In Defense Of David Ogden

Posted by | February 5, 2009 16:05 | Filed under: Top Stories

The conservative bogeyman of the day is the Obama choice for Deputy Attorney General, David Ogden, for the egregious offense of being “pro-abortion” and “pro-homosexual.” Let’s put aside for the moment that no one is “pro-abortion,” with the possible exception of the Chinese government, and that the position is more accurately expressed as “pro-choice.”   And let’s put aside the inanity that somehow being “pro-homosexual” is a bad thing, as if hating gays would somehow be a defensible position.

Ogden, whose hearings are taking place today on the Hill, has represented companies like Playboy and Adam & Eve, has headed Justice’s civil division and managed the office of former Attorney General Janet Reno.  But his clients seem to upset the far right to an extent that they are engineering a full-court press against him.  Among his activities and clients:

* Playboy Enterprises, in a challenge to Puerto Rico’s decision to ban obscene content from cable. The court ruled that the federal Cable Communications Policy Act of 1984 preempts Puerto Rico’s statue allowing prosecution for broadcasting obscene content. Playboy vs. Public Service Commission, 698 F. Supp. 401 (D.P.R. 1988) and 906 F.2d 25 (1st Cir. 1990). In another case, Playboy Enterprises was seeking 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. American Council for the Blind vs. Boorstin, 644 F.Supp. 811 (1986). He also represented the company seeking an injunction against the inclusion of Playboy in a list of adult magazines that would potentially be included in the Meese Commission report. Playboy Enterprises Inc. vs. Meese, 746 F.Supp. 154 (D.D.C. 1990).


* Adam & Eve, where Ogden represented the company over a multidistrict prosecution strategy by the Justice Department. PHE Inc. vs. U.S., 743 F.Supp. 15 (D.D.C. 1990) and U.S. vs. PHE Inc., 965 F.2d 848 (10th Cir. 1992).


Ogden also has filed numerous amicus briefs in obscenity cases before the U.S. Supreme Court , including Knox vs. U.S., 510 U.S. 375 (1993) (on behalf of the ACLU and others); Fort Wayne Books Inc. vs. Indiana, 489 U.S. 46 (1989) (on behalf of PHE). Virginia vs. American Booksellers Association, 484 U.S. 383 (1988) (on behalf of the Freedom to Read Foundation); Pope vs. Illinois, 481 U.S. 497 (1987) (on behalf of the ACLU and PHE Inc.).


Despite the fact that Ogden has represented many so-called “respectable” industries, such as petrochemicals, insurance, defense, airlines, and media, detractors such as Brian Burch of Fidelis, a Catholic advocacy group, calls his record “nothing short of obscene.”  Burch is beside himself because of Ogden’s defense of entities such as Playboy, Penthouse, and that right-wing pinata, the ACLU.  And groups such as the “Family Research Council” and “Morality in Media” are busy attacking him because he has supported Oregon’s “Death with Dignity” law and has argued that sexual orientation “does not affect a person’s ability to contribute to society,”  and that “discrimination” against homosexuals is “substantially based on erroneous stereotypes.” He also had the audacity, according to these critics, to argue that homosexuality is “a normal form of human sexuality.”  How dare he!

If you believe the right wing, Ogden opposed the Children’s Internet Protection Act (CIPA) in the case United States v.  American Library Association because he wants to expose kids to online porn.  But if you look at his actual arguments, the issue was that installing content filters would have prevented access to legal material by a wide range of Americans, not just children, and federal funds would have been denied to institutions that didn’t comply, which would have had a deleterious affect, especially in disadvantaged communities.

Funding sources include the e-rate program, the Library Services and Technology Act, and the Technology Title, Title III, of the Elementary and Secondary Education Act. All three programs help ensure schools and libraries provide access to the resources communities need to thrive in the information age. CIPA runs counter to these federal efforts to close the digital divide for all Americans.


No filtering software successfully differentiates constitutionally protected speech from illegal speech on the Internet. Even the federal commission appointed to study child safety on the Internet concluded filters are not effective in blocking all content that some may find objectionable, but they do block much useful and constitutionally protected information.

Although this law was challenged successfully in the Court of Appeals for the Eastern District of Pennsylvania, SCOTUS upheld that funds could be denied to institutions that didn’t comply. The Supreme Court did say that CIPA would remain constitutional only “if, as the Government represents, a librarian will unblock filtered material or disable the Internet software filter without significant delay on an adult user’s request.”

Conservatives are also after Ogden for his opposition to the Child Protection and Obscenity Enforcement Act, which would require that producers and distributors of certain sexually explicit films keep detailed records of names and ages of models, actors, and actresses, and allow government inspection on demand.  It’s not clear who would determine and how it would be determined just what “sexually explicit” would mean.  The Sixth Circuit Court of Appeals in Cincinnati ruled in 2007 that this was a violation of the First Amendment because it would “chill” constitutionally protected speech.  Anyone making a film deemed “sexually explicit” would be identified as a “producer.”

“To appreciate why speech would be chilled, consider the following,” Judge Cornelia Kennedy wrote in the majority opinion. “A couple wishes to take photographs of themselves engaging in sexual activity. To do so means compiling records, affixing statements, maintaining such records for at least five years and opening their property up for visitation by government officials to inspect the records.”

Law professor Marc John Randazza explains just how burdonsome this law would be, partularly the 2257 regulations, creatively named after its identification number in US Code.

Once the producer creates these records, indexes them, and cross-references them, that isn’t the end of the line. The producer must then list a “2257 statement,” listing the date of production, and an address where the records may be inspected during regular business hours – and those hours must be at least 20 hours per week. 18 U.S.C. § 2257(e) (2006); 28 C.F.R. § 75.6(a), (b). There are more technical requirements as well, including that the statement must be in 12 point font, printed in a color that contrasts with the background, and must be prominently displayed. 28 C.F.R. § 75.6(e) (2006).


The Attorney General, or any designated agent may now come knock on the producer’s door for a “2257 inspection.” By law, they are not allowed to give any advance notice. No warrant. No probable cause. No reasonable suspicion. Once every four months, for no reason at all, FBI agents get to show up at the producer’s door for an inspection – and they can come more often if there is a reasonable suspicion that a violation has occurred. 18 U.S.C. § 2257(c) (2006); 28 C.F.R. § 75.5(b), (c), (d) (2006).


If you blow the requirements – five years in jail. That’s not for having underage performers, mind you. If your paperwork is not in order you are staring down the barrel of a five year jail sentence.

It’s too easy to accuse someone of being “pro abortion” because that person supports women making their own reproductive choices.   It’s similarly simple-minded to accuse a person of not wanting to protect us from child porn because he or she sees the greater negative affect a particular law can have on society.  Conservatives claim to love the Constitution and “freedom”.  But freedom isn’t a one-way street; and the Constitution isn’t an ideological document owned by the right.  David Ogden loves the law, loves his country, loves the Constitution.  He didn’t get where he is today by ignoring it.

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Copyright 2009 Liberaland
By: Alan

Alan Colmes is the publisher of Liberaland.

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