Who is Allen Brown?
Allen Brown was the ACLU advocate for Clarence Brandenburg in the SCOTUS case, Brandenburg v. Ohio in 1969. Unfortunately, there’s not too much written about Brown. Bill and I think this is a real shame because he gave one of the most memorable oral arguments in the Brandenburg case. Back when we first started listening to SCOTUS arguments for fun, this one stood out. So, I wanted to take some time to learn a little more about Attorney Brown.
Brown, a through-and-through Cincinnatian, graduated from the University of Cincinnati in 1947. During the early years of his legal career, he became the spokesman for the local Small Businessman’s Association which would change the trajectory of his practice. He agreed to defend a local businessman who had been charged with violating Ohio’s law against Sunday commerce (staying open on a Sunday). The law was eventually found to be unconstitutional and the case gained some notoriety for Brown in the community. Another member of the Small Businessman’s Association approached Brown about charges of “selling obscene materials.” This started the ball rolling on Brown defending constitutional claims, specifically of free speech. Though, these cases did land him with a reputation as the “porno lawyer.”
In 1964, members of the Ku Klux Klan held a rally outside of Cincinnati and invited the local TV channel to cover it. During the broadcast, one of the Klansmen, Clarence Brandenburg, threatened violence if the government continued to “suppress the White, Caucasian race.” Brandenburg was arrested under the Ohio Criminal Syndicalism Statute, which made advocating violence as a means of social or political change a crime. He was convicted and sentenced to 1-10 years in prison. The ACLU accepted Brandenburg’s case and Allen Brown volunteered to represent the anti-Semitic Klansman, even though Brown was Jewish. Brown argued 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.”
The Supreme Court agreed in a per curium opinion. At the end of the oral argument, Chief Justice Warren told Brown:
“Mr. Brown, before we conclude I just like to say to you that the Court appreciates your acceptance of our assignment to represent this indigent defendant. We consider that a real public service and I’m grateful for your efforts.”
Brown responded: “I should perhaps state for sake of the record that counsel for the appellant in no way agrees with any of the appellant’s positions. I will however take the Voltarian position in relation to the appellant.”
This exchange, specifically, is what stood out to me when I first listened to this argument. As an attorney, you will likely have several clients who you do not particularly relate to... or even like. But attorneys didn't sign up to make friends; they signed up to make sure that the rule of law is properly applied. Sometimes, that means defending an indefensible person if - in the end - it will ensure the protection of others in the future. Brown understood the significance of protecting a Klan member's right to free speech, even if that speech was specifically and particularly targeted at people like himself. That's the job. It's not for everyone. But wow; our current perception of "free speech" would be a lot different today if not for advocates like Allen Brown.
P.S. For those of you who don't know (because I didn't): François-Marie Arouet, known under the pen name “Voltaire”, is a famous French Enlightenment writer, historian and philosopher known for his advocacy of free speech.
Another quick fun fact: Allen Brown collected legal-themed statues! Some were serious, like a bust of President Abraham Lincoln, and some were silly like a bear dressed as a judge with a “court order” of a BLT. They were donated to the Hamilton County Law Library in Cincinnati, Ohio in 2017.
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