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Commentary

The Controversial Tastes of a Distinguished Judge

By A FEPP Reader

(July 13, 2008) - The scandal involving the Honorable Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, has sparked a very public debate on a very private pastime. Last month, Kozinski recused himself from presiding over an obscenity trial in response to the public’s discovery of sexual images among the private files on his family’s web server (somewhat misleadingly described as his “website”).   

Kozinski, a brilliant, libertarian, and refreshingly outspoken judge, recused himself in response to a prosecutor’s motion, which cited a “potential conflict of interest concerning the court having a … sexually explicit website with similar material to what is on trial here.” He also ordered a judicial investigation into whether his behavior constituted judicial misconduct. In his defense, Kozinski explained that he found the sexual images amusing.

In a June 16 letter published on the blogsite “Patterico’s Pontifications,” Kozinski’s wife Marcy Tiffany affirmed that “he is not into porn — he is into funny — and sometimes funny has a sexual character.” (See http://patterico.com/2008/06/16/alex-kozinskis-wife-speaks-out/) She elaborated regarding one of the images that caused a particular flurry of web chatter:

One especially egregious misrepresentation is that there was a "video of a half-dressed man cavorting with a sexually aroused farm animal." In subsequent articles, including one in the S.F. Chronicle, this has been described as a "bestiality" video. In fact, … it is a widely available video of a man trying to relieve himself a field when he is attacked by a donkey he fights off with one hand while trying to hold up his pants with the other.

(The donkey evidently had an erection.) Tiffany comments: “Crude and juvenile, for sure, but not by any stretch of the imagination is it bestiality.”
 
According to Kozinski, the “public controversy surrounding my involvement in this case” resulted in “a manifest necessity to declare a mistrial." Now, at the behest of Supreme Court Chief Justice John Roberts, four federal judges are investigating whether Kozinski engaged in judicial misconduct, and whether the accidental display of his personal diversions warrants punishment or censure.  Kozinski has hired his own lawyer, and the citizens that he has spent 26 years judging are now judging him. Everyone has a different opinion, and the juicy scandal has provided endless fodder for the blogosphere.

There are two separate questions lurking behind what should have been a titillating but minor news item and has turned into a constitutional conflagration. The first is whether any of the images in the family’s files actually amount to “obscenity,” which is unprotected by the First Amendment. The prosecutor, in his recusal motion, clearly implied that they did, but in fact, obscenity is always an open question until some local judge or jury decides that a particular sexual image, film, book, or other material is so “prurient” and “patently offensive” as to violate community standards, and that it lacks any “serious value.” (See FEPP’s Fact Sheet on Sex and Censorship for more on the obscenity standard.) The impossibility of determining legality or criminality in advance only points up the vagueness and unpredictability of the obscenity test.

So the second question – the real question at the heart of the Kozinski controversy – is whether it amounts to judicial misconduct for a judge to privately view, create, or maintain sexually explicit images, whether humorous or not. The Supreme Court decided long ago (1969 to be exact, in the case of Stanley v. Georgia) that private viewing of even “obscene” material is constitutionally protected. Should the standard be different for judges? That depends, of course, on one’s attitude toward sexuality in general, and pornography in particular.

Pornography is not a legal term; it is a cultural one, and its definition is very much in the eye of the beholder. Twenty years ago, one branch of the feminist movement defined porn as “sexually explicit subordination of women,” and went on to advocate that it should all be banned because it amounts to sex discrimination. Others, including “sex-positive” feminists, argued that not all porn is subordinating and degrading, and besides, sexual fantasies are not the same as sexual acts. It is a serious question whether judges should have to relinquish their First Amendment rights to view and enjoy whatever art, literature, or humor they want, so long as it is legal, simply because some in society disapprove.

And even assuming that, in our society, it is inconsistent with judicial rectitude for judges to view pornography (whatever that is defined to mean), there remains the question of privacy. If a reporter discovered that a judge had a copy of Fanny Hill, or the latest anthology of R. Crumb comics, in his home, does that mean the judge – and all judges – relinquish their privacy rights as well as their First Amendment rights upon donning the black robe?

It's true, of course, that the files the Kozinski family thought private were viewable to anyone who had their web address. But now that computer storage and exchange have come to replace hardcopy scrapbooks and file folders for small groups of family and friends, it's necessary to accord some degree of privacy protection to these materials.

It is unclear the standards to which we should hold federal judges. Perhaps their reputations must be spotless, and their sexual interests, albeit legal, should never be on display. If Kozinski’s images depicted blatant degradation of women, that might evince the “appearance of impropriety” that is barred by the federal Code of Judicial Conduct, but nowhere does the Code indicate that enjoying jokes of a sexual nature compromises a judge’s ability to be impartial. 

The most telling aspect of the Kozinski scandal is that the tipster who first alerted the Los Angeles Times to the sexual material on the Kozinski family server was a disgruntled lawyer who previously accused the judge of bias. When something as subjective as the character of sexually explicit content is considered, we should all be concerned that bad motives, and not principles, will yield unfair punishments for otherwise law-abiding citizens, or even remarkable and iconoclastic federal judges.

Marjorie Heins contributed to this article.


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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