Judges are supposed to uphold the First Amendment and advocate freedom of speech for all people,  but it doesn’t necessarily follow that judges are entitled to First Amendment protection for their own speech.  Last Thursday, Chief Judge of the Court of Appeals for the Ninth Circuit, Alex Kozinski, called for an investigation into his own potentially pornographic postings on his personal website.  On Friday, Kozinski recused himself from the high-profile obscenity trial of Hollywood filmmaker Ira Issacs because of those postings. 

The Los Angeles Times reports that the images posted on Kozinski’s website range from crudely humorous to arguably obscene.  Among the items were a photo of two nude women painted to look like cows, a slide show of a striptease by a transsexual, a series of photos of women’s crotches in tight clothing or underwear, and a step-by-step pictorial of a women shaving her pubic hair.  Since the Times’ initial unveiling of the postings, the debate has been raging over how this situation should be handled.

Some say, so what?

An editorial in the Los Angeles Times says, “Scolds who argue that judges should uphold a higher standard of decorum than the common citizen and should somehow be prevented from engaging in such private activity as gathering subjectively amusing or even appalling smut should recall that the 1st Amendment is not limited to high-minded endeavors.”

Other supporters of Kozinski argue the materials weren’t porn in the first place.  Kozinski’s wife, Marcy Tiffany, who has been married to Kozinski for more than thirty years, writes, “The fact is, Alex is not into porn – he is into funny – and sometimes funny has a sexual character.”  She argues that, rather than hard-core porn, the pictures are more accurately described as “raunchy humor”. 

Perhaps one of the most persuasive defenses of Kozinski’s actions is that he intended to post the materials on a private website.  In an interview with the Los Angeles Times, Kozinski claimed he believed it was a private storage area that could not be accessed by the public.  He said, had he known it wasn’t secure, he would have been more cautious about the content he kept there. 

So Kozinski’s real mistake may have been his recklessness in ensuring his “private website” was really private.  Had the fact that he posted these materials never been made public, and were just known by his close friends and family, we wouldn’t be worrying about the public’s perception of Kozinski’s impartiality.  But now that we know Kozinski has not only posted these images on his personal website, but defended some of the postings as “funny,” the public may doubt his ability to be impartial in an obscenity trial; particularly when Isaacs, who was accused of violating federal obscenity laws by distributing hard-core pornographic films depicting acts of bestiality and defecation, planned to defend his materials as “works of art”. 

Then again, do we only care about appearances of impartiality?  Even if his personal website hadn’t been made public, is it possible we should still be concerned about his ability to be impartial regardless of whether the public’s perception of it has been altered.  As one blogger writes, “As a lawyer, I would not want to appear before [Kozinski]. His penchant for degrading pictures of women suggests that he would not treat me with the same courtesy he would extend to men. Further, I would not trust his judgment, particularly in a case involving sexual harassment, obscenity, pornography, or any sex crime.”

DeNae Thomas

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