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The first free speech case argued by a woman in the Supreme Court

The first free speech case in the Supreme Court involving a woman and argued by a woman was in 1929. The issue raised in the case was whether Hungarian feminist and pacifist could be denied citizenship under the , after saying she would not take up arms in defense of the country. 

Schwimmer was defended in the High Court by Olive Henrietta Rabe — the first woman to argue a free expression/loyalty oath case in the Supreme Court. She attended the University of Chicago, where she majored in economics and was elected to Phi Beta Kappa. Rabe began her legal education at age 27 at John Marshall Law School between 1914 and 1915.  While there, she maintained a nearly straight A average. She then transferred to Northwestern University Law School, again earning impressive grades, including an A in her five-credit constitutional law course. Rabe received her LL.B. in 1916.

The Supreme Court rejected Schwimmer’s free speech claim in a 6-3 majority opinion authored by Justice Pierce Butler. Justice Holmes, joined by Brandeis, dissented:

The applicant seems to be a woman of superior character and intelligence, obviously more than ordinarily desirable as a citizen of the United States. It is agreed that she is qualified for citizenship except so far as the views outlined in a statement of facts . . . 

She is an optimist, and states in strong and, I do not doubt, sincere words her belief that war will disappear, and that the impending destiny of mankind is to unite in peaceful leagues. I do not share that optimism, nor do I think that a philosophic view of the world would regard war as absurd. But most people who have known it regard it with horror, as a last resort, and even if not yet ready for cosmopolitan efforts, would welcome any practicable combinations that would increase the power on the side of peace. 

The notion that the applicant's optimistic anticipations would make her a worse citizen is sufficiently answered by her examination, which seems to me a better argument for her admission than any that I can offer. Some of her answers might excite popular prejudice, but, if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us, but freedom for the thought that we hate. 

I think that we should adhere to that principle with regard to admission into, as well as to life within, this country. And recurring to the opinion that bars this applicant's way, I would suggest that the Quakers have done their share to make the country what it is, that many citizens agree with the applicant's belief, and that I had not supposed hitherto that we regretted our inability to expel them because they believed more than some of us do in the teachings of the Sermon on the Mount.

Related

• Ronald K.L. Collins and David L. Hudson, Jr., “Remembering 2 Forgotten Women in Free-Speech History,” First Amendment News, First Amendment Center (May 27, 2008). See also Ronald K.L. Collins, ed., “,” Cambridge University Press (2010), pp. 334-342.
• Jane Dall Wilson, “,” The Circuit Rider.

The first woman to argue a First Amendment free expression case in the Supreme Court

“Being a career woman is no good if you finish up as an imitation man. I believe women should look, feel, smell like women. . . . In my 50 years that I have been practicing law, there has been a lessening of the dismissing and intolerant attitude towards women lawyers. This significant improvement is due to the performance and demonstrated ability of women in our profession. Brains have no sex.”

—

The first woman to argue a First Amendment free expression case was Florence Perlow Shientag. In 1953, she argued on behalf of the Appellant in , which struck down a state law that allowed administrative agencies to refuse licenses to movies (a form of censorship).

Shientag was a lawyer with a remarkable career, a fragment of which is outlined below. 

What follows was excerpted from a 2009 New York Bar Association article titled, “”:

[Shientag] took her law degree from the New York University Law School in 1931. In 1937, the New York City Bar finally voted to allow the admission of women. [The following year] Shientag was in the first group of 13 women lawyers admitted as members. . . In 1943, she became an Assistant United States Attorney for the Southern District of New York. She was the first female federal prosecutor in New York, and one of the first in the country.  

[. . .] 

In 1953, she took on a precedent-setting case involving the , which had been declared “immoral” and banned by the NYS Board of Regents, which governed film licensing. On behalf of her client, the film’s distributor, she argued that the standards used by the Regents were vague and unconstitutional under the First Amendment right to free speech and the Fourteenth Amendment bar on the states unlawfully taking property. A critical issue was whether the government could “pre-censor” a film before it was shown, and this issue was complicated by a 1915 decision in Ohio that had held that movies were not entitled to the protections of the First Amendment. The trial court, Appellate Division and NY Court of Appeals all upheld the ban.

