WASHINGTON, D.C. - If you thought the attacks on Attorney General nominee Eric Holder were fierce, you ain't seen nothin' like the God-wrath visited upon David Ogden, President Obama's choice to fill what was Paul McNulty's job under Alberto Gonzales.
McNulty and Kyle Sampson, Gonzales' Chief of Staff, were instrumental in the firings of nine U.S. Attorneys. At least two of those attorneys got the shaft, and another was likely forced out of her job, because of their lack of interest in mounting anti-porn cases for Obscenity Prosecution Task Force czar Brent Ward, a former U.S. Attorney for the District of Utah.
Ogden was part of the defense team that helped scuttle the Justice Department's last attempt to prosecute Adam & Eve for mailing obscene materials to Utah. It's no surprise that Ward's supporters are up in arms against him.
Ogden's representation of Adam & Eve is just a small part of his dedication to the First Amendment. He has also represented Playboy and Penthouse, among others.
"David Ogden is a hired gun from Playboy and ACLU," charged Brian Burch, president of Fidelis, a consortium of conservative Catholic groups. "He can't run from his long record of opposing common sense laws protecting families, women, and children. The United States Senate has a responsibility to the American people to insure that Mr. Ogden's full record is fully reviewed before any vote on his nomination."
Within the past few days, nearly every conservative and religious censorship group and spokesperson has added his/her own charges to the mix.
"Why did [Obama] tap the publicly venal Ogden to head his U.S. Justice Department transition team?" asked Meese Commission "researcher" Dr. Judith Reisman. "Ogden must hire lawyers with fealty to the Big Porno conglomerate ... Harvard lawyer President O would never expect justice for blacks from lawyers whose income derived from wealthy Klansmen - nor could he expect justice for women and children from lawyers whose income is derived from wealthy pornographers. No Ogden team lawyer has ever defended a single woman, man or child alleging victimization by Big Porno."
"The one thing Barack Obama's nominees to the Department of Justice seem to have in common is a disrespect for human life," said Wendy Wright, president of Concerned Women for America.
"He's everything the pro-family movement has fought against," claimed former DOJ prosecutor Patrick Trueman, now of Alliance Defense Fund. "Yet as deputy attorney general, he will be the chief executive officer of the U.S. Department of Justice. Certainly, he reflects President Obama on Obama's positions on pornography, homosexuality and abortion. We can see this from the nomination. And I believe David Ogden is being groomed for a position on the United States Supreme Court, with this appointment to a high office... He will use his office of legal counsel, which interprets the law, to change the law... He would, of course, be in charge of whether or not the Department of Justice enforces the laws against pornography; and we've seen both on adult pornography and on child pornography, he is not with us."
"Our research uncovered a lot of troubling details about Ogden - not the least of which is his long history of extreme anti-family views," said Tony Perkins, president of Family Research Council. "On the issue of life, he has fought for taxpayer funding of abortion, for jailing peaceful protestors, against notifying parents whose minor children are seeking abortions, and against informing women of the emotional risks of abortion. He's been an outspoken proponent of specials rights for homosexuals, the repeal of 'Don't Ask, Don't Tell,' and unfettered access to pornography - even in public libraries."
So what did Ogden actually do in the situations cited by Perkins?
For one thing, he represented People for the American Way, the National Education Association and others in the landmark case Rust v. Sullivan, filing a brief supporting the Petitioner's position that the government could not properly prohibit government funds from being used by family planning agencies to counsel, advise or promote to clients that abortion was a viable method of family planning. The Supreme Court, however, ruled for the Respondent - who in this case was represented by the man who would later become Chief Justice, John Roberts.
However, while most think of Rust as a loss for reproductive freedom, Adam & Eve founder Phil Harvey holds a more nuanced view.
