On June 8th, the ACLU of Southern California presented Davis Wright Tremaine with its 2012 Artistic Freedom Award. Four DWT attorneys—Bob Corn-Revere along with associates Anna Buono, Rory Eastburg, and Carla Veltman—were honored at the ACLU’s 18th annual law luncheon.
They were recognized for their pro bono work on a remarkable case in which the city of Los Angeles attempted to enjoin a collection of alleged graffiti artists, and former graffiti artists, from exercising some basic rights.
In a complaint originally filed in June 2010, the city attorney asked the court to impose a curfew on 10 named defendants and prohibit them from associating, possessing any “graffiti tool,” and being on certain public property (among other things).
The complaint purported to target one of L.A.’s most visible graffiti crews, known as MTA. But it sought to impose special restraints on certain of the defendants who had left such activity behind to pursue careers as legitimate artists.
The complaint posed a novel theory under California’s Unfair Competition Law, contending that defendants had used their tagging as "marketing" for their legitimate art, and it sought to confiscate profits derived from future sales of that art.
The ACLU took on the defense of one of the named defendants, Cris Gheorghiu, who also goes by the name of "Smear" and specializes in modern and graffiti-style work.
The ACLU attempted to dismiss the claims against Gheorghiu, but its motion was rejected by the Superior Court. Davis Wright then got involved in June 2011.
“The case presented a very serious First Amendment challenge, and one that needed to be answered,” says Corn-Revere.
One of the surprising elements of the suit was the city’s contention that the defendants’ alleged behavior was not just a "public nuisance" but unfair to other artists. The city accused the defendants of violating the state’s Business and Professions code, saying "the means by which Defendants utilize marketing tools, capitalize on their fame, and profit from their unlawful acts, are unfair and create a distinct competitive advantage over artists who comply with State law and local ordinances."
Los Angeles took "a novel and very punitive approach" with this civil suit, says Corn-Revere.
Gheorghiu had already performed community service after pleading guilty to some graffiti-related misdemeanors in the distant past.
"Is there a First Amendment right to vandalize public property? No," says Corn-Revere. “But the government cannot penalize an artist or enjoin his future activities because of past mistakes, particularly where he already paid his debt to society."
Last year, DWT filed a writ of mandate with the Court of Appeals, seeking rehearing of the arguments rejected by the Superior Court. But that too was rejected. That’s when Carla Veltman took the lead in preparing for trial.
"It was a really extreme case of government overreaching," says Veltman. "They were trying to restrict people’s freedom of association, movement, and speech based on allegations going back ten years in some cases."
DWT recently succeeded in reaching a settlement in the case, with the city agreeing to dismiss its complaint against Gheorghiu in its entirety. Several other defendants targeted by the city have also reached settlements.
Says Gheorghiu in an email: "Carla has been nothing but good to me. She put a lot of my fears at ease by her obvious professionalism and commitment. The case is so larger than life and confusing to me that I would have been swallowed up whole by its enormity if left to try and navigate it on my own. I will forever be grateful to DWT."