Civil Liberties

'Pornography Advocate at DOJ': One of the Bright Spots in the Obama Administration


This column by Janet M. LaRue, general counsel at Concerned Women for America, aims to alarm us about David Ogden, President Obama's choice for deputy attorney general. Instead it makes Ogden sound like a vigorous defender of the First Amendment and one of Obama's best nominees. Here are the particulars of LaRue's indictment:

Opposed the Children's Internet Protection Act, which required federally-funded libraries to utilize Internet filters.

Challenged the Child Protection and Obscenity Enforcement Act of 1988 and the Child Protection Restoration and Penalties Enhancement Act of 1990. Ogden argued that requiring porn producers to personally verify that their models were over age 18 would "burden too heavily and infringe too deeply on the right to produce First Amendment-protected material."

1988: a challenge to Puerto Rico's decision to ban obscene content from cable

1986: sought an order forcing the Library of Congress to use taxpayer funds to print Playboy Magazine's articles in Braille against the express wishes of Congress

1990: sought an injunction against the inclusion of Playboy in a list of adult magazines that would potentially be included in the Meese Commission report

PHE, Inc. & Adam & Eve (1990): represented one of the biggest producers of hard-core videos against a multidistrict prosecution strategy by the DOJ.

Amicus (friend-of-the court) briefs in support of obscenity and child porn cases:
Fort Wayne Books Inc. v. Indiana (1989) (on behalf of PHE against charging federal RICO laws in a state obscenity case).

Virginia v. American Booksellers Association (1988) (on behalf of Freedom to Read Foundation against a "Harmful to Minors" law)

Pope v. Illinois (1987): (on behalf of the ACLU and PHE Inc. in an obscenity case).

Knox v. U.S. (1993) videos titled, "Little Girl Bottoms (Underside)" and "Little Blondes": Ogden argued that the videos weren't child porn unless "the genitals or pubic area exhibited" were "somewhat visible or discernible through the child's clothing."

These all seem to me like marks in Ogden's favor, even that last case. I assume he was arguing for an objective definition of child pornography, as opposed to one that can transform harmless, unobjectionable images into proscribable material based on the thoughts of the people viewing them. 

At his confirmation hearing last week, Ogden distinguished between his role as an advocate for clients such as Playboy and his role as a Justice Department official, saying he would not hesitate to enforce laws that have been upheld by the courts even if he had challenged their constitutionality as a lawyer. He acknowledged the legitimacy of laws aimed at pornography involving minors and apologized for mocking social conservatives in a memo he wrote as a clerk for Supreme Court Justice Harry Blackmun. But he did not repudiate his opposition to policies that impinge on the First Amendment rights of adults in the name of protecting children.

Last fall I considered the pornography record of Ogden's new boss, Eric Holder. In the February issue of Reason, I drew parallels between obscenity and drug paraphernalia prosecutions and predicted that neither would be a big priority in the Obama administration.