"That decision, which is generally a good one, is often thought of as a bad one because everybody misreads it," Harvey told AVN. "That decision made quite clear that Planned Parenthood was able to and was entitled to say whatever it wanted and do whatever it wanted on the subject of abortion as long as it did not use any federal funds to do so. However, the underlying principle that a government grant recipient may not be de-funded because of what they do with their own funds apart from the federal funding was upheld. But because the decision on its face was negative, it tends to be read, I think, much more negatively than it should be."
More recently, Ogden co-authored the respondents' brief for the National Organization of Women (NOW) during the Supreme Court case involving Joseph Scheidler and others, who had been convicted of RICO violations for having participated in 21 acts of extortion for using threats and violence to shut down women's clinics that performed abortions. The Roberts-dominated Supreme Court threw out Scheidler's conviction.
In 1987, Ogden co-authored an amicus brief for the American Psychological Association (APA), which argued that forcing adolescent girls to notify their parents when they planned to get abortions was an unconstitutional burden on the girls. The case was Hartigan v. Zbaraz, and the Supreme Court found the notification requirement to be unconstitutional.
In the case of Planned Parenthood v. Casey, Ogden wrote: "Abortion rarely causes or exacerbates psychological or emotional problems. When women do experience regret, depression, or guilt, such feelings are mild and diminish rapidly without adversely affecting general functioning... [I]t is grossly misleading to tell a woman that abortion imposes possible detrimental psychological effects when the risks are negligible in most cases, when the evidence shows that she is more likely to experience feelings of relief and happiness."
Ogden's position was recently borne out by the results of a 'meta-study' conducted by a team at Johns Hopkins University. Reviewing 21 studies involving more than 150,000 women, the Johns Hopkins team found no significant differences in long-term mental health between women who choose to abort a pregnancy and others.
Ogden represented the American Psychiatric Association and the National Association of Social Workers in an amicus brief filed for the plaintiff in the famous case of Lawrence v. Texas, which dealt with state anti-sodomy laws.
"Although a shift in public opinion concerning homosexuality occurred in the 1990s, hostility towards gay men and lesbians remains common in contemporary American society," Ogden wrote. "Prejudice against bisexuals appears to exist at comparable levels. Discrimination against gay people in employment and housing also appears to remain widespread. The severity of this anti-gay prejudice is reflected in the consistently high rate of anti-gay harassment and violence in American society."
Ogden also filed an amicus for the APA in the case of Watkins v. United States Army, arguing that "prejudice against lesbians and gay men in the Army is likely to be reduced by encouraging contact between homosexuals and heterosexuals." Ogden argued that there was "no rational basis for the Army's exclusion of gay people."
Ogden has a long track record in supporting free sexual speech. He represented several groups at the appeals court level in a challenge to the Child Protection and Obscenity Enforcement Act of 1988 - the legislation which created the 2257 record-keeping regulations.
As an associate at the D.C. law firm of Jenner & Block, Ogden famously assisted P.H.E./Adam & Eve attorney Bruce Ennis in thwarting the Justice Department's multi-jurisdiction prosecution strategy.
At the time of Ogden's involvement with Adam & Eve, the Justice Department had already forced seven adult mail-order companies out of business by simultaneously prosecuting them in numerous far-flung jurisdictions. These government prosecutions were designed to bankrupt porn companies through the cost of legal fees. Only Adam & Eve stood its ground, and in the case of P.H.E., Inc., v. United States Department of Justice, forced the Justice Department to abandon that strategy.
Ogden was also instrumental in obtaining federal funds for use in translating articles in Playboy and other adult publications into Braille so they could be read by the blind. Later, he succeeded in removing Playboy from a list of magazines branded as "pornographic" by the Meese Commission.
Also for Adam & Eve, Ogden filed an amicus in Ft. Wayne Books v. Indiana, a case which established the principle that pre-trial seizure of the entire contents of a business when only some of its items were charged as obscene was unlawful. He filed a similar brief in the Ferris Alexander case, which attorney Clyde DeWitt described as "outstanding."
