The Washington PostDemocracy Dies in Darkness

Sebastian Graber, won case for Supreme Court sidewalk protests, dies at 70

Attorney Sebastian Graber, seen at Grand Lake, Colo., on Aug. 4, 2022. (Family photo)

Around noon on March 17, 1980, a woman walked onto the sidewalk in front of the Supreme Court building. She carried a four-foot sign with the text of the First Amendment. Within minutes, a court police officer told her she had to leave or be arrested — saying it was prohibited to have any placards or political messages on that stretch of sidewalk.

So began a landmark legal challenge that would end up before the nine justices, argued by a 31-year-old lawyer with a coffee-colored beard and scruffy ponytail, Sebastian Graber, the husband of the sign-toting appellee, activist Mary T. Grace.

“I was really tickled when they came down with a unanimous verdict,” Grace said of the 1983 Supreme Court decision that declared the off-limits rule on the sidewalk a violation of constitutional protections for free speech.

Read the official transcript of the case

For Mr. Graber, it launched a career that would bring him into many venues in cases over civil and constitutional rights, including defending the Rev. Daniel Berrigan, an antiwar activist, as well as former Pentagon Papers leaker Daniel Ellsberg for various protests in and around Washington.

Mr. Graber, who died Aug. 4 at 70, never came before the Supreme Court again. His win in United States v. Grace stands as a rare example of the justices deciding a case that indirectly involved themselves. “A bit of sidewalk might seem trivial,” said Tony Mauro, a senior writer covering the Supreme Court for ALM, formerly American Lawyer Media. “But it was an important reaffirmation of the public forum and its role in American democracy.”

The heart of the case was the 1949 decision by Congress to ban “expressive conduct” on the Supreme Court grounds, seeking to preserve decorum and remove any perception of influence over the court’s rulings. Court police interpreted the ban as including the sidewalk.

In early 1980, a Roman Catholic missionary named Thaddeus Zywicki was told to leave the sidewalk as he tried to distribute copies of articles about judicial misconduct. Zywicki went directly to Mr. Graber’s law office in Alexandria, Va., where Grace was visiting her husband. On the spot, she decided to make her own challenge with the First Amendment placard.

The case reached the Supreme Court on Jan. 18, 1983. Mr. Graber, less than six years out of George Washington University law school, faced U.S. Solicitor General Rex E. Lee, who was deep into a career that would bring him before the Supreme Court 59 times.

Lee contended the ban was not a constitutional infringement and just a “matter of line drawing.” Protests “20 feet farther away” across the street were allowed, he told Chief Justice Warren Burger and the eight others on the bench. Mr. Graber argued that the public sidewalk in front of the court is just like any other and should be open to free expression.

Mr. Graber unpacked some novel arguments. A Washington Post newspaper box on the sidewalk, for example, should be in violation of the ban on “dissemination of printed matter,” he asserted. So would a Pepsi delivery truck, he added.

“You can’t be serious,” Justice William H. Rehnquist said.

Mr. Graber: “Your honor, I did not write this statute. But the literal terms of the statute prohibit any device designed or adapted to bring into notice any organization, movement or party.”

The court on April 20, 1983, ruled 9-0 that the limits on free speech on the Supreme Court grounds should not extend to the public sidewalk, “which historically and traditionally are public forums for expressive activity.”

Mr. Graber did not mention during the arguments that his wife was his client.

“Somehow the justices were already aware of it, I believe,” said Grace.

‘A moral point’

Sebastian Kenneth David Graber was born Aug. 1, 1952, in Cheyenne, Wyo., where his father was an optometrist. Mr. Graber was raised in his family’s Jewish faith but began a lifelong interest in Native American spirituality as he explored the hills and sagebrush on horseback.

He graduated in 1974 from Claremont Men’s College in Claremont, Calif. (now Claremont McKenna College) and began his law studies at George Washington University, receiving his law degree in 1977. He was on the law review, said Grace, but also edited an irreverent campus magazine called the Circle.

“He wore a T-shirt that said ‘Law school sucks’ to remind him not to take it all so seriously,” she said.

Grace first met Mr. Graber in August 1978 after a protest on the Pentagon steps where his law partner, Norm Townsend, was arrested. Grace and Townsend went back to the Old Town Alexandria office. Mr. Graber, she recalled, was there “without a shirt and wearing a Native American belt he liked.”

After the Supreme Court case, he took on many court-appointed defense cases. But his wider reputation was largely built around pro bono work with the Virginia chapter of the American Civil Liberties Union and defending activists from groups such as the Plowshares movement against nuclear arms.

Carl Kabat, nuclear arms opponent with Plowshares Eight, dies at 88

He represented Berrigan and his brother, the Rev. Philip Berrigan, several times after protests in front of the Pentagon and other sites. In 1987, Mr. Graber defended Ellsberg and nine other defendants appealing trespassing convictions after trying to stop CIA employees from entering the headquarters in Langley, Va.

Ellsberg — who in 1971 leaked documents known as the Pentagon Papers detailing U.S. strategy and misinformation in the Vietnam War — said the CIA protest sought to stop “hour-by-hour criminal activity” at the agency. Mr. Graber told reporters his defense would seek to call attention to U.S.-backed “systematic atrocities” in Central America and argue his clients’ actions were “reasonable and necessary.” (The conviction stood.)

“Sebastian was a master at trying to construct a defense to make a moral point,” said Patrick O’Neill, a Plowshares activist. “He always tried to portray his clients as being part of a greater good.”

Rights cases became his calling card. In 1990, he was part of an ACLU team that filed suit on behalf of a third-grader and the child’s mother in Woodstock, Va., over a school policy allowing an outside Christian group to enter classrooms to recruit students for outside Bible study. The case settled before trial.

Shortly after the Nisour Square massacre in Baghdad in September 2007 — when guards with the private security contractor then known as Blackwater opened fire and killed 17 civilians — Mr. Graber’s wife and others staged a mock re-creation of the bloodshed outside the company headquarters in Moyock, N.C., using an old car and real blood.

Mr. Graber again represented his wife, who spent five days in jail for trespassing.

Survivors include his wife, and two children, Nicholas Isaac Graber-Grace; daughter Jenneca Rose Graber-Grace, all of Durham, N.C. Mr. Graber died while visiting Grand Lake, Colo., and had a long-term heart condition, his wife said.

During the 1983 argument before the Supreme Court, Mr. Graber made a reference to “constitutional lawyers.”

Justice Thurgood Marshall quickly pounced on the apparently unnecessary distinction in the legal profession. “What is a constitutional lawyer?” he asked.

“A constitutional lawyer, your honor, is one who devotes his or her practice to the study of the Constitution and the prosecution and defense of constitutional issues,” he said, then paused a beat. “For example, myself.”

The justices chuckled.