WASHINGTON, D.C. - Although they were allowed substantial time for questioning at his confirmation hearing on Feb. 5, the Republicans on the Senate Judiciary Committee still weren't satisfied that Deputy Attorney General candidate David Ogden wouldn't gut the maze of adult industry regulation that social conservatives had spend the better part of 20 years enacting into law - so they had him respond to a few more questions in writing, and some of Ogden's answers, if they represent his true feelings, are troubling.
For instance, Kentucky Sen. Charles Grassley at the outset of his questions declared that, "I think everyone would agree that protecting children and families from obscenity is a worthwhile objective. Do you concur that the Justice Department must continue to aggressively pursue criminal and civil litigation against those who violate federal obscenity laws?" Ogden agreed with both contentions, and even committed to "recommend[ing] that protecting children and families should be a top priority, including through the prosecution of those who violate federal obscenity laws."
However, when Grassley asked if Ogden "support[ed] the ongoing efforts of the Obscenity Prosecution Task Force" and "plan[ned] to recommend disbanding" it, Ogden's response was somewhat more in keeping with the First Amendment.
"I support making efficient and effective use of the Department's resources to prosecute the crimes that threaten children and families," he wrote. "I am not specifically familiar with the work of the Obscenity Prosecution Task Force. If I am confirmed, I will confer with career professionals in the Department's relevant components, including the Criminal Division and its Child Exploitation and Obscenity Section, with state and local law enforcement, and with child advocacy organizations such as the National Center for Missing and Exploited Children, to ensure that the Department takes appropriate steps to protect children and families," adding in response to a later question, "I am not currently aware of shortcomings in the federal laws prohibiting obscenity, child pornography, and child exploitation."
Almost needless to say, considering how much press the issue has gotten in the Religious Right press, Ogden was sure to be asked to explain his position in the 1993 child porn case, Knox v. United States, where Ogden had filed an amicus brief on behalf of the ACLU, the American Library Assn. and the American Booksellers Assn.
In particular, Sen. Arlen Specter (R-Pa.) wanted to delve further into Ogden's answer to Utah Sen. Orrin Hatch, where Ogden distanced himself from the views of his then-clients, who had argued that the "child porn" videotapes that Knox was convicted of possessing contained images of kids who were clothed and not engaged in any sort of sexual activity, but that focused on their lightly-clothed genital areas. In fact, the then-Solicitor General Drew S. Days III had essentially adopted that same position when the case reached the Supreme Court, and it was only by an act of Congress that Days was forced to recant and deem the videos unprotected.
In answer to Specter's questions, however, Ogden noted that his clients' argument was for a stricter standard than Days', in that Days had argued that the children depicted would have to be "lasciviously engaging in sexual conduct" for the law to apply, which to Ogden's clients meant that a loophole would have been created allowing material of a sexually explicit nature that featured "minors who did not have a lascivious intent." Ogden also favored a "bright line standard" for underage nudity written into the law which would have made it easier for his clients to determine which material would be prohibited and which wouldn't.
Finally, when Specter asked, "Do you agree that if the Court had adopted the standard for which you advocated in your brief that fewer videos and other materials would qualify as pornography under the federal child pornography laws?", Ogden stated that the standard he had advocated for his clients "would have made it easier for the government to obtain convictions in most cases than the standard for which the government advocated."
Sen Hatch himself asked questions similar to Specter's and Grassley's, and received similar answers.
In response to questions from Sen. Jeff Sessions (R-Ala.), Ogden promised to enforce the Child Internet Protection Act (CIPA), which allows for public libraries and other public Internet access points to lose federal money if they do not install filtering devices. Sessions then quoted from Justice Anthony Kennedy's majority opinion in Lawrence v. Texas to the effect that the high court's "obligation is to define the liberty of all, not to mandate our own moral code," and asked if Ogden thought, as Kennedy implied, that "legislation based on moral foundation cannot provide a rational basis to support a law or government action?"
"No," Ogden responded. "I believe that legislation based on a moral foundation can, and typically does, have a rational basis that renders it constitutional."
