Recent Historical Society Events
"FCC Indecency Cases in the D. C. Circuit: An Historical Perspective"
The Hon. Patricia M. Wald, Hon. Timothy B. Dyk and Hon. Glen O. Robinson discussed the FCC indecency cases heard in the D.C. Circuit in a wide-ranging panel discussion on October 14, 2008. The panel was moderated by Christopher J. Wright, Esq. Mr. Wright, who previously served as General Counsel of the FCC and argued the Action for Children's Television case before the en banc D.C. Circuit in 1994, provided an overview of the FCC's indecency jurisprudence.
Professor Robinson from the University of Virginia was an FCC Commissioner in 1975 when the Commission issued its decision in the Pacifica case arising from the late George Carlin's famous "seven dirty words" monologue. Professor Robinson described the Commission's decision holding that Carlin's monologue was not suitable for broadcast and his own concurring statement which emphasized his conclusion that indecent language is a "nuisance" when broadcast at times when a large number of children are likely to be in the audience.
Judge Dyk of the Federal Circuit, who represented broadcasters in numerous indecency cases before taking the bench in 2000, provided perspective on the FCC's regulation of broadcasters in the 1970s through the 1990s. He also reviewed the decisions the D.C. Circuit issued reversing the FCC's judgment - in a majority opinion by Judge Tamm, a concurring opinion by Judge Bazelon, and a dissenting opinion by Judge Leventhal - and the Supreme Court's subsequent decision overturning the D.C. Circuit's decision.
Judge Wald, who served on the D.C. Circuit from 1979 to 1999, addressed the lengthy litigation culminating in Action for Children's Television, in which the en banc court upheld the 6 a.m. to 10 p.m. ban on indecent broadcasting. Judge Wald also described the en banc decision concerning indecency on cable channels that was heard by the en banc court on the same day as the broadcast case, and noted how indecency is now regulated very differently depending on whether it is on a broadcast channel or a cable channel, even though only 14% of households now obtain free over-the-air signals.
A lively question-and-answer period included discussion of whether counsel in the upcoming Supreme Court case involving the FCC's decision to ban "fleeting expletives," FCC v. Fox Broadcasting, should use those expletives in oral argument.
See flyer for addditional information.
"Technology in the Courtroom: Could it Change the Course of History?"
On July 31, 2008, the Historical Society sponsored "Technology in the
Courtroom: Could it Change the Course of History?" The program explored
the relative advantages and disadvantages of the use of technology to
present evidence and arguments in a jury trial.
As a catalyst for discussion of the issues, two mock closing arguments
were presented from the historic District of Columbia trial of Charles
Guiteau, the assassin of President James Garfield. An overview of the
historic setting of the 1881-1882 trial was first provided by Suzanne M.
Woods, Esq., professor of history at St. Albans School in the District
of Columbia. David Kendall of Williams & Connolly then presented a traditional closing
argument, without the use of technology, much of it drawn directly from
the transcripts of the prosecution's closing argument in the Guiteau
trial. Judge James Boasberg of the Superior Court of the District of Columbia then followed with a newly-created mock closing argument for the prosecution, which was supported with a variety of
technological images and animations.
The mock arguments were followed by a panel discussion moderated by Eva
Petko Esber of Williams & Connolly LLP. The panelists for the program
were Judges James Robertson and Rosemary M. Collyer of the United States
District Court for the District of Columbia, Francis D. Carter of
Zuckerman Spaeder LLP, as well as Mr. Kendall and Judge Boasberg.
Mock Court Program for Washington Area High School Students
Dozens of students from Washington area high schools appeared before federal judges in the E. Barrett Prettyman U.S. Courthouse on Friday, April 25. The students argued cases that were previously litigated in the Courts of the D.C. Circuit. Students from Anacostia Senior High School, Cardozo Senior High School, the Duke Ellington School for the Performing Arts, the Edmund Burke School, Friendship Public Charter School Collegiate Academy, the Luke C. Moore Academy Senior High School, Margaret Murray Washington Career High School, St. Albans and Wilson Senior High School participated in this, the Historical Society's fourth Mock Oral Argument Program.
Lawyer volunteers from the following law firms assisted the students prepare their arguments: Chadbourne & Parke, Covington & Burling, Goodwin Proctor, Howrey, O'Melveny & Myers, Shook Hardy & Bacon, Wilmer Hale, and Zuckerman Spaeder.
Cash bonuses were presented to the most outstanding oral advocates. See photographs from the event.
FOIA, National Security and the D.C. Circuit: A Safeguard or a Sham?
