Beliefnet
Steven Waldman

Sounds like religious conservatives have found their juiciest target. Family Research Council says that David Ogden, President Obama’s nominee to be deputy attorney general, is a “pornography advocate” who has “profited from representing pornographers and in attacking legislation designed to ban child pornography. The Department of Justice should not have a porn lawyer as its Deputy Attorney General…. “

“Porn lawyer.” That’s the shorthand being used throughout the conservative blogosphere about Ogden. Now there’s something to put on your business card.
What’s that based on?
Ogden wrote a brief in a Supreme Court case challenging the constitutionality of The Children’s Internet Protection Act, which required libraries to have anti-porn filters on their public-facing computers. If it’s Constitutionally protected speech (as much porn is), he argued, then you can’t censor.
At first blush, this seemed like a case of conservatives mistaking a civil libertarian for a pornographer. Wanting Miranda rights for criminals doesn’t make you “pro-crime” and fighting censorship doesn’t make you “pro-porn.” And this wasn’t a law “designed to ban child pornography.”
But on closer inspection,I have to say, Ogden seemed to take a fairly extreme civil libertarian position. It’s notable that when the Supreme Court upheld the law (going against Ogden’s position), liberal Justice David Breyer joined the conservative judges, in part because the law allows adults to ask the librarian for access to the naughty sites. They may have to flip up the collar on their seedy trenchcoat when they approach her, but they do have recourse.
In addition, according to the conservative group Fidelis, Ogden represented Playboy Enterprises in seeking to get the Library of Congress to pay for the translation of Playboy into braille (presumably just the articles). And Ogden represented Playboy in a fight to get the bunnies onto cable TV in Puerto Rico.
Perhaps “porn lawyer” isn’t fair. How about: “Porn watchers advocate”?
In general, I have a hard time getting angry at civil libertarians, even when I disagree with them about a particular case. Their job is to force courts to confront difficult Constitutional tradeoffs. So I dont consider Ogden some sort of pervert, as the religious conservatives do.
But as a parent, I do want the Justice Department run by people who are creatively thinking of ways to protect the Constitution and my children –who believe that the threat of cultural pollution is just as grave as the threat to the civil liberties.
Here is the Ogden’s amicus brief and below the fold I’ve provided choice excerpts of his and Breyer’s views:


Ogden’s summary:

“This case may appear to present an issue about the availability of a narrow category of expression (“harmful to minors” material) through a single medium (the Internet), but in fact it implicates an issue of great importance to the intellectual and political life of our nation: the role of the public library, long a vital center for the acquisition of information and the exploration of ideas. As a condition of receiving federal funds, Congress has — with the Children’s Internet Protecttion Act …(“CIPA”) — insisted that public libraries affirmatively censor constitutionally-protected material. By demanding that libraries be censors and devote resources — not to facilitating but to interfering with patrons’ pursuit of information and ideas, Congress has subverted the role of libraries and public libraries and violated the First Amendment rights of library patrons.
“Public libraries exist to meet the information needs of their patrons, not to censor information in accordance with a predetermined agenda. Imposition of mandatory filtering on public libraries impairs the ability of librarians to fulfill the purpose of public libraries — namely, assisting library patrons in their quest for information — and distorts public libraries’ traditional function by interfering with local control over the management of their resources. Mandatory filtering also imposes unwarranted restrictions on the use of the Internet, a library resource not subject to spatial and budgetary constraints that typically restrict print collections. Far from being “just another collections decision,” mandatory censorship of the Internet proscribes access to constitutionally-protected expresssive materials without any resource-scarcity justification. Moreover, through ingenuity and adherence to the long-established values that guide the profession of library science, public libraries have developed techniques for protecting minors from harmful materials on the Internet that are more effective than mandatory filtering.
For all these reasons, CIPA is unconstitutional. Congress cannot condition public libraries’ receipt of funds on their agreement to violate the First Amendment rights of library patrons. The public library is the quintessential forum for the receipt of information. With respect to a medium like the Internet that is subject to virtually no resource limitations, content-based exclusions of constitutionally-protected material are subject to strict scrutiny. CIPA cannot survive such scrutiny because mandatory filtering is not narrowly-tailored to achieve a compelling purpose. Specifically, CIPA is both grossly overinclusive and significantly underinclusive in the matrerial it censors, and prohibits access by adults to information they have a constitutional right to receive. Less restrictive approaches, including those already used by public libraries throughout the United States, are as or more effective in protecting children while interfering far less with the rights of adults.”

In concurring with the opinion of Justices Rehnquist, Thomas, O’Connor and Kennedy, Justice Breyer, a liberal, wrote:

Libraries often properly engage in the selection of materials, either as a matter of necessity (i.e., due to the scarcity of resources) or by design (i.e., in accordance with collection development policies)…
The Act’s restrictions satisfy these constitutional demands. The Act seeks to restrict access to obscenity, child pornography, and, in respect to access by minors, material that is comparably harmful. These objectives are “legitimate,” and indeed often “compelling.” …
the Act contains an important exception that limits the speech-related harm that “overblocking” might cause. As the plurality points out, the Act allows libraries to permit any adult patron access to an “overblocked” Web site; the adult patron need only ask a librarian to unblock the specific Web site or, alternatively, ask the librarian, “Please disable the entire filter.”…
The Act does impose upon the patron the burden of making this request. But it is difficult to see how that burden (or any delay associated with compliance) could prove more onerous than traditional library practices associated with segregating library materials in, say, closed stacks, or with interlibrary lending practices that require patrons to make requests that are not anonymous and to wait while the librarian obtains the desired materials from elsewhere….
Given the comparatively small burden that the Act imposes upon the library patron seeking legitimate Internet materials, I cannot say that any speech-related harm that the Act may cause is disproportionate when considered in relation to the Act’s legitimate objectives. I therefore agree with the plurality that the statute does not violate the First Amendment.

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