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42 women who argued First Amendment free expression cases before the Supreme Court — First Amendment News 388

From Olive Henrietta Rabe (1929) to Florence Perlow Shientag (1953) to Kristen Waggoner (2023): A history of women arguing for free speech in the highest court in the land.
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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 United States v. Schwimmer in 1929. The issue raised in the case was whether Hungarian feminist and pacifist Rosika Schwimmer could be denied citizenship under the Naturalization Act of 1906, 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.

Rosika Schwimmer
Rosika Schwimmer

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.

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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.”

— Florence Perlow Shientag

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 Superior Films v. Dept. of Education of Ohio, 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. 

FLORENCE PERLOW SHIENTAG
Florence Perlow Shientag

What follows was excerpted from a 2009 New York Bar Association article titled, “Remembering Honorable Florence Perlow Shientag (1908-2009)”:

[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 French film La Ronde, 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 Superior Films, Inc. v. Department of Education (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 

Sorrell v. IMS Health Inc. (2011) (for Petitioners)

2.  Esha Bhandari 

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

3.  Ann E. Beeson  

Ashcroft v. American Civil Liberties Union (2004) (for Respondents) 

Ashcroft v. American Civil Liberties Union (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 

Time, Inc. v. Firestone (1976) (for Respondent)

6.  Wilhelmina Reuben Cook

FCC v. WNCN Listeners Guild (1981) (for Respondents Office of Communication of United Church of Christ et al)

7.  Sally Louise Dilgart 

Pope v. Illinois (1987) (for Respondent)

8.  Kathi Alyce Drew  

Texas v. Johnson (1989) (for Petitioner)

9.  Mary Dunlap 

San Francisco Arts & Athletics, Inc. v. United States Olympic Committee (1987) (for Petitioners)

10.  Leslie D. Edwards 

Hazelwood School District v. Kuhlmeier (1988) (for Respondents)

11.  Aimee Feinberg  

Americans for Prosperity v. Bonta (2021) (for Respondent)

12.  Lucinda M. Finley 

Schenck v. Pro-Choice Network of Western New York (1997) (for Respondents)

13.  Kristin Booth Glen

FCC v. WNCN Listeners Guild (1981) (for Respondents WNCN Listeners Guild)

14.  Christine O. Gregoire  

Brockett v. Spokane Arcades (1985) (for Appellants)

15.  Sophia H. Hall  

Grayned v. City of Rockford (1972) (for Appellant)

16.  Pamela Harris  

Pleasant Grove City, Utah v. Summum (2009) (for Respondent)

17.  Elena Kagan

Citizens United v. Federal Election Commission (2010) (for Respondent)

Humanitarian Law Project v. Holder Jr.  (2010) (for Respondents)

18.  Pamela Karlan

Lozman v. City of Riviera Beach, Florida (2018) (for Petitioner) 

19.  Deborah LaBelle  

Overton v. Bazzetta (2003) (for Respondents) 

20.  Mary Lee Leahy  

Rutan v. Republican Party of Illinois (1990) ( for the Petitioners in No. 88-1872 & the Respondents in No. 88-2074)

21.  Cindy S. Lee  

Garcetti v. Ceballos (2006) (for Petitioners) 

22.  Barbara B. McDowell

United States v. United Foods, Inc. (2001) (for Petitioner) 

23.  Marjorie H. Matson 

Pittsburgh Press Co. v. Pittsburgh Commission on Human Rights (1973) (for Respondent)

24.  Jennifer Grace Miller

McCullen v. Coakley (2014) (for Respondents)

25.  Patricia Millett

United States v. Stevens (2010) (for Respondent) 

Shaw v. Murphy  (2001) (amicus for U.S., supporting Petitioners)

26.  Analeslie Muncy 

FW/PBS, Inc. v. City of Dallas (1990) (for Respondent)

27.  Erin E. Murphy

McCutcheon v. Federal Election Commission (2014) (for Appellants) 

28.  Rebecca T. Partington 

44 Liquormart, Inc. v. Rhode Island (1996) (for Respondents)

29.  Margie J. Phelps

Snyder v. Phelps (2011) (for Respondent) 

30.  Dorothy Prengler 

Friedman v. Rogers (1979) (for Appellants)

31.  Elizabeth Prelogar

Americans for Prosperity v. Bonta (2021) (for U.S. as amicus curiae)

32.  Maureen O. Reilly 

Young v. American Mini Theatres (1976) (for Petitioner)

33.  Joyce Ellen M. Reikes 

Press-Enterprise Co. v. Superior Court of Cal., County of Riverside (1986) (for Respondent)

34.  Bonnie I. Robin-Vergeer

Garcetti v. Ceballos (2006) (for Respondent) 

35.  S. Adele Shank 

Osborne v. Ohio (1989) (for Appellant)

36.  Florence Perlow Shientag  

Superior Films v. Dep’t of Education of Ohio (1953) (for Appellant)

37.  Maria Milagros Solo 

Posadas de Puerto Rico v. Tourism Company of Puerto Rico (1986) (for Appellant)

38.  Kristen Waggoner

303 Creative LLC v. Elenis  (2023) (for Petitioner)

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

39.   Brenda Wright 

Randall v. Sorrell (2006) (for Respondent)  

40.  Barbara D. Underwood 

FEC v. Colorado Republican Federal Campaign Committee (2001) (for Petitioner) 

Hill v. Colorado (2000) (for supporting Respondents)

Greater New Orleans Broadcasting Association, Inc. v. United States (1999) (for Respondents)

41.  Natalie E. West 

Citizens Against Rent Control v. Berkeley (1981) (for Appellees)

42.  Anne Owings Wilson 

Arkansas Writers’ Project v. Ragland (1987) (for Appellant) 

General informational sources relied upon 

2022-2023 SCOTUS term: Free expression and related cases

Cases decided

  • 303 Creative LLC v. Elenis (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.)
  • Counterman v. Colorado (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.”)
  • Jack Daniel’s Properties, Inc. v. VIP Products LLC (9-0: held — 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.)
  • United States v. Hansen (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

Cert. granted and case remanded

  • U.S. v. Hernandez-Calvillo (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) .
  • Klein v. Oregon Bureau of Labor and Industries (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

Qualified immunity

Immunity under Foreign Sovereign Immunities Act 

Liability Anti-Terrorism Act

  • Twitter v. Taamneh (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 18 U.S.C. § 2333(d)(2).”)

Section 230 immunity

  • Gonzalez v. Google (held, 9-0, per curiam, SCOTUSblog: “The 9th Circuit’s judgment — which held that plaintiffs’ complaint was barred by Section 230 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”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as 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 FIRE or of Mr. Collins. 

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