Never a Dull Moment

If you think constitutional law is dry, you haven't met Stephen A. Smith

Published in 2009 Washington Super Lawyers Magazine — June 2009

Religion, sex and politics may be taboo topics for polite conversation, but for constitutional lawyer Stephen A. Smith, they're just part of the job.

His body of work is not what most people might associate with the term "constitutional lawyer." His career has never been about the dry parsing of the nation's two-and-a-half-century-old founding documents. Smith has dealt with leaders of a religious cult, pornography peddlers, a serial killer, the word of Moses and the media. Smith, who has been at K&L Gates (and its predecessor) for his entire career, is sought after by governmental entities and corporations large and small when they are challenged on First Amendment issues.

It is a practice that he arrived at, he says, through serendipity: "I was interested in journalism in high school, and even did some summer journalism internships at The Seattle Times." Smith, who grew up in Bellevue and is an avid athlete, toyed with the idea of becoming a sports journalist. But, spurred on by a couple of political science classes at the University of Washington, he decided to go to law school. Like many early '70s college students, Smith was affected by the uproar in the country. He recalls going to Washington, D.C., with a political science group from school in 1970. "There was all sorts of turmoil. I looked around and thought, 'Things aren't right—what can I do about it?'" He decided a career of writing about sports wasn't what he wanted, and after graduating summa cum laude from the UW in 1972, he went to law school at Columbia.

It didn't take long for Smith to figure out that he was a fish out of water. "I clearly didn't fit in in New York City—most of my friends at Columbia were from the West Coast." After graduation, he took a clerkship in San Diego, where he met his wife, Diane, and returned to Seattle and a job at Preston, Thorgrimson, Ellis, Holman & Fletcher. His initial position combined both his interests. "I came to the old Preston firm because they had sports clients and journalism clients," he says. He did litigation work for the Seahawks, representing them against the Seattle Mariners in a suit over use of the Kingdome. He also represented the Seahawks when five former players sued the team, claiming they had been forced to play while injured. When Ken Behring bought the team in 1989, though, the team's legal work went elsewhere. Smith then took on—and won—two important public-disclosure cases representing the Seattle Post-Intelligencer, which was trying to get the state to release documents detailing investments made by the Washington State Investment Board. "That's where I really began to develop an expertise on First Amendment law," he says.

A few years later, he found himself representing Bellevue in a 1995 suit brought by the owners of a strip club named Papagayo's. The club's lawyers seemed to think no more space was needed between topless dancers and their patrons than would be necessary to, say, slip in a copy of the First Amendment. They believed the right to freedom of expression would outweigh Bellevue's 4-foot distance ordinance.

Smith, working with Bellevue's then-assistant city attorney Lori Riordan, says, "We wanted to make the argument that, although the city could not regulate the content of the dances, it was within its rights to impose a distance between dancers and patrons." After a courtroom scene that at times resembled an anthropology class, at others an exotic dance club, King County Superior Court Judge Carol Schapira agreed with Smith and the city.

Doing well in a trial brings on more clients with the same interests. After Bellevue's topless-dancing ordinance was upheld, other municipalities began to beat a path to his door. Smith worked with Spokane, Federal Way and other towns that wanted controls on exotic dancing. "There have been 10 years of legal conflict over these laws," Smith says. "Because the income stream is so large [in the adult-entertainment industry], if you affect it, you're probably going to be met with a lawsuit."

Smith's tactic was not to challenge the right to dance, but instead to assert that municipalities had the right to regulate the "time, place and manner" of the dances. Smith then had to prove that a dance performed 4 feet from the patron was no less "erotic" than a dance performed in a patron's lap. It was an approach that was used in several court cases as a number of municipalities in the state tried to set limits on lap dancing.

An observer might have mistaken the courtroom for a bawdy house as raunchy films were shown so the judge could attempt an objective assessment of eroticism. "The testimony included some pretty graphic films of erotic dancers all over a guy," Smith recalls.

At issue was just what constituted an erotic dance, and whether proximity mattered. "Due to the well-financed nature of the industry, they [the entertainment industry] would hire dance experts, communications professors and anthropologists to testify," Smith recalls. "I deposed one social anthropologist who had studied erotic dancing. Her opinion was that preventing the dancer from coming closer than 4 feet would destroy the 'expressive nature of the dance.'" That was not what Smith wanted the judge to hear, and he had to play defense.

"Steve is one of the best lawyers I've gone up against," says Gilbert Levy, who practices criminal defense and freedom-of-speech law in Seattle. Levy has been on the other side of the aisle from Smith on several adult-entertainment cases. "In the Bellevue case, on very short notice, he came up with an expert witness from Cornish [College of the Arts] who said that 4 feet was the same as face-to-face in terms of expression." 

