Staunch 1st Amendment Advocate Steven Swander Dies

FORT WORTH, Tex.—Steven Swander, a tireless defender of free speech rights for adult movies, strip clubs and adult novelties, died of mesothelioma, a particularly virulent form of cancer, at a local hospital on November 24 at the age of 61.

"He saw representing sexually oriented businesses as an intellectual challenge," former law partner Dick Price told Elizabeth Campbell of the Ft. Worth Star-Telegram.

Swander was born in Burbank, California in 1951, though he grew up south of that city, in Manhattan Beach, and obtained his undergraduate degree from the University of Southern California. He obtained his Juris Doctor degree from Baylor University in Waco, Texas, where he later joined the faculty as head of the university's debate department.

"What got him out to Texas, he told me once was, he was into debate in college, and I think he said he got a scholarship at Baylor or they got him out to Baylor to be a debate coach or something, but that's how he became a Texan," recalled attorney Reed Lee. "But I think he was always a Southern California kid at heart."

He joined the Texas State Bar Association in 1976, began the private practice of law in Ft. Worth, and over the succeeding years was admitted to practice before the U.S. Supreme Court, the Fifth Circuit U.S. Court of Appeals and the Northern District of Texas. in 2011, he was elected president of the First Amendment Lawyers Association (FALA), of which he had been a member for many years, and when he died, he was the organization's National Chairperson, an honorary title.

"All I can tell you is, there are some nice people in the FALA, but he was the nicest, most upright attorney in the FALA that I ever had the pleasure to meet," observed Bradley Shafer, a prominent attorney renown for representing adult cabarets and nightclubs. "There's a lot of cutthroat stuff that some FALA attorneys do—not all, but you know, he was the old type of attorney: a gentleman's gentleman. All I can say is, you just wonder why bad stuff happens to good people; he's a perfect example of that."

The man that Diane Gracia, his life partner of eight years, described as "a gentle and kind person" seemed to have been well-liked by everyone who knew him.

"Steve was one of the most gentle souls, especially notable in a litigator," recalled Jeffrey Douglas, criminal defense attorney and Board Chair of Free Speech Coalition. "He was self-effacing, never arrogant. His clients always had an advocate who would do for them what he never did for himself: fight  zealously, even aggressively."

"When I think of Steve Swander, I think of a perfect Southern gentlemen who was soft-spoken and knew his stuff," added long-time associate H. Louis Sirkin, who worked with Swander on the Reliable Consultants v. Earle case, which legalized sex toys in the Fifth Circuit. "He reminded me of Will Rogers, and I’m certain that Steve never met anyone he didn’t like. If he didn’t like you, one would never know."

Gracia referred to her 6-foot-4 partner as a "gentle giant."

One of the cases that occupied Swander's time over the past few years was the Texas "strip club entrance fee" case, in which Swander not only provided support for the attorneys attacking the fee, but also testified against the original bill before the Texas legislature.

"On the [Texas strip club] tax issue," Reed Lee said, "I remember when we were sitting around and dividing up assignments for amicus brief work for the First Amendment Lawyers Association, Steve was very active on the tax issue. He helped Al Lichtenstein and I with the Alvarez amicus brief. He reviewed it and offered his thoughts and did some of the editing."

Swander had also personally represented several Texas adult nightclubs and strip clubs, including Flashdancer, Christal's Romantic Boutique, Peep-N-Tom's and Hooters, Inc.

The Hooters case—Hooters, Inc. v. City of Texarkana—was particularly interesting, in that it involved the plaintiff's attempt to open an adult nightclub, "The Executive Room," but on opening night, it found its business license revoked because the club was within 1,000 feet of a church. Trouble was, this "church" was located inside the Bowie County Correctional Center, a local prison. According to an obituary posted on the First Amendment Center blog, Swander successfully argued that the prison chapel didn't qualify as a "church" under the city's zoning law, since families were not allowed to attend services with the inmates—and Texarkana city officials weren't even aware that the chapel existed!

"His love for representing adult businesses arose from a passion for free expression—not merely as a constitutional precept, but as a requirement for civilization to survive," Douglas stated. "He was a good lawyer and good man. We have lost a great deal in his death."

Swander's dedication to the First Amendment was all the more admirable because he spent the last year of his life with nearly debilitating back pain.

"More than a year ago, he was working in an attic and he fell through the ceiling and hurt his back," Lee explained. "So he'd been in pain a lot, and the back injury was agonizing enough—I mean, he bought himself a device where he'd hang upside down by his legs at home to try to deal with it, and he'd been treated for it and everything, so the back was serious enough, and the first thing when we saw him or got on the phone with him, we'd always ask, 'How's the back going?' But then, about two or three weeks ago, some of us heard that he had mesothelioma."

Mesothelioma is most often caused by inhaled asbestos fibers caught in the lungs, and may take as long as 20 to 50 years to develop into its malignant cancerous form. There is no cure for the condition, and though it's unclear when or how Swander was exposed, Shafer opined that Swander wouldn't necessarily have had to be around asbestos to contract the illness.

"I used to be an asbestos defense attorney," Shafer noted, "and just breathing the air outside, because of the old type of brake linings can give you mesothelioma, and unlike asbestosis that requires inhaling asbestos over time, the general medical research is that one fiber can cause mesothelioma. Some people are susceptible to it and some aren't, but once you get it, it's all over; it's just a question of time, as far as I know. I think it's still 100 percent fatal."

Besides Diane Gracia, Swander is survived by three daughters: Jillian Swander of Fort Worth, Devyn Swander of Austin and Rowan Swander of Austin.

"Steve was a brilliant lawyer who cared very much for his clients and loved to protect the First Amendment," Sirkin summarized. "My deepest feeling is the sorrow I feel for myself and everyone who was blessed to know him. We all lost a very good friend and this country lost a true freedom fighter."

Pictured: Steven Swander with the sign of his long-time client Flashdancer.