Seven seconds of naked buttocks that aired on network television in 2003 spurred nearly a decade of litigation over the Federal Communications Commission’s power to fine broadcasters over allegedly indecent programming. In June 2012, Wilmer Cutler Pickering Hale and Dorr was part of a team that persuaded the U.S. Supreme Court that the commission’s regulations were unconstitutionally vague.
Seth Waxman, chairman of the firm’s appellate and U.S. Supreme Court practice, feared the justices would lack the appetite to strike down a regulatory regime without a substitute set of rules on the table. He argued for ABC Inc., which faced a $1.24 million fine. The court’s 8-0 decision left room for the commission to make new guidelines but, according to Waxman, the agency hasn’t jumped back into the fray. "Broadcast networks are not going to be subject to post hoc, idiosyncratic decision-making about sanctions," he said.
Wilmer’s practice continued to burnish its high court credentials, hiring five former Supreme Court clerks within the past year. The firm’s attorneys have argued more than 135 cases before the high court, by the firm’s count, and are active in state and federal appellate courts nationwide.
Wilmer lawyers were front and center in the legal fight over same-sex marriage, securing the first federal appeals court ruling in May 2012 that the Defense of Marriage Act was unconstitutional. The firm represented the commonwealth of Massachusetts pro bono before the U.S. Court of Appeals for the First Circuit, working with the state attorney general’s office.
When the Supreme Court took up a Second Circuit ruling finding DOMA unconstitutional and a challenge to California’s Proposition 8 ballot initiative barring same-sex marriage, the firm stayed involved through the filing of amicus briefs. Wilmer wrote a brief on behalf of former senior U.S. Department of Justice officials supporting the court’s jurisdiction to hear the case.
Waxman, a former solicitor general, was on the brief. In the Proposition 8 case, Waxman helped craft an amicus brief supporting gay marriage that was signed by high-profile Republicans. "It was an interesting exercise, trying to write a brief that seemed useful, persuasive and reflected a consensus opinion," he said. The court has yet to issue its decisions in either case.
Waxman scored a victory for longtime client Mon­santo Co. in May, when a unanimous U.S. Supreme Court upheld Monsanto’s practice of licensing its patented genetically modified seeds. Waxman called it a "mission critical" win for Monsanto.