And while the aesthetics of eroticism might have been debatable, the decision was simple as far as Smith was concerned. "Free speech applies to strip-club dancers," he says. "But rubbing up against a client isn't free speech. It's lewd contact." Most judges agreed.

Levy has philosophical differences with that opinion, and with Smith's clients. "A lot of people have moral objections to sexually oriented entertainment," he says. "My personal belief is that people have a right to be left alone, as long as nothing bad happens." Regardless of that profound difference of opinion, there's a lot of mutual respect between Levy and Smith. "Steve writes well, understands the issues, and finds creative and interesting ways to present them. He's tough—he's a take-no-prisoners litigator. But I like him. He's a gentleman and a class act."

Smith's reputation as an astute media lawyer has brought some unusual cases to his doorstep. Two of them brought him in contact with Kenneth Bianchi, aka the Hillside Strangler. Bianchi and his cousin Angelo Buono Jr. were convicted of brutally murdering several women in the late 1970s.

In what must be one of the more bizarre examples of entrepreneurial creativity, Eclipse Enterprises, out of California, printed and distributed a line of trading cards portraying serial killers. Bianchi's likeness was included. He sued the company for $8.5 million while he was serving a life sentence in Walla Walla, saying his face, which he claimed was his trademark, was improperly used. Smith argued that, as a serial killer trying to flee the police, Bianchi wasn't trying to market his likeness; therefore his face was not his trademark. Smith and Eclipse won the case. Smith also represented the Hearst Corp., owner of the P-I, when Bianchi claimed a book published by Hearst contained inaccuracies. "Our defense was that most of the statements were true or essentially true," Smith says, "and that his reputation was so low that it couldn't be damaged further." The judge awarded the case to Hearst.

Smith also found himself dealing in one case with the embodiment of a 30,000-year-old mystic, and, in another, the words of Moses. Smith's client, the American Association of Retired Persons (AARP), was sued by JZ Knight and Ramtha's School of Enlightenment after the AARP published an article on cults that included an interview with a woman who had spent a lot of money on Knight's organization. "Their claim was that the Ramtha School was depicted as a cult," Smith says. "I took a deposition of Knight—she is a very successful businesswoman." Knight claims that the spirit Ramtha communicates through her, and Smith says he didn't want to miss the opportunity to chat with the 300-century-old entity. He petitioned the judge to allow him to depose Ramtha. "The judge said that after I deposed Knight, I could try to convince him. But we didn't need it."

In the end, even Ramtha couldn't have saved Knight; the judge awarded a summary judgment to the AARP based on the conclusion that Knight was a public figure, and therefore malice would have to be shown.

The most intense issue Smith has ever dealt with was a case in Everett, involving a 20-year-old resident, the former Everett City Hall, and a 50-year-old granite monument etched with the 10 commandments that, according to Jewish and Christian tradition, were given by God to Moses. "The intensity of the emotion around the case was enormous," Smith says.

The monument was a gift to the city from the Fraternal Order of Elks and Cecil B. DeMille, the Hollywood producer responsible for the film The Ten Commandments.  It was one of 50 such monuments donated across the country in the middle of the last century, and sat in front of the building—now used as a police station. In 2003, Jesse Card of Everett filed a suit, with help from Americans United for Separation of Church and State, to have the monument removed. Card, an agnostic, told the P-I, "By placing it on public property, I think it gives the impression of supporting those particular beliefs. I don't believe it's the government's business to tell people what they should or shouldn't believe."

"The monuments were the idea of a Minnesota youth court judge," Smith says. "They sparked litigation all across the country." Smith's opponents were a number of lawyers from various states, and the Washington, D.C., law firm Covington & Burling, which took on the case pro bono. "The question was, would a reasonable observer think the city was endorsing religion, or a particular type of religion, by seeing this monument," Smith says. 

The case drew an extraordinary and vehement response. "I heard from people who were ardent atheists and from gung-ho religious advocates. I got offers of help and go-to-hell messages." During the course of the litigation, Smith took a trip to Everett to look at the monument. The front of the old city hall was dense with shrubbery. The granite stone was placed in a group of monuments: war memorials and testaments to public service. "If you looked from across the street, and moved 20 feet in either direction, it was hard to see," Smith says. "It was pretty apparent that the city wasn't doing anything to promote religion." 

Smith asked the court to visit the location, which Judge Robert Lasnick did. "Context is everything is these cases," Smith says. The case, according to him, turned on the lack of religious context in which the monument was displayed, and the fact that in the four decades prior, no one had objected. Lasnick agreed. His ruling was upheld in the 9th Circuit Court of Appeals in March of last year.

"Constitutional law is so rewarding because you have so many opportunities for cases that are not only unique, but really rewarding," he says. "The cases that I've had are really interesting. ... People are very passionate about the kinds of issues that are raised."

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