On November 29, 2007, the Historical Society of the D.C. Circuit presented a program (see flyer) on the role of the Courts of the District of Columbia Circuit in developing the law respecting the Freedom of Information Act ("FOIA") and national security. Particular attention was given to the origins and history of Exemption 1, 5 U.S.C. § 552(b)(1), pertaining to national defense and foreign policy; problems such as delay and over classification; how the line should be drawn between the public interest in disclosure and the needs of national security; what the drafters envisioned and whether those objectives are feasible in today's circumstances; and relevant judicial interpretations. You can now view in full the Society's program on the role of the Courts of the District of Columbia Circuit in developing the law respecting the Freedom of Information Act and national security. You may watch the entire video or a particular segment: the introduction or panel discussion using Windows Media Player.
The Hon. Patricia M. Wald, formerly Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, moderated the discussion, which was in Q and A format. Panelists included Stewart A. Baker, Assistant Secretary for Policy for the U.S. Department of Homeland Security and former General Counsel of the National Security Agency; Thomas S. Blanton, Director of the National Security Archives at George Washington University; the Hon. Royce C. Lamberth, U.S. District Judge for the District of Columbia; and James T. O'Reilly, Professor of Law, University of Cincinnati College of Law, and publisher of the FOIA Reporter.
The Steel Seizure Case in Historical Perspective
June 2007 marked the 55th anniversary of the Supreme Court's decision in the Steel Seizure Case. On June 2, 1952, the Supreme Court decided in Youngstown Sheet & Tube Co., v. Sawyer, 343 U.S. 579, that President Truman's seizure of most of the nation's steel mills to avert a nation-wide strike of steelworkers and keep the mills operating during the Korean War was an unauthorized, unconstitutional executive action that could not stand. The steel companies presented their claims initially to the U.S. District Court for the District of Columbia, which ruled against the Government on all points and issued a preliminary injunction. The Court of Appeals for the District of Columbia Circuit promptly stayed the injunction, deeming it best that the issues raised be decided by the Supreme Court.
In a special program, "The Steel Seizure Case in Historical Perspective: Presidential Power in Wartime," a panel of experts brought together by the Society analyzed the decision and its enduring ramifications. "The Steel Seizure Case in Historical Perspective" is available for viewing. You may watch the entire video or a particular segment: introduction, panel discussion, or Q&A using Windows Media Player. Panelists included: Patricia Bellia, Constitutional Law Professor, Notre Dame Law School; John Q. Barrett, Professor, St. John's University School of Law and Biographer of Justice Robert H. Jackson; Louis Fisher, Senior Specialist in Separation of Powers with the
Congressional Research Service of the Library of Congress and Author of "Presidential War Power;" Maeva Marcus, Author of "Truman and the Steel
Seizure Case;" and Stanley L. Temko, Senior Counsel, Covington & Burling LLP, and Attorney for Petitioner United States Steel Corporation in the
Steel Seizure Case. Carl Stern, former Legal Affairs Correspondent for NBC-TV, moderated the discussion. Over 250 judges, lawyers, professors, law clerks, law students and others attended the panel discussion.
The program was held on July 25, 2007, in the Ceremonial Courtroom of the E. Barrett Prettyman U.S. Courthouse. A reception followed the program. Click here to view the program flyer.
Panel Discussion on The Pentagon Papers: Did the Courts Get it Right?
Attorneys directly involved in the Pentagon Papers cases and law professors who have written about the cases talked with moderator Carl Stern about their experiences in a panel discussion sponsored by the Historical Society on November 30, 2006. On July 26, 2006, the Historical Society staged a reenactment of the cross examination of
a government witness from the Independent Counsel prosecution of former Secretary of
Agriculture, Michael Espy. The Honorable James Robertson presided over this unique program
and moderated a discussion among the participants afterward on the art of cross examination and
the unusual challenges presented by the Espy trial. The Ceremonial Courtroom was packed
with an audience that included numerous judges and prominent members of the Bar along with
many summer associates and law clerks.
Barry Coburn, a partner with Trout, Cacheris PLLC, played the witness, Richard Douglas,
a former executive of agricultural corporation Sun-Diamond Growers. Coburn was very familiar
with the facts of the case, having served on the Espy trial team while working for the Office of
Independent Counsel. Reid Weingarten, head of the White Collar Criminal Defense practice at
Steptoe and Johnson, and Michele Roberts, a partner with Akin Gump Strauss Hauer & Feld,
took turns demonstrating the cross examination and serving as government counsel for purposes
of objections during the other's cross.
