David Ogden was a law clerk for Justice Harry Blackmun during the Supreme Court’s 1982 Term. In Blackmun’s Supreme Court papers is a May 3, 1983, memo that Ogden wrote to Blackmun concerning Justice Thurgood Marshall’s draft opinion in Bolger v. Youngs Drug Product Corp. The legal question in that case was whether a federal statute that prohibited the mailing of unsolicited advertisements for contraceptives could constitutionally be applied to certain mailings. From Ogden’s memo, it appears that the justices were unanimous at conference (as they were in their final ruling) that the prohibition could not constitutionally be applied to those mailings, but that they differed over the breadth of the rationale.
In his memo to Blackmun, Ogden argues in favor of the proposition that for purposes of the First Amendment “there is no distinction between commercial and noncommercial speech that would render potential offensiveness ‘a sufficient justification for prohibition of commercial speech.’” I have no interest here in exploring whether or not that proposition is a sound interpretation of the First Amendment. What is striking is the argument that Ogden advances for why “this is a very important principle”:
[I]t 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.
In sum, 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.