Women Defendants Contributed Mightily to First Amendment Jurisprudence

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Women contributed mightily to the development of First Amendment jurisprudence – mostly as defendants or petitioners.

The United States has a long and unfortunate history of rank gender discrimination. After all, women did not receive the right to vote until ratification of the 19th Amendment in 1920. But, one area where women contributed mightily was in the development of First Amendment jurisprudence — mostly as defendants or petitioners.

Many of the most seminal U.S. Supreme Court free-speech decisions featured female defendants. Consider Schenck v. United States (1919), the case in which Justice Oliver Wendell Holmes Jr. initially introduced the term “clear and present danger” to provide a rough boundary between protected and unprotected speech. History remembers mainly the lead defendant in that case as Charles Schenck, general secretary of the Socialist Party. However, there was a co-defendant (and later co-petitioner) named Elizabeth Baer, who also served as a member of the Socialist Party’s executive committee in Philadelphia. She later unsuccessfully ran to be mayor of Philadelphia.

Another example was Mollie Steimer of Abrams v. United States (1919) fame. The Abrams case featured five defendants who were sentenced to 20-year prison sentences merely for distributing leaflets critical of U.S. foreign policy toward Russia. One of those five defendants was Steimer. The Abrams decision is best known for Justice Holmes’ powerful dissenting opinion in which he talked about “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” His words form the basis for the marketplace of ideas concept, a pervasive metaphor in First Amendment law to this day.

Charlotte Anita Whitney, the niece of U.S. Supreme Court Justice Stephen Field, was the defendant in Whitney v. California (1927), a decision celebrated for what First Amendment gurus Ronald Collins and David Skover have called the “curious concurrence” of Justice Louis Brandeis. In that decision, Brandeis offered numerous justifications for the broad protection of free speech, including the famous refrain that the default position should be “more speech, not enforced silence.”

In 1929, the U.S. Supreme Court affirmed the conviction of another female defendant, a Hungarian-born pacifist named Rosika Schwimmer. The case of U.S. v. Schwimmer inspired another potent dissent from Justice Holmes, who penned the memorable sentence: “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.” A female attorney named Olive Rabe argued on behalf of Schwimmer.

In 1931, in the words of legendary First Amendment scholar Harry Kalven, “speech started to win.” One of those significant victories came in the case of Stromberg v. California (1931), a case involving 19-year-old Yetta Stromberg, who was arrested for displaying a red flag at a Communist youth camp. The court reversed her conviction and at least implicitly recognized the concept of symbolic speech — that the display of a flag was a form of expression.

In the coming year, as we celebrate the 100th anniversary of ratification of the 19th Amendment, we should also do well to remember the courageous female defendants who often faced persecution, ostracism and scorn, merely for holding dissident political views.

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).

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