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November 18, 2016

Legalese: Arthur Schwartz, Portrait of a Free Speech Defender

As is journalistic practice, this column is usually written in the third person. This one is an exception because I have such a direct, personal interest in the subject. Many of you have never heard of Arthur Schwartz. Arthur has been retired for a few years. He is 89 years old, enjoying retirement. Sadly, he lost his charming wife a few years ago. Arthur Schwartz is much of the reason that you are able to do what you are doing. To the adult industry, Art was somewhere in the realm of Ty Cobb or Babe Ruth. The Rocky Mountain News accurately quoted him in 1975: “You have to love a good fight and believe in what you are doing.” Art was a fighter, all right. He was one of the founding members and one of the first officers of the First Amendment Lawyers Association; and that organization has done incredible work to keep the First Amendment intact, to the extent that has been possible. My friend Lou Sirkin, a First Amendment Attorney supreme from Cincinnati—a very tough place to play that game—summed it up pretty well: “Art Schwartz has meant so much to me as a mentor and friend. He practiced law and represented the adult industry always with class, skill and charmed not only juries but the judges he appeared before. Every time I worked with Art, I felt honored and was overwhelmed by his work ethic and his sense of humor. “I cannot say enough about the importance his contribution has meant to the preservation of the adult industry that has resulted from his skill battling the government’s attempt to silence sexual expression.” There is a long list of other First Amendment attorneys who would express comparable sentiments, including me. I first met Arthur in my other life—when I was general counsel to the district attorney in Houston. You see, Texas had enacted a bunch of supposed upgrades to its obscenity laws; some of them stood to be pretty damaging to the industry. So, after being an assistant DA for six years and having avoided prosecuting obscenity cases, I was thrown into one. My job at that point—defending lawsuits against the DA’s office or any of its people—meant that these three lawsuits were in my department. Reluctantly, I appeared in federal court to defend the DA. An army of lawyers appeared; there were dozens of porn-company plaintiffs and dozens of governmental defendants. The only thing I could think of was the colossal waste of resources this all was. All of the attorneys announced their appearances. Marian Rosen, a high-level Houston criminal defense attorney; John Weston, an impressive Beverly Hills attorney with a most impressive track record of representing the porn industry; and Arthur Schwartz, this avuncular fellow from Denver who hardly seemed like the pit bulls that were Mr. Weston and Ms. Rosen. Also present was a gaggle of government attorneys. Unfortunately, few of them had a clue; most weren’t even licensed in federal court. So, the worst thing happened: the newly minted judge who presided over the case, Hon. Norman Black, had been an adjunct professor at the University of Houston Law School, where I had been one of his students. He appointed me lead counsel. I was trying to hide in the corner! Little could I dream that a decade later I would be in Beverly Hills, working with Arthur Schwartz and John Weston on the FW/PBS Supreme Court case—the one that dismantled most of the adult licensing ordinances in the country. Arthur Schwartz could dazzle a judge as well as it could be done. In a jury trial, he could climb right into the jury box. I never heard of anyone who knew Arthur and who thought he was anything other than a wonderful person; a legal scholar; and a devoted advocate to his clients. A piece in the Denver Post published a year or two before I first met Arthur described him as “a well-dressed, successful attorney who has retained a boyish enthusiasm for his work.” It sure looked like it to me. One local biographer included a tag line under Art’s picture: “Arthur Schwartz: Giving the Devil his Due.” I like that. Someone once firebombed his office. I don’t like that; but it tells you something about his relentless zeal. Other lawyers who know Art had more to say. Michigan attorney Brad Shafer, who keeps the Déjà Vu chain, among others, in business, said, “It would be impossible to summarize in a few paragraphs everything I learned from Art during the 15 years I had the privilege of practicing law with him. His instincts in a courtroom and his cross-examination skills were nothing short of mesmerizing to anyone who was lucky enough to have seen him in trial. But above all, his love of the First Amendment and his love of the law were so contagious that it enabled him to make every courtroom he entered feel like it was his home, and everyone else in that courtroom, whether friend or foe, to feel like a treasured guest. I think it’s fair to say that anyone who ever saw him in action knows exactly what I mean.” Michael Gross, a Denver attorney who began working for Art in 1984 and was Art’s super-technical guy, summed it up very well: “Art was a brilliant trial lawyer who always had fun in court and conveyed that to the jury. Art was a master at showing to the jury the ridiculous nature of the government criminalizing speech involving our universal human sexuality. While Art was a happy warrior in the courtroom capable of cracking up even the most hard-boiled prosecutors, he was a relentless ferocious fighter for free speech. This article originally ran in AVN magazine.

 
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