On behalf of P.H.E. and the American Civil Liberties Union in Pope v. Illinois, Ogden helped establish the principle that "community standards" played no part in a jury's determination whether an allegedly obscene work has literary, artistic, political or scientific value; that such value is independent of whatever "the community" may think of the work.
Ogden also played a part in Virginia v. American Booksellers Association, which involved a Virginia statute that criminalized the commercial display of certain visual or written sexual or sadomasochistic material that is harmful to juveniles. The Supreme Court remanded the case to the Virginia Supreme Court for a limiting construction of the statute.
Ogden was also involved, at the appeals court level, in the fight against the Children's Internet Protection Act, which forced public libraries to put filtering software on their computers to censor adult material and other material considered harmful to minors in order to continue receiving federal funds. The Supreme Court, in the case of U.S. v. American Library Association, upheld the Act.
In what may have been his most controversial position, Ogden filed an amicus on behalf of the American Booksellers Foundation for Free Expression and others in the case of "child pornographer" Stephen Knox, whose conviction revolved around the question of "whether videotapes that focus on the genitalia and pubic area of minor females constitute a 'lascivious exhibition of the genitals or pubic area' under the federal child pornography laws ... even though these body parts are covered by clothing." Part of the controversy was the fact that Drew S. Days, the Solicitor General during the Clinton administration, refused to support the government's position that videotaping the clothed genital areas of children should be illegal - essentially agreeing with Ogden's position. However, after Congress voted to censure Days, Attorney General Janet Reno found another attorney to argue the case to the Supreme Court. Eventually, the Third Circuit, on remand, affirmed Knox's conviction.
Lest anyone mistake Ogden's views on child porn, he testified yesterday before the Senate Judiciary Committee: "Child pornography is abhorrent... Issues of children and families have always been of great importance to me."
As for non-sexual issues, Ogden has an equally impressive track record. In Roper v. Simmons, Ogden argued successfully before the Supreme Court that applying the death penalty to juveniles was unconstitutional, and came under fire from conservative groups at that time for suggesting that the high court look to the fact that all but two United Nations members, as signatories to the U.N. Convention on the Rights of the Child, had already abolished that punishment.
In fact, there's hardly any position Ogden holds that passes muster with conservatives. Ed Whelan of National Review Online has "unearthed" a memo which Ogden, then a law clerk to Supreme Court Justice Harry Blackmun, wrote to his boss concerning the constitutionality of a federal law prohibiting the unsolicited mailing of advertisements for contraceptives.
Eventually, the high court held that such a prohibition was unconstitutional (Bolger v. Youngs Drug Product Corp.), but in his memo, Ogden argued to Blackmun that, as far as the First Amendment is concerned, "there is no distinction between commercial and noncommercial speech that would render potential offensiveness 'a sufficient justification for prohibition of commercial speech.'"
According to Whelan, however, Ogden sought to push that principle much too far, quoting from Ogden's memo to the effect that, "[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."
"Ogden was using his position as a law clerk," Whelan charged, "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," though Whelan admitted that Ogden's views may have changed somewhat over the 26 years since that memo was written.
Several attorneys who represent the adult industry have praised Ogden's work, as has one of his frequent clients, Phil Harvey.
"I got to know him somewhat at that time [of our Utah case], and subsequently," Harvey said. "He is a superb lawyer and he is a good soldier. I mean, if the AG tells him to go out and pursue an obscenity case, he will do it. But he is psychologically and emotionally a strong supporter of free speech, so he certainly isn't going to be pushing, himself, for these cases, with the possibility of really extreme material, or of course anything involving children... I think[his nomination is] a signal that this Justice Department is not going to be loading up on adult obscenity cases, and that the President doesn't expect them to."
"The people I've talked to feel that Eric Holder has had many opportunities to go after obscenity and related cases in the past and hasn't often done it," Harvey continued. "As for David, I think he's just an all-around good guy, and I think his being there will serve the country well irrespective of what happens in our industry."