Tuesday, Feb 3, 2009    Text size: 

A senate panel has scheduled a hearing Thursday on the nomination of attorney David W. Odgen to serve as deputy attorney general, the agency’s second in command.

As a partner at the WilmerHale law firm in Washington, Ogden has represented a number of blue-chip adult brands, including Playboy Enterprises and PHE Inc., parent company of Adam & Eve.

If confirmed by the Senate, Ogden will serve as the Justice Department’s chief operating officer and will be asked to resolve conflicts between U.S. attorneys over high-profile cases, including obscenity cases.

Ogden had previously led the department’s civil division and managed the office of then-Attorney General Janet Reno as her chief of staff.

For the adult entertainment industry, the pick could constitute a strong one, considering Ogden’s record in representing companies over First Amendment rights and obscenity cases, including:

• 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.).

Already, some groups are asking for closer scrutiny by congressional leaders because of several ties to adult, despite the fact that the business litigator specializes in regulatory and governmental affairs and has represented hundreds of mainstream businesses, including companies in the pharmaceutical, petrochemical, insurance, financial, airline, defense, automotive, media and Internet industries.

Brian Burch, who runs Fidelis, a Catholic-based advocacy organization, called Ogden’s selection to the No. 2 attorney general spot “a major mistake.”

“Ogden’s record is nothing short of obscene,” Burch said. “He has represented Playboy Enterprises in multiple cases, Penthouse Magazine, the ACLU, and the largest distributor of hardcore pornography videos.”

“He has opposed filters on library computers protecting children from Internet smut, and successfully defended the right of pornographers to produce material with underage children,” Burch said. “Ogden even sued the federal government in an attempt to publish Braille versions of Playboy magazine — at taxpayer expense, of course.”

Holder, the new attorney general, said Tuesday that he promises a “break with the immediate past” and that the department’s 110,000 employees could look forward to working in an environment where “there shall be no place for political favoritism. No reasons to be timid.” The Senate confirmed Holder Monday by a vote of 75 to 21.

But some worry that Holder will be inclined to continue the Bush administration’s crusade against adult entertainment.

A handful of civil libertarians cite a June 1998 memo in which he told U.S. attorneys that obscenity prosecutions should focus on “cases involving large-scale distributors who realize substantial income from multistate operations and cases in which there is evidence of organized crime involvement” but added that “cases involving relatively small distributors can have a deterrent effect.”

Holder’s ceremony was conducted by Vice President Biden, who praised Holder as someone who understood that he was “the people’s lawyer” and not just part of a White House administration.

Diane Duke, Free Speech Coalition's executive director, hailed the selection of Holder and nomination of Ogden.

"Clearly the current administration is appointing people in these high-level positions who will respect and uphold the Constitution," she told XBIZ. "After eight years of government-imposed atrocities on our constituonal rights, it will be refreshing to have a voice of reason in the AG’s office rather than one dictated by a fundamental extremist minority."

Adult industry attorney Colin Hardacre, of the Los Angeles-based Kaufman Law Group, echoed Duke's take on President Obama's two picks for the top goverment law jobs.

"It is a nice change of pace to see the president choosing smart people with experience," he told XBIZ. "This is a good sign for the adult industry."