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Friday, June 13, 2008

Kozinski's Web Site Troubles

I'm home with a flu-like bug today, but I  thought it worth posting a quick link to this (for those who have not already read about it elsewhere): (HT TPM)

A closely watched obscenity trial in Los Angeles federal court was suspended Wednesday after the judge acknowledged maintaining his own publicly accessible website featuring sexually explicit photos and videos.  Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, granted a 48-hour stay in the obscenity trial of a Hollywood adult filmmaker after the prosecutor requested time to explore "a potential conflict of interest concerning the court having a . . . sexually explicit website with similar material to what is on trial here."

In an interview Tuesday with The Times, Kozinski acknowledged posting sexual content on his website. Among the images on the site were a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. He defended some of the adult content as "funny" but conceded that other postings were inappropriate.  Kozinski, 57, said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, he blocked public access to the site.

Kozinski's videos sound pretty tame to me, especially in comparison with the defendant's.  This seems like a desperate move by a prosecutor not too happy about being in front of a judge who is not likely to be sympathetic to obscenity prosecutions.  One of the great things about Kozinski is that he is not a hypocrite about these things.  As TPM notes:

In September 2001, Kozinski was a fierce opponent of any effort by Washington bureaucrats to monitor his computer, prompting Leonidas Ralph Mecham, the director of the Administrative Office of the Courts, to remark to the New York Times that "Kozinski had shown 'great interest in keeping pornography available to judges,' especially of what Mr. Mecham called 'the more homosexual and exotic varieties.'"

Judge Kozinski said Mr. Mecham's comment about ''homosexual'' Web sites appeared to refer to an incident in 1998 when one of his law clerks downloaded a Web site for a San Francisco gay bookstore and the Administrative Office complained. ''I don't think we need bureaucrats in Washington looking over our shoulders for this kind of thing,'' Judge Kozinski said.

Lessig has also weighed in with a well-taken defense of the judge:


His son set up a server to make it easy for friends and family to share stuff -- family pictures, documents he wanted to share, videos, etc. Nothing alleged to have been on this server violates any law. (There's some ridiculous claim about "bestiality." But the video is not bestiality. It lives today on YouTube -- a funny (to some) short of a man defecating in a field, and then being chased by a donkey. If there was malicious intent in this video, it was the donkey's. And in any case, nothing sexual is shown in that video at all.) No one can know who uploaded what, or for whom. The site was not "on the web" in the sense of a site open and inviting anyone to come in. It had a robots.txt file to indicate its contents were not to be indexed. That someone got in is testimony to the fact that security -- everywhere -- is imperfect. But this was a private file server, like a private room, hacked by a litigant with a vendetta. Decent people -- and publications -- should say shame on the person violating the privacy here, and not feed the violation by forcing a judge to defend his humor to a nosy world.

Posted by Eduardo Penalver on June 13, 2008 at 01:27 PM | Permalink

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Comments

Dave, I don't believe you have even seen everything that Kozinski had posted, and if you haven't, your conclusion that "what Koz posted was not "porn", or at least very different in content and purpose from the subject matter of the trial he was presiding over" is pretty ethically questionable itself.

Posted by: Ann Bartow | Jun 15, 2008 8:39:36 AM

Because Kozinski was publicly accused of hosting a porn website, I don't think it is unreasonable to think he might have personal motivations to set the bar for obscenity really high in the trial he was conducting. Once the story broke I don't think he was ethically competent to continue hearing the case and I think he did the right thing by recusing himself.

I don't disagree with the factual description that Koz may plausibly have had personal motivations for deciding the case in a particular way. As a practical matter, though, if this were the standard, it's hard for me to see what wouldn't be a basis for recusal. Assuming that most federal judges own stocks or mutual funds, so it would be impossible to find anyone to adjudicate cases involving SEC regulation of publicly held companies. More broadly, it's very reasonable to think that a judge might have a preconceived opinion about the subject matter of any remotely political case (looking at what prez appointed them, their prior work for political actors, prior involvement with interest groups, or anything they may have published or said publicly), so matters with a political flavor would seem to be subject to mass recusal on that theory as well.

I also think what Koz posted was not "porn", or at least very different in content and purpose from the subject matter of the trial he was presiding over (for reasons explained in my comment above), which I think pushes back farther against the bias point.

Posted by: Dave | Jun 15, 2008 1:53:16 AM

Because Kozinski was publicly accused of hosting a porn website, I don't think it is unreasonable to think he might have personal motivations to set the bar for obscenity really high in the trial he was conducting. Once the story broke I don't think he was ethically competent to continue hearing the case and I think he did the right thing by recusing himself.

As far as the content being "tame," reasonable minds may disagree, but much of it is clearly degrading to women, and his apparent humor obsession with children performing fellatio on Catholic priests is frankly disgusting. But, it seems to me the porn is being instrumentally deployed by Sanai to get media attention, and by Kozinski to make it seem like an assault on his First Amendment rights. I think the real story lies elsewhere, see:
http://feministlawprofs.law.sc.edu/?p=3656

Posted by: Ann Bartow | Jun 14, 2008 6:12:08 PM

I'm completely disappointed with how this played out. The arguments about judicial bias seem exactly backward. Koz’s familiarity with all the shady stuff available on the internet makes him _more_, not less, competent as a judge in an obscenity trial. Whether someone has porn on his computer doesn’t say much about their objectivity on these issues. A very puritanical person who had a strong bias against anything even remotely sexually explicit would be very likely to have no pornography on their computer, but this certainly wouldn’t mean such a person was objective. If anything, a judge who has a strong stomach for all kinds of material might be better suited to evaluate whether the highly context-sensitive First Amendment standards for obscenity apply to a particular work. Very rough analogy, but wouldn’t you rather have a bibliophile evaluate the literary merit of a given novel than someone who had never read a book?

I’ve never quite understood the standard for recusal (if there even is one), but it always seemed to me that judges recused themselves to avoid personal conflicts of interest—connections with a party or witness, for example, that could raise questions of favoritism. If we start expecting judges to recuse themselves in cases where they simply have some kind of interest in or opinion about the subject matter then it’s going to be hard to find a judge for any case.

And to echo the points Eduardo and Lessig made, it’s not quite right to call the stuff Koz has (had?) on his site "pornography", at least not in all cases. It’s more just crude, kind of bizarre, sexually themed humor—the kind of stuff a college sophomore might find hilarious and send to his frat buddies. So I think there’s a foundational difference between Koz’s motivations (which I think were merely to share bawdy laughs with others, however lame the jokes may have been) and the aims of the defendant in the trial (which were presumably to generate sexually explicit material to arouse whoever viewed it).

Anyway, it’s kind of a moot point now that there's been a mistrial.

Posted by: Dave | Jun 14, 2008 12:06:31 AM

"a member of the hierarchy of a heinous criminal cult enterprise keep nauseating material on his federal computer"

What? I'm not fully informed about this "news item," but from what I know, this comment seems one part reactionary, one part paranoid, and two parts wrong, respectively.

Did I misunderstand?

Posted by: Christian Turner | Jun 13, 2008 5:30:24 PM

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