Sebastian David Kennth Graber
August 1, 1952 - August 4, 2022
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Sebastian Graber, a legal adviser who addressed the activists, was most popular for a case about the option of appearing on the grounds of the Supreme Court. Sebastian Graber, a practicing attorney for almost 50 years, died in the arms of our beloved son Nicholas on August 4, 2022, in the stunning Rocky Mountains of Grand Lake, Colorado, according to his better half’s Facebook post, Mary, declaring her death. Sebastian Graber was 70 years old.
https://wikibious.com/sebastian-graber/
Sebastian Graber argued only one U.S. Supreme Court case in his career. But it was an important case, and an unusual one. He argued on behalf of his wife, Mary Grace, who was an appellee in the First Amendment case before the court. And they won.
The 1983 decision was United States v. Grace, and it was close to home—literally. At issue was a federal law barring banners, flags and the like in the Supreme Court building and on its grounds, including its surrounding sidewalks. Unanimously, the court ruled that expressive conduct is allowed on public sidewalks around the court, deemed to be protected by the First Amendment as a public forum. Justice Thurgood Marshall would have gone further, allowing expressive conduct on the court premises, not just the sidewalks.
Graber died Aug. 4 at age 70 after a long illness, according to his wife Grace. “I am profoundly grateful for my life with this interesting, devoted, clever 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 an activist too, and she met Graber when he defended her for free when she was arrested at a Pentagon protest in 1978. “It was kind of romantic,” she said. For years, Grace has been a “legal observer,” helping during demonstrations to interact with police and protesters so as to “try to keep them a little calmer,” she said.
The Supreme Court case developed when a friend named Thaddeus Zywicki went to Graber complaining that a Supreme Court police officer threatened to arrest him on the sidewalk before the high court for distributing leaflets about judges unfit for the bench. Zywicki left before being arrested but returned.
Grace decided to get involved by displaying the words of the First Amendment on a sign that she would take to the court. She expected to be arrested. But Graber urged her to stay on the public sidewalk with the sign, figuring that her chances of being arrested were smaller than if she went up the marble plaza.
Graber was right. During the oral argument in 1983, he went up against the formidable then-Solicitor General Rex Lee, who was wearing his morning coat, while the bearded Graber wore his “old scruffy ponytail,” Grace recalled. Graber fielded tough questions, but in the end persuaded the justices to embrace the “narrow ground” as Justice Byron White said in his opinion announcement, that “the statute was invalid under the First Amendment as applied to a conduct occurring on the public sidewalks which historically and traditionally are public forums for expressive activity.”
Graber did not mention during the argument that his wife was the appellee, but Grace said, “Somehow the justices were already aware of it, I believe.”
“I was really tickled when they came down with a unanimous verdict,” Grace said. “That certainly wouldn’t happen these days, but it was fascinating.” The decision has taken hold ever since. It has been cited widely in disputes over public forums. In Hodge v. Talkin, a 2015 case, United States v. Grace was cited 38 times, acknowledging that demonstrators could be allowed on the sidewalks, but not on the marble plaza.
Mark Goldstone, a lawyer in Washington who often represents protesters in similar situations, said in a statement, “Mary Grace is a living embodiment of the First Amendment. She has been a free speech legend since taking her brave stance in 1980 when she went to the public sidewalk in front of the U.S. Supreme Court and displayed a sign with the words of the First Amendment on it. Her husband, Sebastian Graber, was a young lawyer who bravely and skillfully represented her all the way to the Supreme Court. Together they demonstrated what freedom of speech is all about. The loss of Sebastian is a big loss and a time to redouble our efforts to defend free speech, the Constitution and our democratic way of life.”
‘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.
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.”
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.
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.
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.
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.”
https://www.washingtonpost.com/obituaries/2022/08/17/sebastian-graber-supreme-court-dies/
https://www.washingtonpost.com/obituaries/2022/08/17/sebastian-graber-supreme-court-dies/