By: Brian J. Connolly, Associate, Otten Johnson Robinson Neff + Ragonetti, P.C.
This article is reprinted with permission. The original appeared on Rocky Mountain Sign Law, www.rockymountainsignlaw.com.
In October of this year, the Fifth Circuit Court of Appeals ruled that an operator of an adult entertainment convention called “Exxxotica” had standing to challenge the City of Dallas, Texas’s 2016 decision not to enter into a contract allowing the event. The appeals court’s decision reversed a prior ruling by the federal district court dismissing the case.
In 2015, Three Expo Events, L.L.C., held the Exxxotica event at the Dallas Convention Center. The event, which featured near-nudity and a variety of suggestive activities, caught the attention of community members who believed that the event was immoral. These protesters then asked Dallas’s mayor to prohibit a second annual convention, and the mayor obliged. In 2016, the city refused to renew the event’s contract, and the city council approved a resolution prohibiting the same. Three Expo Events then filed suit, alleging First Amendment violations.
Because the city council’s resolution only prohibited Three Expo Events, and not its subsidiary—which would have been the party to the convention center contract—the district court found that Three Expo Events lacked standing to challenge the city’s decision.
On appeal, the Fifth Circuit reversed, finding the district court’s view of the plaintiff’s standing too constrained. The court observed that the city council’s resolution was clearly intended to bar Exxxotica from returning to Dallas, that the city’s counterparty to the contract was closely related to Three Expo Events, and that the resolution therefore injured Three Expo Events sufficiently for it to establish standing. Judge Elrod, in dissent, urged that Three Expo Events had not established standing due to its failure to attempt to enter into a contract for Exxxotica in 2016.
The Fifth Circuit’s ruling means that the case can proceed. On remand, the district court will need to determine whether Dallas’s denial of the Exxxotica contract comported with First Amendment principles.
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