When people think of noted civil liberties defender Allen Brown, they probably remember his landmark case argued before the U.S. Supreme Court, Brandenburg v. Ohio. They might remember his fight against the Sunday commerce laws of the 1950’s, his defense of the antiwar protesters of the 1960’s or his support of treatment rather than incarceration for those addicted to the harder drugs like heroin and cocaine in the 1970’s. They may even remember his fights against the pornography laws of Hamilton County and his appearance on NBC’s the Today Show in 1988 during which he advised Bryant Gumbel to hide his collection of adult materials lest he be arrested.
What they probably don’t know is that Allen Brown had a very unique collection of legal statuary. Some of it is serious – a noble bust of President Abraham Lincoln, proud judges wielding their gavels like swords of justice, earnest attorneys orating passionately about the causes in which they believe. Some of it is whimsical – a bear dressed as a judge with a “court order” of a BLT, honey and pie and a collection of books called “How to Stay Awake” or the diminutive figure who looks suspiciously like Dopey (of Snow White fame) playing dress-up as a lawyer. Whether serious or silly however, all of it is interesting and the Hamilton County Law Library is honored to welcome them as part of our permanent collection, thanks to Norman Slutsky, Esq. who donated them earlier this month.
Allen Brown was born in 1919. He served his country bravely during World War II, receiving a Bronze Star and two Purple Hearts. He received his law degree from UC in 1947 and practiced law until his retirement in 1996.
Some of his cases are detailed below, but I wanted to take a moment to discuss the US Supreme Court case Brandenburg v Ohio, as was examined in two Cincinnati Magazine articles, linked below.
In 1964, members of the Ku Klux Klan held a rally just north of Cincinnati and invited WLWT-TV Channel 5 to cover it. During that event, one of the Klansmen, Clarence Brandenburg, threatened violence if the government continued to “suppress the White, Caucasian race.” An Ohio law passed in 1919, the Ohio Criminal Syndicalism Statute, made advocating violence as a means of social or political change a crime, and Brandenburg was arrested. He was quickly convicted and sentenced to 1-10 years in prison and a fine.
Brandenburg was out of funds and, despite his extreme abhorrence of the organization, accepted representation from the ACLU. Allen Brown was a volunteer attorney for the ACLU in Ohio and even though Brandenburg was anti-Semitic and Allen Brown was Jewish, Brown agreed to take the case, recognizing that the disturbing nature of what Brandenburg was saying did not diminish his right, as guaranteed by the First and Fourteenth Amendments, to say it.
The case went before the U.S. Supreme Court during the summer of 1969. Brown’s argument was that “a state could not forbid someone from advocating the use of force, unless such advocacy incites or is likely to produce imminent lawless action.” One of the defining moments of the case occurred when Hamilton County Prosecutor Leonard Kirschner (who was representing Ohio), made a point that a person running through Harlem yelling “Bury the Negroes” was obviously inciting violence. Justice Thurgood Marshall interrupted and said such a person “wouldn’t last very long,” to which Brown noted that if Marshall made that comment while in Ohio, he could be prosecuted for the Syndicalism Statute for advocating violence.
Brown rather modestly described this exchange as “the perfect moment before the Supreme Court in terms of an opportunity presenting itself and the opportunity seized.”
The court returned a unanimous decision that the statute was unconstitutional.
Allen Brown was vilified for his defense of a member of the KKK. He received harassing phone calls and death threats and was accused of being, at best, a KKK sympathizer and at worst a card-carrying member. But Brown let others concern themselves with morality. His business was in defending the constitutional rights of the citizens of Hamilton County, and he felt he had done just that.
The Hamilton County Law Library invites you to stop by the main room of the library to check out Mr. Brown’s endearing collection.
State v. Kidd 167 Ohio St. 521
Supreme Court of Ohio April 30, 1958
Prosecutions involving violations of Sunday law. The Cincinnati Municipal Court, Cleveland Municipal Court and the Hamilton Municipal Court entered judgments of conviction and storekeepers and one clerk appealed. On allowance of motions to require respective Courts of Appeals to certify records, the Supreme Court, Zimmerman, J., held that Sunday closing law, providing that it did not apply to work of necessity or charity and did not extend to persons who conscientiously observe seventh day of week as Sabbath and abstain thereon from doing things prohibited on Sunday, was not unconstitutional on theory it was law for promulgation of religious beliefs.
