David Ogden and the New Pornographers: Why the Senate Should Reject His Nomination

David Ogden graduated from Harvard Law School, clerked for Supreme Court Justice Harry Blackmun, and worked in the Justice Department under President Bill Clinton. He brings to his Senate confirmation hearings a long résumé that shows him to be an effective and savvy advocate. Nonetheless, the Senate should decline to confirm as Deputy Attorney General a man who has a long history of representing the pornography industry and opposing laws designed to protect children from sexual exploitation.

Ogden has argued that a law designed to protect children from molestation and rape at the hands of child pornographers would “burden too heavily and infringe too deeply on the right to produce First Amendment protected material.” The law Ogden opposed reasonably asks that those who wish to profit by selling explicit content keep documents verifying that their models are of legal consenting age.

Even those who think that adults have a right to obtain and use pornographic material should recognize that David Ogden’s advocacy for the pornography industry goes much further. His position would allow the purveyors of exploitative images to hide their abuse behind a vanishing paper trail. There is some irony in the fact that while our country employs thousands of inspectors to ensure that meat and poultry are safe, David Ogden opposed even basic steps to ensure that the images consumed by pornography users are not of children. While David Ogden’s stated concern was protecting “free speech”—in his confirmation hearing he said that he is opposed to the exploitation of minors, and presumably he is sincere—it is hard to see any justification for a position that has the effect of abetting abuse.

In addition to making it harder to prosecute those who sell images of child molestation and rape, Ogden has sought to ensure that pornography can be easily distributed and readily accessed in almost any medium or location. He has fought cases in Puerto Rico to allow Playboy to broadcast explicit programming on TV. He represented Philip Harvey, a man who runs the nation’s largest mail-order pornography shop out of North Carolina, in his attempt to deflect a Department of Justice investigation of his business. Completing a sort of multi-media grand slam, Ogden has sued to allow sexually-explicit content to be transmitted over the phone. Taking this quest to its absurd limits, he has even claimed in court that there is a constitutional right for pornography to be kept in firehouses. Ogden’s position is good for the industry groups he has represented but bad for female firefighters who could be subjected to humiliating and harassing images in the workplace. With an equal disregard for the comfort and protection of children, in 2000 Ogden sued to allow pornography to be accessed in public libraries.

If confirmed to be Deputy Attorney General, Ogden will be responsible for prosecuting the same clients he once represented. His long history in government and private practice suggests he will not have the objectivity to do so fairly. While clerking for Justice Harry Blackmun at the beginning of his career, Ogden wrote a memo that heaped scorn on opponents of public obscenity. Speaking of the distinction between commercial and non-commercial material that may be offensive, he said:

It 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 or their successors-in-interest disapprove. If they are deprived of the “offensiveness” excuse, they will have to come up with more creative excuses.

Ed Whelan, president of the Ethics and Public Policy Center, himself a former Supreme Court clerk and government lawyer, called this a “disturbing” indulgence of “political biases.” Considering Ogden’s long affiliation with the pornography industry, it is hard to imagine how his belief in the right to unfettered access to pornography will not interfere with the Justice Department’s responsibility to protect children from obscene material and exploitation.

Pornography should not be regarded as immune from regulation because it is “free speech.” A mounting body of evidence shows that the social costs of pornography can extend to all areas of society, from creating a less productive and more harassing workplace to weakening marriages. Pornography’s effects, as discussed in papers submitted at a recent conference by the Witherspoon Institute, can be far-reaching and are measurable through economic, sociological, and psychological study. The philosopher Roger Scruton and the political theorist Jim Stoner have recently summarized some of these findings.

If there is any doubt that Ogden’s beliefs lie outside the mainstream of those of the Senate and the American people, one can look back to one particularly telling case. In Knox v. United States, President Clinton’s appointee for Solicitor General shocked the country and embarrassed the president after he declined to defend the conviction of a child pornographer. Ogden took the opportunity to file a brief in defense of the child pornographer, but the Senate reacted to the soft-on-porn stance advocated by Ogden by voting 100-0 against the actions of the Solicitor General. During his confirmation hearings this week, Ogden claimed that he had reversed many of his stands on child pornography and that he could not remember whether or not he had been paid by the clients he represented. Ogden’s past actions and “confirmation conversion” raise the question of why President Barack Obama could not find a qualified, liberal lawyer who had not argued in favor of child pornographers. People of all political persuasions who oppose child exploitation should pressure the Senate to reject David Ogden’s harmful views once again.

Matthew Schmitz is the Managing Editor of Public Discourse.