What can we expect from the Obama Administration when it comes to the politics of sex? Is Barack Obama, personally, progressive when it comes to sex? What role does he see for sex and sex-related issues in his larger political agenda? Will Obama oversee a radical shift in thinking about how government and sexual behavior intersect? Or will Obama use sex as a political bone that he can throw to the Republican Right in the hope of neutralizing their increasingly vitriolic criticism of his other policies?
Clearly sex is not at the top of Obama’s priority list as he sets off on the second leg of his Worldwide Reset Tour, as unemployment rises to double digits, as the war in Afghanistan shifts gears, and as the first 100 days of his administration draw to a close.
There have been no dramatic press releases from the Obama Administration on hot-button sex issues, so it’s still something of a mystery, trying to understand just where Obama stands when it comes to sex. But there are a few developments that may provide clues on what we might expect over the next four (or eight) years.
Perhaps the most encouraging piece of news (for those of us in the sex-positive camp) has been Obama’s nomination, and the subsequent decisive Senate confirmation, of David Ogden as Deputy Attorney General, the No. 2 man in the Justice Department. As the Justice Department’s chief operating officer, Ogden will be responsible for resolving conflicts between U.S. attorneys in high-profile cases, and thus will have much to say about the implementation of DOJ policy in cases involving such issues as obscenity, abortion, and LGBT rights.
Ogden, who was Assistant Attorney General for the Civil Division in the Clinton Administration, and served as chief of staff for Attorney General Janet Reno, has since been a partner at WinterHale, an influential Washington law firm, where he has litigated a number of important First Amendment cases involving distribution of sex-related material.
He represented the American Library Association in its fight to keep the Bush Administration from imposing Internet filtering on libraries across the nation. He represented the American Council for the Blind in its suit to have Playboy Magazine included among publications to be translated into Braille by the Library of Congress. He supported sex educator/entrepreneur Phil Harvey in his long, eventually successful, suit overturning the DOJ policy of bankrupting sex entrepreneurs by forcing them to defend themselves against suits in multiple states simultaneously. And he supported the ACLU in its successful suit which resulted in the Supreme Court declaring unconstitutional core provisions of the 1998 Child Online Protective Act (COPA) that would have put severe restrictions on Internet sexual content.
While these positions place Ogden squarely in defense of basic First Amendment rights, none of them is radical except, perhaps, in contrast to the radically conservative positions taken by the DOJ under George Bush.
Significantly, Ogden’s nomination gained the endorsement of a broad range of far-from-radical organizations, including the National District Attorneys Association, the National Association of Police Officers, the Fraternal Order of Police, and the National Center for Missing and Exploited Children.
Responding to charges during his confirmation hearings that he would be soft on child pornography, Ogden testified decisively that he considered child pornography to be “abhorrent,” and reminded Senators that he had “vigorously defended the constitutionality of child pornography statutes during my tenure… in the Clinton administration.”
Nevertheless, Ogden’s First Amendment defenses were sufficient to make him a target for the radical right, which labeled him a “pro-pornography zealot,” as well as attacking him for his positions on other sex-related issues, including being what one critic called a supporter of “the whole package of the homosexual agenda.”
Ogden’s nomination became a rallying cry for the anti-sexual right, the first test of their clout with the new Administration, and the new Congress.
“Nominating David Ogden for such a high position in the Justice Department raises questions about whether the new President means business about curbing sexual trafficking in women and children and other sexual exploitation of children and about standing up for policies that value families,” declared Robert Peters, president of the anti-pornography organization Morality in Media.
“It would be difficult to find a person less desirable to be second in command at the nation’s top law enforcement agency,” agreed Janice Shaw Crouse of the Beverly LaHaye Institute. She called “nightmarish” not only Ogden’s positions regarding the distribution of sexual material, but also his belief that consenting adults should be able to engage in phone sex if they so choose, his arguments “that judges [should] consider the [research findings of the] social sciences” when deliberating rulings in sex-related cases, his representation of “professional psychological associations presenting positive arguments for ‘gay’ parenting, [and] ‘gays’ in the military,” and his opposition to parental and spousal notification and waiting period requirements for women who choose to have abortions.
Despite a strident effort to rally opposition to Ogden’s confirmation, including reported threats by the Family Research Council to target any Republican Senators who voted for him, Ogden was confirmed by a 65-28 Senate vote on March 12.
“Mr. Ogden’s elevation marks a major victory for pornographers, the abortion industry and the homosexual movement,” mourned conservative activist Robert Knight.
While Ogden’s confirmation marked a significant setback for the antisexual right, it should be remembered that he will take his orders from Attorney General Eric Holder, and that Holder, in turn, answers to Obama, so much remains to be seen about future DOJ policy, and about where Obama will go with regard to the full spectrum of sex-related political issues.
Attorney General Holder, it should be noted, is likely to be a good deal more conservative than Ogden, at least when it comes to the availability of sexual materials online. In a 1998 memo from Holder to Paul McGeady, founder of Morality in Media, Holder assures arch-conservative McGeady that “I fully share your concerns about the distribution of obscenity and child pornography, whether it is over the Internet or by more traditional purveyors of such material.” He goes on to encourage Morality in Media to “continue working closely with the Child Exploitation and Obscenity Section of the Department of Justice as we work aggressively to address this troubling problem.”
Furthermore, in a 1999 NPR interview after the Supreme Court declared major provisions of the Child Online Protection Act unconstitutional, Holder seemed more interested in finding new ways to restrict distribution of sexual material than in protecting sex-related freedom of speech.
“It’s going to be a difficult thing,” Holder said of future government anti-porn efforts, “but it seems to me that if we can come up with reasonable restrictions, reasonable regulations in how people interact on the Internet, that is something that the Supreme Court and the courts ought to favorably look at.”
That was ten years ago, and what one advocates in the Age of Obama may well be quite different from what was expedient when Bush was President and Ashcroft was AG. How much Holder’s positions on obscenity and other sexual issues were the basis for his nomination, and how much they were secondary to other matters, is anyone’s guess — as is how much room Obama will give Holder to define DOJ policy on sex, and how much he will set those policies himself.
The proof, as they say, will be in the sexual pudding.
San Francisco Chronicle, April 10, 2009
Copyright © 2009 David Steinberg
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