State v. Mazes 3 Ohio App.2d 90
Court of Appeals of Ohio, First District, Hamilton County April 5, 1965
Defendant was convicted in the Common Pleas Court, Hamilton County, of knowingly possessing obscene book and he appealed. The Court of Appeals, Hover, J., held that whether bookstore operator knew or should have been aware of obscene nature of contents of book was jury question.
City of Cincinnati v Coy 115 Ohio App. 478
Court of Appeals of Ohio, First District, Hamilton County May 21, 1962
Prosecution involving sale of allegedly obscene book. The Cincinnati Municipal Court sustained demurrers and discharged defendant, and the city appealed. The Court of Appeals, Keefe, J., held that ordinance making it a misdemeanor to sell obscene matter, with either actual or constructive knowledge of its contents, proscribed same offense as statute making it a felony to knowingly sell obscene matter, and ordinance was thus unconstitutional as an attempt to make a misdemeanor of a felony.
City of Cincinnati v King 168 N.E.2d 633
Cincinnati Municipal Court, Ohio April 13, 1960
Bookseller was found guilty of violation of antiobscenity ordinance and filed motion for new trial along with motion for dismissal notwithstanding the adverse verdict. The Municipal Court, Keefe, J., held that evidence established that bookseller had not only general but specific knowledge of obscene content of books and magazines in question, and that where book seller is proven to have general knowledge of contents of publications which he stocks, it is not a valid defense that he did not think content obscene if jury, after being provided with proper definition of legal obscenity, finds publications obscene.
State v Ross 12 Ohio St.2d 37
Supreme Court of Ohio November 22, 1967
Defendant was indicted under statute providing that no person shall knowingly have in his possession or under his control an obscene, lewd, or lascivious photograph. The defendant demurred to the indictment. The Court of Common Pleas sustained the demurrer. The Court of Appeals affirmed the order. The State of Ohio came before the Supreme Court pursuant to the allowance of a motion for leave to appeal. The Supreme Court, Paul W. Brown, J., held that since statute providing that no person shall knowingly have in his possession or under his control an obscene, lewd, or lascivious photograph is judicially construed to require that possession of photograph be with guilty intention of using, exhibiting, or selling photograph wrongfully, indictment merely in language of statute was sufficient.
Brandenburg v Ohio 89 S.Ct. 1827
Supreme Court of the United States June 9, 1969
Defendant was convicted of violating the Ohio Criminal Syndicalism Act. The Supreme Court of Ohio dismissed his appeal, and appeal was taken. The United States Supreme Court held that Ohio Criminal Syndicalism Act, which by its own words and as applied, purported to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, and which failed to distinguish mere advocacy from incitement to imminent lawless action, violates First and Fourteenth Amendments.
Kissing, S. (2001, August). Cases of the Century: 1969 Brandenburg v Ohio. Cincinnati Magazine, 14-15. Retrieved from https://books.google.com/books?id=gesCAAAAMBAJ&pg=RA1-PA15&lpg=RA1-PA15&dq=Allen Brown Cincinnati&source=bl&ots=tB-SEGKT2B&sig=8vUVHeJil_bpKSJklh7kukXxTPQ&hl=en&sa=X&ved=0ahUKEwj61Ybj4u_SAhUJ5YMKHa92BY04ChDoAQgwMAQ#v=onepage&q=Allen%20Brown%20Cincinnati&f=false
Holwerk, D. (1972, November). Brown for the Defense. Cincinnati Magazine, 5-9. Retrieved from https://books.google.com/books?id=WOsCAAAAMBAJ&pg=PA7&lpg=PA7&dq=Allen+Brown+Cincinnati&source=bl&ots=E6WtY3eDro&sig=WCw99kKdP-f5HCAzbQdZEUhg_08&hl=en&sa=X&ved=0ahUKEwjRl5yO5O_SAhVH0YMKHbPKAPEQ6AEISDAJ#v=onepage&q=Allen%20Brown%20Cincinnati&f=false
Case synopses courtesy of Thomson Reuters Westlaw.