Sen. John Kyl of Arizona, after a long preamble that included the presumption that, "When a lawyer has litigated in favor of a particular viewpoint for many years, one may reasonably suppose that the lawyer is at least sympathetic to that point of view," finally asked just one question: "Is there anything that you can cite in your past - any litigation that you have undertaken, other work that you have been involved in, or a speech that you have given or an article that you have written - that demonstrates a commitment to fighting child pornography or otherwise protecting children from sexual abuse?"
"I am strongly committed to fighting child pornography and protecting children from abuse," Ogden replied. "There is much in my professional record that demonstrates my commitment... My previous government service demonstrates that I will enforce and defend federal law vigorously, irrespective of positions I may have taken on behalf of clients in private practice," noting, for instance, that even though he'd argued against the military's "Don't Ask, Don't Tell" policy, he had nonetheless received the Department of Defense Medal for Distinguished Public Service, "the highest award the Department of Defense can bestow on a civilian."
Noting that he had received a letter of support from the National Center for Missing and Exploited Children, Ogden wrote, "In addition, I vigorously defended the constitutionality of child pornography statutes during my tenure as Assistant Attorney General for the Civil Division. I led the constitutional defense of the Child Pornography Prevention Act of 1996 (CPPA), which expanded the ban on child pornography to cover virtual child pornography - sexually explicit images that appear to depict minors but were produced without using any real children, often using computer-generated imagery."
That aspect of the CPPA, of course, was overturned by the Supreme Court in Ashcroft v. Free Speech Coalition, so it's somewhat surprising that Ogden cited it.
"I also defended the Child Online Protection Act of 1998 (COPA)," he continued, "which aimed to protect children from harmful material on the Internet by requiring purveyors of prurient materials on the Internet to restrict their sites from access by minors" - another law that eventually was ruled unconstitutional.
By far, the longest set of questions was asked by Sen. Tom Coburn of Oklahoma, and one of his topics was labeled, "Obscenity and the First Amendment." He asked Ogden whether he would enforce CIPA or make changes it how it is enforced, and also whether Ogden supported the two laws that underlie the federal recordkeeping and labeling statute, 18 U.S.C. §2257?
"If confirmed, I will support enforcement of these three statutes," Ogden replied, even though he had represented several media clients in the seminal anti-2257 lawsuit, American Library Assn. v. Thornburgh. "I am not familiar with the way they are presently enforced, and have no plans to recommend changes in that regard.
"If an actual conflict or an issue conflict arises with respect to your duties to enforce the laws and positions you have taken in prior litigation, do you pledge to recuse yourself and designate-where possible-an appropriate Criminal Division attorney in your stead?" Coburn followed up.
"If a conflict arises, I will consult with Department of Justice ethics officers to determine whether my recusal is required," Ogden replied. "In the unlikely event that my recusal is necessary, I will ensure that an appropriate Department official is assigned to oversee that particular matter so that the Department's efforts are not adversely affected."
Obviously drawing heavily on Family Research Council's "Change Watch Backgrounder" on Ogden, Coburn noted that Ogden had supported the right of 14-year-old girls to obtain abortions without parental notification (in Hartigan v. Zbaraz), and that he had convinced the Supreme Court to declare the death penalty unconstitutional as applied to juveniles (in Roper v. Simmons, where his client was a 17-year-old murderer).
Asked Coburn snidely, "Which argument do you apply to juveniles that may be solicited by pornography producers to participate in their publications?"
"As noted above, my briefs in Hartigan and Roper were filed on behalf of different clients 17 years apart, and did not in any event represent my personal views," Ogden replied. "With regard to pornography producers who solicit juveniles to participate in their publications, the law is clear: such conduct is a serious federal crime, and rightly so."
Of course, the Republican senators asked questions in several other areas such as abortion, same-sex marriage, gun control, the treatment of federal whistleblowers, the fairness Doctrine, executive power, congressional oversight and constitutional interpretation, but of the seven questioners, only one - Texas Sen. John Cornyn - didn't ask about obscenity or child porn.
And while many of Ogden's answers may have seemed equivocal regarding sexual speech rights, the consensus among First Amendment attorneys who represent the adult industry is that Ogden will treat the industry fairly and is unlikely to be an anti-adult activist.
Ogden is expected to be confirmed to the position of Deputy Attorney General within the next week.
(h/t to Brian of JPL for all the help!)