June 24, 2009 7:09 PM

Davis Wright Works Its First Amendment Magic

Posted by Zach Lowe

When Elena Luisa Garella got a call from another lawyer at Davis, Wright & Tremaine offering to help her seek a rehearing of a case she had just lost on behalf of a Seattle street performer, she was cautious.

After all, Garella had represented the performer, a magician, from the start of an action challenging restrictions imposed by the city of Seattle on street performers.

"I was a little protective," says Garella, who filed the suit in 2003. "It has been my case, and I've done a lot of work. If there's going to be a victory, naturally, I'd like it to be in my name."

But Garella realized the case was in need of a bit of magic. "This goes far beyond me and my client, and Davis Wright has tremendous depth of experience in these cases," she says.

With that in mind, Garella worked with two Davis Wright lawyers--partner Robert Corn-Revere and associate David Shapiro--to draft the petition that persuaded the U.S. Court of Appeals for the Ninth Circuit to hear the case en banc. (The lawyers handled the matter on a pro bono basis.)

That raised another question: Who would argue the case? The lawyers consulted with their client, Michael Berger (AKA "Magic Mike"), and everyone came to a surprising conclusion: Shapiro.

Shapiro had never presented an oral argument in his life--much less to the full Ninth Circuit. But he had worked with Corn-Revere on First Amendment cases before, including defending CBS against the Federal Communications Commission in the infamous Janet Jackson "wardrobe malfunction" case and a more recent case in which the U.S. Supreme Court upheld the FCC's right to fine broadcast companies that accidentally air "fleeting expletives."

Garella was confident the case would be won in the briefings, not oral argument--though she is quick to add that the the 8-3 decision reached Wednesday to strike down the regulations shows how well Shapiro did. 

The rules required all street performers at the Seattle Center to obtain a license to perform, wear a badge displaying their license, avoid "speech activities" within 30 feet of patrons standing in line or eating, and stay within 16 designated locations.

Berger, who had sued over similar regulations in the 1990s, hired Garella and challenged the laws immediately. They won the case in federal district court, but the Ninth Circuit overturned that ruling in a 2-1 decision last year.

Garella was stunned. "It's amazing to me that any government would consider it within their rights to do this." (City lawyers have argued the case on behalf of the park, court records show.)

Corn-Revere learned about the adverse ruling and called Garella, asking to help. When the Ninth Circuit agreed to rehear the case, Corn-Revere called one of his old professors, Nell Newton, then dean of the University of California Hastings College of Law in San Francisco. Newton--who recently resigned as dean--agreed to recruit a team of professors to organize a mock trial to prepare Shapiro for appellate arguments, Corn-Revere says. 

The preparation paid off, despite a strong dissent from the court's chief judge, Alex Kozinski, who argued that the regulations struck a balance between the concerns of park-goers and performers. The Seattle Center has yet to determine its next step, according to the Seattle Post-Intelligencer.

Shapiro already has taken his next step. He left Davis Wright for the American Civil Liberties Union.

"He argued the case, he won, and then he left us," Corn-Revere says with a laugh. (Shapiro did not immediately return a message seeking comment.)

And what of Berger? He moved to Costa Rica for personal reasons, but now he may return.

"I talked to him today," Garella says. "He's happy about the decision."

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