The Marble Palace Blog: Lawyer who won SCOTUS free speech case in 1983 on behalf of his wife dies aged 70


Thank you for reading The Marble Palace blog, which I hope will inform and surprise you about the Supreme Court of the United States. My name is Tony Mauro. I’ve covered the Supreme Court since 1979 and for ALM since 2000. I semi-retired in 2019, but I’m still fascinated by the high court. I will be happy to receive advice or suggestions for topics to write. You can reach me at [email protected].

Sebastian Graber has only argued one case before the United States Supreme Court in his career. But it was a big deal, and an unusual one. He argued on behalf of his wife, Mary Grace, who was a respondent in the First Amendment case in court. And they won.

The 1983 decision was United States vs. Grace, and it was close to my house, literally. At issue was a federal law banning banners, flags and the like in the Supreme Court building and on its grounds, including its surrounding sidewalks. The court unanimously ruled that expressive driving is permitted on public sidewalks around the courthouse, deemed protected by the First Amendment as a public forum. Judge Thurgood Marshall reportedly went further, allowing expressive driving on court premises, not just sidewalks.

Graber died Aug. 4 at age 70 after a long illness, according to his wife Grace. “I am deeply grateful for my life with this interesting, dedicated, intelligent and gentle man,” she said in an interview.

Before and after the Supreme Court case, Graber often had a solo practice in Virginia, representing a range of activists, including the Berrigan brothers, Elizabeth McAlister and Daniel Ellsberg, Grace said. She was also an activist and she met Graber when he stood up for her for free when she was arrested during a protest at the Pentagon in 1978. “It was kind of romantic,” she said. For years, Grace has been a “legal watcher,” helping during protests to interact with police and protesters to “try to keep them a little calmer,” she said.

The Supreme Court case developed when a friend named Thaddeus Zywicki went to Graber to complain that a Supreme Court police officer had threatened to arrest him on the pavement outside the high court for distributing leaflets about unfit judges. Zywicki left before being arrested, but returned.

Grace decided to get involved by posting the words of the First Amendment on a sign she would bring to court. She expected to be arrested. But Graber urged her to stay on the public sidewalk with the sign, believing her chances of being arrested were lower than if she stepped onto the marble plaza.

Graber was right. In the 1983 oral argument, he faced then-fearsome Solicitor General Rex Lee, who wore his morning coat, while the bearded Graber wore his “old scruffy ponytail,” Grace recalled. Graber answered tough questions, but eventually persuaded the judges to embrace the “narrow ground” as Judge Byron White said in his opinion, that “the law was invalid under the First Amendment as applied to conduct occurring on public sidewalks which are historically and traditionally public forums of expressive activity.

Graber did not mention during the argument that his wife was the respondent, but Grace said, “Somehow the judges were already aware of that, I believe.”

“I was really tickled when they came down with a unanimous verdict,” Grace said. “It certainly wouldn’t happen these days, but it was fascinating.” The decision has since been made. It has been widely cited in disputes on public forums. In Hodge vs Talkina case from 2015, United States vs. Grace was cited 38 times acknowledging that protesters could be allowed on sidewalks, but not in Marble Square.

Mark Goldstone, a Washington attorney who often represents protesters in similar situations, said in a statement, “Mary Grace is a living embodiment of the First Amendment. She’s been a free speech legend since taking her brave stand in 1980 when she took to the public sidewalk in front of the US Supreme Court and posted a sign with the words of the first amendment on it. Her husband, Sebastian Graber, was a young lawyer who courageously and skillfully represented her all the way to the Supreme Court. Together, they demonstrated what freedom of expression is. The loss of Sebastian is a great loss and a time to redouble our efforts to defend free speech, the Constitution and our democratic way of life.


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