on ground that movant had failed to show irreparable injury, and pretermitting discussion of other three factors).
⅜ ⅜ ⅜
Accordingly, Three Expo’s motion for a preliminary injunction is denied.
SO ORDERED.
. Three Expo initially sued several defendants, including the City of Dallas. In its amended complaint, Three Expo names only the City as a defendant.
. Pursuant to Fed, R. Civ. P. 52(a), the court sets out its findings of fact and conclusions of law in this memorandum opinion and order. Three Expo’s preliminary injunction motion is before the court under the procedure permitted by Rule 43(c) and is being decided on the papers, with oral argument, but without an evidentiary hearing. See, e.g., John Crane Prod. Solutions, Inc., v. R2R and D, LLC, 861 F.Supp.2d 792, 793 n. 2 (N.D.Tex. 2012) (Fitz-water, C J.) (following similar procedure).
. The City later determined that the entity "Exotica Texas, LLC” does not exist.
. The City objects on various grounds to Three Expo’s evidence in support of these contentions. Because the court is not relying on this evidence to decide Three Expo’s motion, the court overrules the objections without prejudice as moot.
. After briefing was complete on its motion for a preliminary injunction, Three Expo amended its complaint to add a claim that Chapter 41A, if applied to Three Expo, is unconstitutional under the First and Fourteenth Amendments.
. Three Expo requests in part that the court order the City of Dallas to enter into a contract with Three" Expo for a lease at the Convention Center for a three-day adult entertainment expo on May 20-22, 2016, in accordance with their prior agreements and course of dealing. This aspect of the requested relief is mandatory rather than prohibitory.
. The City maintains that, under the doctrine of "constitutional avoidance,” the court should rule that the City was justified in deciding not to sign a second contract for Exxx-otica, and should "follow the well-established rule of constitutional avoidance and decline to decide the constitutional issue raised by Plaintiff.” D. Br. 19. In support of this argument, the City relies on Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988), in which the Supreme Court stated that "[a] fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Id. at 445-46, 108 S.Ct. 1319. The court disagrees with the City's assertion that the general principle set forth in Lyng applies here. Three Expo is seeking a preliminary injunction to remedy what it maintains is a deprivation of its First Amendment right to free speech. The constitutional question is not a collateral one that can be avoided in the exercise of judicial restraint.
. The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. See, e.g., Colson v. Grohman, 174 F.3d 498, 506 (5th Cir. 1999) (citing De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278 (1937)).
. Citations to the hearing transcript are to a preliminary copy that is subject to revision when filed of record by the court reporter.
. "The preferred plural is forums, not fora." Bryan A. Garner, A Dictionary of Modern Legal Usage 373 (2d ed. 1995) (emphasis in original).
. Although in Walker the Supreme Court recognized these four distinct categories of forums, the Supreme Court and the Fifth Circuit have at other times used different or overlapping terminology to describe the same sorts of forums. See, e.g., Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677-78, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) (listing the types of forums as traditional public forum, designated public forum, nonpublic forum—what Walker and other cases call a "limited public forum”—and non-forum); Cornelius, 473 U.S. at 802, 105 S.Ct. 3439 (identifying three types of forums: "the traditional public forum, the public forum created by government designation, and the nonpublic forum”); Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 757-58 (5th Cir. 2010) (listing three categories of forum: "(1) traditional and designated public forums; (2) limited public forums; and (3) nonpublic forums”); see also Am. Freedom Defense Initiative v. King Cnty., Wash., - U.S. -, 136 S.Ct. 1022, 1022, 194 L.Ed.2d 376 (2016) (Thomas, J„ dissenting from the denial of certiorari) (implying that a nonpublic forum is merely another name for a limited public forum). The court will use the terminology employed by the Court in Walker.
. Amici point out that the City’s annual budget lists the Convention Center under the "Economic Vibrancy” focus area rather than the “Culture, Arts, Recreation and Education" focus area; describes the Convention Center as “one of the region’s most powerful economic engines [that] effectively generates dollars that reduce the burden to local taxpayers [and] create[s] region-wide jobs and economic benefits”; and states that the City department that oversees the Convention Center
. The dedication booklet expressly stated: "It will be (the board’s) endeavor to make (the auditorium) the community center of Chattanooga; where civic, educational[,] religious, patriotic and charitable organizations and associations may have a common meeting place to discuss and further the upbuilding and general welfare of the city and surrounding territory... .its purpose will be devoted for cultural advancement, and for clean, healthful, entertainment which will make for the upbuilding of a better citizenship.” Se. Promotions, 420 U.S. at 549 n. 4, 95 S.Ct. 1239.
. In Arkansas Educational Television Commission the Court explained the distinction between "general access,” which indicates that the property is a designated public forum, and "selective access,” which indicates that the property is a nonpublic forum: ,
On one hand, the government creates a désignated public forum when it makes its property generally available to a certain class of speakers[.] On the other hand, the government does not create a designated public forum when it does no more than reserve eligibility for access to the forum to a particular class of speakers, whose members must then, as individuals, "obtain permission.”
