Second Thoughts on Second in Command

by Cate Pilgrim

This week President Obama nominated David W. Ogden to be the Deputy Attorney General in the Department of Justice, much to the delight of Playboy, Adam & Eve, and other adult entertainment companies, but maybe not to the rest of the Democratic Party.

You see, back in the Clinton Administration, Ogden defended the rights and interests of the pornography industry before the Supreme Court, with the support of Attorney General Janet Reno but not of President Clinton. It produced what was at the time a very embarrassing set of moments for the Clinton Administration, including a reprimand of Reno and a backlash from conservatives.

The case involved Stephen Knox, a man clearly convicted of federal child pornography offenses. The Knox brief, written by Ogden, stated that the First Amendment protected an individual’s right to pornography, and that it was unconstitutional to label certain material “offensive” through “subjective test of lasciviousness.” Attorney General Reno supported Ogden’s position, stating that the Third Circuit erred by ruling that “simply focusing on the midsection of a clothed body may constitute an exhibition of the unrevealed body parts beneath the garments.” The United States was prosecuting Knox based exclusively on his three video tapes depicting numerous 11 to 17 year old girls engaged in sexually explicit conduct (in violation of 18 U.S.C. § 2252).

In November, 1993, when Clinton was informed of his own Attorney General’s stance on the child-pornography issue, he reprimanded her via a letter as reported by the NY Times. Clinton said he was not satisfied with the department’s approach, and said “I find all forms of child pornography offensive and harmful, as I know you do, and I want the Federal Government to lead aggressively in the attack against the scourge of child pornography.” Concerning the Knox case, over 230 Congressmen voted to deny it review, and Reno subsequently replaced her brief with one suggesting the court deny the case review.

Both Democrats and Conservatives demanded investigation into the proceedings. David E. Smith, who was at the time of the Knox case was representing the American Family Association, remembers holding several press interviews a day. Smith instructed skeptical reporters to view the videos Knox had made of the children, and said the ones who did unanimously agreed it was child pornography.

Is Ogden as DAG, a politician who has never since the Knox case altered his position on child pornography, consistent with President Obama’s platform of “Hope” and “Change?” During his U.S. Senate days, President Obama co-sponsored the “Combating Child Exploitation Act of 2007.” Also, while on the ’08 Campaign trail, then-candidate Obama told America (Saddleback Presidential Forum, 08/16/08)he would make ending human trafficking “a top priority” of his administration; additionally, he said (“The Candidates on Faith,” Time, 08/07/08)that there are a “range of moral-values issues that must be addressed in our families, our communities...But we can't just talk about ‘family values.’ We actually have to stand up for policies that value families.” Does Obama know that Ogden's past clients have included the company PHE, Inc., the largest distributor of hard-core porn videos in the U.S., which has distributed DVDs with titles that include terms such as "School girls," "Bubblegum cuties," "Sweet young things," "Young Girls," and "Fresh and Young"?

It seems essential that Obama's pick for the second most powerful department head must is someone committed to the mission of the department. The Dept. of Justice is where the buck stops when it comes to punishing sex traffickers and prosecuting those who coerce children into sexual acts. Bonnie S. Greenberg, a prosecutor in the U.S. attorney's office in Maryland, told the NY Times that child pornography is a serious and growing concern. “We're seeing prepubescent children who are being raped, babies, toddlers being tied up.” Yet Ogden is clearly on the record that potentially shelters such offenders. He challenged the Child Protection and Obscenity Enforcement Act of 1988, and a companion law adopted in 1990 – the Child Protection Restoration and Penalties Enhancement Act. 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.”

In 1998 the National Center for Missing and Exploited Children's CyberTipline received about 4,500 reports of children being victimized. By 2007 due partially to increased investigative efforts, that number had grown to 100,000 reports, with over 75 percent involving online child pornography. The Department of Justice coordinates between state agencies to keep the public informed as to the whereabouts of sex offenders; they even have a website updated by each individual state.


Mr. Whelan, a lawyer and a former law clerk to Supreme Court Justice Antonin Scalia, is the President of the Ethics and Public Policy Center. Whelan said that in the past, “Ogden was using his position as a law clerk 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, and, although I wouldn’t want to judge the experienced lawyer that Ogden now is solely by the perhaps immature law clerk that he was, it’s disturbing that he would indulge his political biases at all (much less as vulgarly as he did) in advancing his considered reading of the law.”



Further reading: TIME reports Christian Right concerned with Ogden Nomination