U.S. 5th Circuit holds promoter of sex convention had standing to sue after City passed ordinance banning convention

Three Expo Events, LLC v City of Dallas, 17-10632 (5th Cir. October 24, 2018).

This is a First Amendment case involving a sex convention where the U.S. 5th  Circuit reversed an order granting the City’s motion to dismiss.

Three Expo Events, L.L.C. (Three Expo), produces adult love- and sex-themed conventions in major cities of the nation. It held just such a convention in 2015 at the Dallas Convention Center and planned to return in 2016. The 2015 convention, which hosted near nude and sexual activities, drew protesters, but the City originally took the position it could not constitutionally preclude the event in 2016. In preparation for the convention and consistent with its business model, Three Expo formed a local entity (Exotica Dallas) to enter into and hold the lease for the convention. However, the City then passed a resolution banning the event. Three Expo filed suit against the City in federal court and sought a preliminary injunction to prevent the City from enforcing the resolution. The district court denied Three Expo’s motion for a preliminary injunction, and no event took place in Dallas in 2016. However, Three Expo proceeded with the suit alleging violations of the First Amendment, the Equal Protection Clause, and the Bill of Attainder Clause. The City filed a motion to dismiss for lack of jurisdiction, which the trial court granted.  Three Expo appealed.

The panel first analyzed the record and determined the trial court make “clear mistakes of fact” in its findings. While the City tried to argue the interplay between Three Expos and Exotic Dallas prevented a finding the City targeted Three Expos, the “overwhelming” evidence in the record indicated the City “firmly intended to make certain that the Exxxotica convention would not be staged by anyone in the Convention Center in 2016. …Three Expo, the undisputed promoter and proposed presenter of Exxxotica 2016, was banned from presenting Exxxotica 2016” due to the totality of actions by the City. The panel held Three Expo established the three elements required for standing on each of its claims and should be permitted to proceed with its suit. The Court held the trial court committed a “manifest failure to apply the well-established principles of law governing Article III standing to the entire evidence of record in this case.” The dismissal was reversed and the case remanded for trial.

If you would like to read this opinion click here. Panel consists of Justices Jolly, Dennis and Elrod. Opinion by Justice Dennis. The attorney for Three Expos is listed as J. Michael Murray.  The attorney listed for the  City is James Bickford Pinson