Ark. Educ. Television Comm’n, 523 U.S. at 679, 118 S.Ct. 1633 (quoting Cornelius, 473 U.S. at 804, 105 S.Ct. 3439).
. Nothing in the court’s decision today will preclude Three Expo from attempting to prove at a later procedural stage of the case that the Convention Center is a quintessential public forum or a designated public forum. See supra § III (noting that none of the court’s conclusions at the preliminary injunction stage carries over to the determination of the merits of Three Expo's claims).
. The standard under a First Amendment forum analysis for a limited public forum and a nonpublic forum is the same. Chiu, 260 F.3d at 347 ("As with limited public forums, ‘[t]he government can restrict access to a nonpublic forum "as long as the restrictions are reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker’s view.”’ ” (alterations in original) (quoting Ark. Educ. Television Comm’n, 523 U.S. at 677-78, 118 S.Ct. 1633)); see also McMahon v. City of Panama City Beach, 2016 WL 1449680, at *7 n. 8 (N.D.Fla. Apr. 12, 2016) (noting that there does not appear to be a consensus among courts as to whether there is a distinction between a "limited public forum” and a "nonpublic forum,” but that ”[r]egardless of nomenclature, government regulation of speech on government property that is not a traditional or designated public forum must be reasonable and viewpoint neutral.” (citations omitted)).
. Although the City primarily presents its arguments in support of its assertion that Three Expo has "unclean hands,” its rationale for refusing to enter into a second contract with Three Expo is more appropriately addressed in the context of whether the City’s actions were “reasonable.”
. Chapter 41A defines "Sexually Oriented Business” to include, inter alia, a "nude model studio,” an "adult cabaret,” and a "commercial enterprise the primary business of which is the offering of a service or the selling, renting, or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer.” Dallas, Tex., City Code § 41A-2(31). Regardless of whether Chapter 41 A, as a whole, applies to Three Expo’s temporary use of the Convention Center, the City has provided evidence that the conduct that occurred at Exxx-otica in 2015 clearly falls within the definition of "sexually oriented business,” as that term is defined by Chapter 41A.
. For example, Chapter 41A defines “nude model studio” as "any place”’ where "a person who appears in a state of nudity or displays 'specified anatomical areas’ is provided to be observed by paying patrons. Id. § 41A-2(23).” "Specified anatomical areas” include, "when less than completely and opaquely covered.. .any buttock[ or] any portion of the female breast or breasts that is situated below a point immediately above the top of the areola[J” Id. § 41A-2(33). Chapter 41A’s "no touch” rule states, in pertinent part:
(e) An employee of a nude model studio, while exposing any specified anatomical areas, commits an offense if the employee touches a customer or the clothing of a customer.
(0 A customer at a nude model studio commits an offense if the customer touches an employee who is exposing any specified anatomical areas or touches the clothing of the employee.
Id, § 41A-16. The City has produced video evidence of Exxxotica employees with less than completely and opaquely covered buttocks and breasts touching and being touched by customers of Exxxotica. This conduct would clearly violate Chapter 41A-16.
. ' The City contends and produces evidence that Three Expo
promised the City that Exxxotica would not permit exhibitors or patrons to engage in “sexual activities,” defined to include fondling or other erotic touching of buttocks or female breasts. Plaintiff promised the City that Exxxotica would not permit exhibitors or patrons to display female breasts below a point immediately above the top of the ar-eolas. Plaintiff promised the City that no adult or obscene materials would be visible from any public right of way. Plaintiff promised that he would monitor compliance with the terms and conditions of the agreement and supervise the show and exhibitor conduct at all times. He did not live up to any of these promises_Instead, exhibitors and patrons engaged in “sexual activities” and appeared in a state of nudity that violated Plaintiff's agreement with the City, adult material was visible from the-Convention Center lobby, and Plaintiff did not monitor compliance with the terms and conditions of the agreement and supervise the show and exhibitor conduct at all times.
D. Br. 26-27 (citations omitted).
. Chapter 41A was enacted to
regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the city; to establish reasonable and uniform regulations to prevent the continued concentration of sexually oriented businesses within the city; and to minimize the deleterious secondary effects of sexually oriented businesses both inside such businesses and outside in the surrounding communities.
Dallas, Tex., City Code § 41A-1.
, In assessing viewpoint neutrality, the court is required to look beyond the government’s reasonable justifications for the restriction on speech. See Cornelius, 473 U.S. at 811-12, 105 S.Ct. 3439 (noting that “[t]he existence of reasonable grounds for limiting access to a nonpublic forum... will not save a regulation that is in reality a facade for viewpoint-based discrimination," and remanding case where the plaintiffs had “offered some evidence to cast doubt on” the genuineness of the government’s "reasonable grounds for excluding
. Three Expo appears to argue that the Resolution is an unconstitutional prior restraint
Reference
- Full Case Name
- THREE EXPO EVENTS, L.L.C. v. CITY OF DALLAS, TEXAS
- Cited By
- 9 cases
- Status
- Published