Weingarten opened his cross of Douglas by eliciting many sympathetic highlights of
Espy's career and personal history. To defeat the bribery charges, Weingarten had Douglas
admit that the gifts he provided Espy were given in friendship and not in exchange for official
acts. Though the cross examination was mostly friendly, Weingarten forced Douglas to admit
that he would lie to protect his own interests, an important point to help defeat some of the
testimony that would have damaged Espy.
Roberts then demonstrated a different approach, mostly using Douglas to paint the
Independent Counsel as the bad guy. Displaying the physical nature of effective cross, Roberts
pointed repeatedly at Weingarten, who had switched roles to play the Independent Counsel,
asking whether "that man" had singled Douglas out for persecution and scrutinized every aspect
of his life and career. Douglas agreed wholeheartedly, which of course is atypical for a witness
who was supposed to be cooperating with the government, but proved true in this unusual
prosecution. As Roberts later explained, these points supported the defense theory that the
government had overcharged the case.
Judge Robertson, who presided over a related case prosecuted in District Court, began the
discussion by asking questions of the participants drawn from the reenactment. Coburn
described the facts of the direct examination and the cross from the actual case, offering
fascinating commentary on the obvious antipathy between Independent Counsel Donald Smaltz
and witness Douglas.
One of the most significant points to emerge from the lively discussion was the tendency
of Independent Counsel investigations to venture too far. Weingarten, who defended Espy at
trial, expressed his view that the Espy case should have never been brought. President Clinton
fired Espy after learning about his conduct, which should have ended the matter, according to
Weingarten. Coburn offered a slightly different view, suggesting that the prosecution might have
turned out differently had the investigation remained narrowly focused on violations that would
not have made the prosecution look so overzealous. All agreed, however, that the case illustrated
some of the inherent problems with the Independent Counsel statute, which may help explain
why Congress has ultimately allowed the statute to lapse.
The trial spawned activity on Capitol Hill as well. Gene Kimmelman described the extensive lobbying efforts on behalf of AT&T and how they affected debate in the Senate and the House. Interestingly, as Kimmelman pointed out, the drive to break up the company was not a populist campaign, as consumers were overall not unhappy with the status quo. Given the uncertainty of these efforts, the company eventually pushed to settle the case. Trienens suggested that Judge Greene's handling of the trial was one of the most influential factors that led AT&T to negotiate; convinced that it would lose at trial, the AT&T Board ultimately agreed that a consent decree was the best alternative for the company.
Michael Kellogg described how the industry has evolved since the breakup and the difficulties that plagued the companies and regulators prior to the passage of the 1996 Telecommunications Act. The general consensus of the panel was that overall, the market has benefitted from the breakup, and the problems that the Defense Department and others predicted might result have not been realized.
Chief Judge Greene is unfortunately no longer here to add his thoughts, but thanks to the Society's Oral History Project, he left us with these words on the case: "I'm perfectly content with my own view that the breakup was a good thing. It brought competition into a field where there hadn't been any competition, and that's the American way." Hear those words for yourself in Judge Greene's unique voice by visiting his Oral History page on the Society's website and selecting the sound clip "Reflections on the AT&T Case." You may also wish to review the transcript of his oral history on the website.
The United States District Court for the District of Columbia will present the first annual Daniel M. Gribbon Pro Bono Advocacy Award at the D. C. Circuit's Judicial Conference in June of this year. The Award will recognize an individual or a law firm that has demonstrated distinguished advocacy in a pro bono matter before the U. S. District Court for the District of Columbia within the 18 months prior to the nomination date.
The Gribbon Award has been graciously endowed by the family and friends of Daniel M. Gribbon, a life-time supporter of pro bono legal services. Among many activities serving the public interest, Daniel M. Gribbon was the first President of the Historical Society of the
D. C. Circuit. Nominations are being managed by the D. C. Circuit Judicial Conference Standing Committee on Pro Bono Legal Services. Nominations for the first Gribbon award were submitted by March 1, 2006. Nominations for future awards will be due on the first day of March of each year.
On November 17, 2004, the Society put on an exciting program, "Reflections on Watergate." Nearly 30 years after the jury returned its verdict finding President Nixon's closest advisors guilty of obstruction of justice, the key participants in that historic trial came together for the first time since the trial to discuss its historic significance and the lessons learned. Lead prosecutor, James F. Neal; Attorney General John Mitchell's counsel, Plato Cacheris; the lead government witness, former Counsel to the President John Dean; and Judge John Sirica's law clerk, D. Todd Christofferson, gave their unique perspectives on the events that led to President Nixon's resignation and the subsequent cover-up trial. Former NBC News Correspondent Carl Stern moderated the panel discussion.