[Shientag filed a petition] for certiorari to the U.S. Supreme Court was granted, and the case was heard with another matter involving the censorship of the film M. She personally briefed and argued the case before the Supreme Court, and in a unanimous opinion by Justice William O. Douglas, the Court struck down the ban and the distinction between movies and other forms of communication.

The case was (1954)

Protection of the right to freedom of expression was very important to Shientag, not only as a legal matter, but because she was an artist herself and a patron of the arts. Her home was filled with art, and she was a great friend to many artists, including the sculptor Henry Moore, and most especially Pablo Picasso, whom she knew well and visited regularly. Indeed, when his daughter Maya had a child, Shientag was named godmother. Shientag’s paintings and sculptures may not have been as famous as her friends, but she won an award for one of her sculptures, and being an artist gave her a unique perspective on the potential impact of the law in this field. As a result, she was invited to chair the City Bar’s Section on Law and the Arts, which under her leadership held distinguished lectures on the rights of artists, the laws affecting art, new media, etc.

Women who argued First Amendment free expression cases in the United States Supreme Court

1.  Bridget C. Asay 

. (2011) (for Petitioners)

2.  Esha Bhandari 

United States v. Hansen (2023) (for Respondent)

3.  Ann E. Beeson  

(2004) (for Respondents) 

(2002) (for Respondents)

4.  Lisa S. Blatt 

Jack Daniel’s Properties, Inc. v. VIP Products LLC (2023) (for Petitioner)

Mahanoy Area School District v. B.L. (2021) (for Petitioner)

5.  Edna L. Caruso 

(1976) (for Respondent)

6.  Wilhelmina Reuben Cook

(1981) (for Respondents Office of Communication of United Church of Christ et al)

7.  Sally Louise Dilgart 

(1987) (for Respondent)

8.  Kathi Alyce Drew  

(1989) (for Petitioner)

9.  Mary Dunlap 

(1987) (for Petitioners)

10.  Leslie D. Edwards 

(1988) (for Respondents)

11.  Aimee Feinberg  

(2021) (for Respondent)

12.  Lucinda M. Finley 

(1997) (for Respondents)

13.  Kristin Booth Glen

(1981) (for Respondents WNCN Listeners Guild)

14.  Christine O. Gregoire  

(1985) (for Appellants)

15.  Sophia H. Hall  

(1972) (for Appellant)

16.  Pamela Harris  

(2009) (for Respondent)

17.  Elena Kagan

(2010) (for Respondent)

 (2010) (for Respondents)

18.  Pamela Karlan

(2018) (for Petitioner) 

19.  Deborah LaBelle  

(2003) (for Respondents) 

20.  Mary Lee Leahy  

(1990) ( for the Petitioners in No. 88-1872 & the Respondents in No. 88-2074)

21.  Cindy S. Lee  

(2006) (for Petitioners) 

22.  Barbara B. McDowell

(2001) (for Petitioner) 

23.  Marjorie H. Matson 

(1973) (for Respondent)

24.  Jennifer Grace Miller

(2014) (for Respondents)

25.  Patricia Millett

(2010) (for Respondent) 

 (2001) (amicus for U.S., supporting Petitioners)

26.  Analeslie Muncy 

(1990) (for Respondent)

27.  Erin E. Murphy

(2014) (for Appellants) 

28.  Rebecca T. Partington 

(1996) (for Respondents)

29.  Margie J. Phelps

(2011) (for Respondent) 

30.  Dorothy Prengler 

Friedman v. Rogers (1979) (for Appellants)

31.  Elizabeth Prelogar

(2021) (for U.S. as amicus curiae)

32.  Maureen O. Reilly 

(1976) (for Petitioner)

33.  Joyce Ellen M. Reikes 

(1986) (for Respondent)

34.  Bonnie I. Robin-Vergeer

(2006) (for Respondent) 

35.  S. Adele Shank 

(1989) (for Appellant)

36.  Florence Perlow Shientag  

(1953) (for Appellant)

