FAN 200 (First Amendment News) Kellye Testy, Foreword: Prior Restraint: Women’s Voices and the First Amendment

Kellye Testy was the first woman to lead the University of Washington School of Law, serving as dean from 2009-17. From 2004-09 she was the dean of Seattle University School of Law (and its first female dean as well). In 2016, Dean Testy was president of the Association of American Law Schools (AALS). She now serves as the president and CEO of the Law School Admission Council (LSAC).


Kelly Testy

Like other terms in law, the meaning of the First Amendment springs from many sources – the intent and language of the drafters, those originally called upon to interpret it, and then others who have explained it since. Drafters, lawmakers, lawyers, judges, scholars, and activists, too, have all, in one way or another, added to the bounty that has produced the jurisprudence of the First Amendment.

While Mr. Madison’s constitutional handiwork gave rise to an enormous number of cases, controversies, and critiques, substantially all of those came to be seen as largely, if not exclusively, the work of men. Just consult any list of First Amendment greats, or any summary of First Amendment history (even wiki), and what are you likely to find?  Lists and pictures of (typically white) men.

Why is this so? Is it because women were excluded from the interpretive mix? To a large extent, yes. After all, Mr. Madison did not share the drafting table or parlor room debates with women. So much for women and originalism. Much the same holds true for judges from the time of Holmes and Brandeis through that of Black and Brennan. Women were admitted to law schools in very small numbers until the mid-1970s, which limited (and continues to limit) women’s influence in law.

Professor Catharine MacKinnon 
(credit: Charlie Rose)

And what of First Amendment scholars? Here, too, sex discrimination has restrained women’s voices in many ways, from hiring practices to course assignments, to what “counts” as First Amendment scholarship. To take one example, consider Catharine MacKinnon’s significant critique of protecting pornography as speech under the First Amendment. Whether we agree with her viewpoint or not, her argument about the First Amendment was influential and creative. Yet, her work is more likely to be seen as about “pornography” or “sex discrimination” than about the First Amendment.

    Olive Rabe (credit: Marty Caivano)

A final point about the possible reasons for the relative lack of women’s visibility in First Amendment jurisprudence bears note. We may often be more eager to protect freedoms and rights that we feel we have and enjoy using. Put simply, men who have had “free speech” want to keep speaking. But women’s speech has been restrained, both as a matter of formal law and of social practices, including violence. Much of women’s energy has had to be directed to gaining the right to speak and, then, to finding one’s voice. To again reference Professor MacKinnon’s work:  “Take your foot off our necks, then we will hear in what tongue women speak.”

More and more, we do hear women speak – at least some women. Women’s access to speech (and being heard) is differentially distributed based on intersectional identities, including race and class. What will be interesting to monitor as that voice continues to expand (consider, e.g., #metoo), is how greater diversity in who holds the microphone will, in turn, influence the meaning of the First Amendment.

The future meaning of the First Amendment will be all the richer if we also do more to recognize the historical contributions women have already made. I was thus delighted to see that in FAN 199.

Patrica Millett (now judge / credit:
Illinois Alumni Association)

Ron Collins, my friend and colleague, compiled the names of women and the First Amendment free expression cases they argued in the Supreme Court. I, for one, had no idea that Olive H. Rabe, a labor lawyer, represented the respondent in United States v. Schwimmer (1929), another one of the cases remembered because of a Holmes dissent. I was also surprised to learn that Patricia Millett (now a federal D.C. Circuit Judge Millett) argued two First Amendment cases in the Supreme Court – first as a government lawyer and then as private counsel.

Moreover, and thanks again to Professor Collins, it is exciting to see 15 women join in this 200th issue of FAN to express a wide range of views – liberal, libertarian, feminist, and practitioner focused as well. My point is not ideology but inclusion, which requires opportunity and encouragement. Only then will women be able to add their own ideas, values, and judgments to the meaning of the First Amendment. Moreover, only then will our understanding of the First Amendment be deepened. Inclusion is the right strategy not only because it is honorable, but also because it generates a better result.

It is against that backdrop that I am grateful to have been asked to write the Foreword to this welcome and exciting symposium. I encourage others to help bring greater visibility to women’s contributions to all areas of law and to also encourage and inspire women to work in this and other areas of law and policy. Only through radical and persistent inclusion will we build a system of law and justice under which we all may thrive. Onward!

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