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Official Blog of The Family Policy Council of West Virginia

Defending Child Pornography

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No, no – not us!  David Ogden, President Obama’s nominee for Deputy Attorney General.  Ed Whelan provides the following commentary at Bench Memos:

Among the many cases in which Deputy Attorney General nominee David Ogden has advocated the interests of the porn industry is a child-pornography case, Knox v. United States, that caused considerable embarrassment to the Clinton administration.  In that case, the Department of Justice under President George H.W. Bush had successfully prosecuted Stephen A. Knox for violating a federal anti-pornography law.  But when Knox sought Supreme Court review of the federal appellate decision upholding his conviction, Clinton’s Solicitor General Drew Days surprised the Court by reversing the government’s position and refusing to defend the conviction.  After the Senate condemned Days’ action by a 100-0 vote and the House did so by a 425-3 vote, Clinton publicly chastised Days and Attorney General Reno eventually overturned his position.

On behalf of the ACLU and other clients, Ogden submitted a Supreme Court brief that advocated the same statutory and constitutional positions that Days has taken.  So the Senate is now being asked to confirm as Deputy Attorney General someone who advocated the same extreme positions on a federal child-pornography statute that the Senate unanimously repudiated 16 years ago.  Is that what President Obama means by change you can believe in?  [emphasis added]

Yes, yes, I can hear the objections that Ogden was merely representing his client.  But that argument is unsatisfactory in two respects.  First, Ogden has extensively represented the porn industry and its interests.  It is an entirely sensible (though certainly not infallible) inference that he is sympathetic to their interests.  Second, as I will discuss in Part 2, a previously undisclosed memo provides evidence that Ogden has long had an ideological agenda in favor of obscenity and pornography and that he has sought to use his position in government to twist the law to advance his agenda.


UPDATE – Ed Whelan continues his commentary on the latest nominee from President Obama.  Part 2:

David Ogden was a law clerk for Justice Harry Blackmun during the Supreme Court’s 1982 Term.  In Blackmun’s Supreme Court papers is a May 3, 1983, memo that Ogden wrote to Blackmun concerning Justice Thurgood Marshall’s draft opinion in Bolger v. Youngs Drug Product Corp.  The legal question in that case was whether a federal statute that prohibited the mailing of unsolicited advertisements for contraceptives could constitutionally be applied to certain mailings.  From Ogden’s memo, it appears that the justices were unanimous at conference (as they were in their final ruling) that the prohibition could not constitutionally be applied to those mailings, but that they differed over the breadth of the rationale.

In his memo to Blackmun, Ogden argues in favor of the proposition that for purposes of the First Amendment “there is no distinction between commercial and noncommercial speech that would render potential offensiveness ‘a sufficient justification for prohibition of commercial speech.’”  I have no interest here in exploring whether or not that proposition is a sound interpretation of the First Amendment.  What is striking is the argument that Ogden advances for why “this is a very important principle”:

[I]t will prevent the ‘morality’-based type of regulation at issue here from being employed to stop the advertisement of a host of products of which the “moral majority” types of their successors-in-interest disapprove.  If they are deprived of the “offensiveness” excuse, they will have to come up with more creative excuses.

In sum, Ogden was using his position as a law clerk to advocate an expansive reading of the First Amendment in order to impair citizens whose legislative objectives he displayed contempt for, and those legislative objectives prominently included a crackdown on porn, including limiting solicitation for porn products.  There’s ample reason to believe that he’s ideologically aligned with the positions of the porn industry that he advanced in Knox and other cases, and, although I wouldn’t want to judge the experienced lawyer that Ogden now is solely by the perhaps immature law clerk that he was, it’s disturbing that he would indulge his political biases at all (much less as vulgarly as he did) in advancing his considered reading of the law.


Written by Jeremy Dys

February 5, 2009 at 4:48 pm

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