37.  Maria Milagros Solo 

(1986) (for Appellant)

38.  Kristen Waggoner

  (2023) (for Petitioner)

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018) (for Appellant)

39.   Brenda Wright 

(2006) (for Respondent)  

40.  Barbara D. Underwood 

(2001) (for Petitioner) 

(2000) (for supporting Respondents)

(1999) (for Respondents)

41.  Natalie E. West 

(1981) (for Appellees)

42.  Anne Owings Wilson 

(1987) (for Appellant) 

General informational sources relied upon 

• Julie Silverbrook & Emma Shainwald, “,” Supreme Court Historical Society 
• Marlene Trestman, “Women Advocates Before the Supreme Court, From October Term 1880 through December 2016,” Supreme Court Historical Society (updated 2022)
• Tony Mauro, “” Supreme Court Brief (Oct. 25, 2017)

2022-2023 SCOTUS term: Free expression and related cases

Cases decided

•  (6-3 per Gorsuch for the majority and Sotomayor for the dissent: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.)

•  (held: First Amendment violated — 4 votes per Kagan with Sotomayor concurring in part joined by Gorsuch in part. Thomas filed a dissent and Barrett also filed a dissent, in which Thomas joined). (“In this context, a recklessness standard — i.e., a showing that a person ‘consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another’ . . . — is the appropriate mens rea. Requiring purpose or knowledge would make it harder for States to counter true threats — with diminished returns for protected expression. The State prosecuted Counterman in accordance with an objective standard and did not have to show any awareness on Counterman’s part of his statements’ threatening character. That is a violation of the First Amendment.”)

•  (9-0:  — When a defendant in a trademark suit uses the mark as a designation of source for its own goods or services — i.e., as a trademark — the threshold Rogers test for trademark infringement claims challenging so-called expressive works, see Rogers v. Grimaldi, does not apply, and the Lanham Act’s exclusion from liability for “[a]ny non-commercial use of a mark” does not shield parody, criticism, or commentary from a claim of trademark dilution.) (This is from footnote 1 of the majority opinion: “To be clear, when we refer to ‘the Rogers threshold test,’ we mean any threshold First Amendment filter.” Justice Kagan wrote the majority. Justice Sotomayor filed a concurring opinion, in which Justice Alito joined. Justice Gorsuch filed a concurring opinion, in which Justices Thomas and Barrett joined.)

•  (7-2: Title 8 U.S.C. § 1324(a)(1)(A)(iv) — which criminalizes “encouraging or inducing” illegal immigration — forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law and is not unconstitutionally overbroad.)

Review granted

•  (argued Dec. 5)
•   (argued March 22)
•  (argued, March 27) (Volokh commentary )
•  (argued, April 19)

Cert. granted and case remanded

•  (cert. granted, judgment vacated, and case remanded to the U.S. Court of Appeals for the 10th Circuit for further consideration in light of United States v. Hansen) .
•  (cert. granted, judgment vacated, and case remanded to the Court of Appeals of Oregon for further consideration in light of 303 Creative LLC v. Elenis).

Pending petitions

State action

•  (cert. granted)
•  (cert. granted)

Qualified immunity

•  (cert. denied)

Immunity under Foreign Sovereign Immunities Act 

•  (cert. denied)

Liability Anti-Terrorism Act

•  (held, 9-0 per Thomas, J.: SCOTUSblog: “Plaintiffs’ allegations that the social-media-company defendants aided and abetted ISIS in its terrorist attack on a nightclub in Istanbul, Turkey fail to state a claim under .”)

Section 230 immunity

•  (held, 9-0, per curiam, SCOTUSblog: “The 9th Circuit’s judgment — which held that plaintiffs’ complaint was barred by  of the Communications Decency Act — is vacated, and the case is remanded for reconsideration in light of the court’s decision in Twitter, Inc. v. Taamneh.”)

Review denied

•  
•  

Previous FAN

FAN 387: “What is the stopping point? Responses to the Supreme Court’s 303 Creative decision”

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This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIREas part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIREor of Mr. Collins.