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.
July 26, 2023
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.
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.
“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.
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.
1. Bridget C. Asay
2. Esha Bhandari
3. Ann E. Beeson
4. Lisa S. Blatt
