This is the full-length version of my article that appeared in today’s Los Angeles Times (and thanks to the Los Angeles Times for publishing a shortened version of my response to Bazelon as today’s Blowback).


Alex Kozinski, the Chief Justice of the 9th Circuit Court whose private fileserver was revealed to contain pornographic images, has been the subject of both harsh criticism and strong support over the affair. In an opinion piece, Lara A. Bazelon, a deputy federal public defender on a temporary leave, joins the ‘Crucify Kozinski’ brigade despite the inherent flaws in the case against the federal judge highlighted so well by the LA Times op-ed for which I praised the paper here. To Bazelon, too, I was compelled to respond.

She begins:

In its editorial, “Free country, The [Los Angeles] Times asks, “so what?” about Judge Alex Kozinski’s collecting of pornographic material while presiding over an obscenity trial. Well, here’s what: Kozinski, who recused himself from the case and declared a mistrial, has been arguing for years for tighter restrictions on federal judges.

Yes, but he hasn’t been inviting scrutiny of their private computer files! And he has also now invited his colleagues to use those tighter restrictions to initiate proceedings against him if they so wish. “Here’s what”? Surely Bazelon isn’t alleging hypocrisy? Kozinski would be a hypocrite only if he argued against those restrictions being applied to himself. To the contrary, he is inviting their use equally in this case, an approach in which I see confidence. My reading of this is that Kozinski is confident his conduct does not fall short of the statutes, and is displaying that confidence by inviting judgement on his conduct. Bazelon goes into detail on the parts of the statutes of which she believes Kozinski falls short, and on which he could be disciplined. Before that, she takes a quick look at ‘What He Did’:

A Times story reported that Kozinski maintained a private website replete with pornographic material, including “a picture 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.” [My emphasis]

Well Bazelon hasn’t been paying attention. Kozinski’s wife Marcy Tiffany spoke out about this the other day and described the material in more detail. She says of that clip: “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.” Not exactly “cavorting” in the sense Bazelon and The Times’ story implies, is it? Barnyard humor, to be sure, but an instance of rejecting a donkey’s advances does not pornography make. To “cavort” is to “apply oneself enthusiastically to sexual or disreputable pursuits”, according to the definition in my dictionary. Kozinski’s wife adds, “There is a version of this video on YouTube that apparently aired on the Fox channel.” It’s that shocking, eh? Bazelon doesn’t care to report accurately on the nature of the actual material, or she would have mentioned it. And, as we shall see in a moment, she doesn’t care to report accurately on the nature of the actual ‘website’, either.

Okay. On to the statutes. Bazelon gleefully reports:

While the misconduct standard is somewhat vague, Congress has made clear that it was intended to punish judges for “conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” Rules enacted by the judiciary in March 2008 have refined the definition to include behavior off the bench that results in “a substantial and widespread lowering of public confidence in the courts among reasonable people.” The outraged response of hundreds of Times readers, whose dismay extended from Kozinski’s conduct to include concern about the integrity of judges in general, is compelling evidence that this standard has been met.

Except for a few things. First, the “outraged responses” were responses to a mere newspaper report giving vague summaries, rather than any firsthand access to the material, a newspaper report which has since been shown to have been of limited clarity, and thus of causing people to completely misunderstand the nature of the site.

This statute would appear to be based on public perception. What if public perception is false? How is Kozinski then to blame for it? The case against Kozinski hinges on his maintaining a “pornographic website” (in Bazelon’s words). But that description is almost entirely misleading: this was not a website that one would browse on the internet with a menu and links and banners. It was a private fileserver – a place for his family and friends to store and share letters, funny emails, documents, pictures of the grandkids – not a public website at all. The fact that someone was able to access Kozinski’s family scrapbook only means that the scrapbook wasn’t locked away as well as they thought. It hardly constitutes even thoughtlessness on their part – one has an expectation of privacy in such spaces – let alone an activity that should lower “public confidence in the courts among reasonable people.” Reasonable people don’t get outraged about fairly harmless material on somebody else’s private fileserver.

Bazelon apparently thinks that the mere fact that hoards of moralizing people who heard about a judge with a pornographic website, then jumping into comment forums to express their ‘disgust’, constitutes “compelling evidence” that there has been a “substantial and widespread lowering of public confidence in the courts among reasonable people.” I don’t buy that. What we have instead is a trigger-happy press and a ‘soundbite public’ whose attention span is only long enough to hear the words ‘judge’ and ‘porn’ in the same sentence and thereafter to act as shocked as if they had studied the case sufficiently to be capable of forming such an opinion. The Lessig blog has done a fantastic job of analyzing this case of what he describes as “…the total inability of the media — including we, the media, bloggers — to get the basic facts right, and keep the reality in perspective.” Again, Bazelon would do well to pay attention to the intricacies of such things before commenting like this.

But that’s not all. She continues:

Kozinski could also be disciplined for violating Canon 1 of the Code of Conduct for Federal Judges, which states that a “judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.” Kozinski’s decision to maintain a pornographic website can be called a lot of things, but promoting “high standards of conduct” isn’t one of them.

Is she serious? Again, she appears to have no concern whatever about representing accurately the nature of the material or wherein or with what it was located. I hope Bazelon never has to endure a public breach of her own private life in this manner, but such an invasion of her privacy would only serve her right. Again her talk of his “decision to maintain a pornographic website” is asinine.

Lessig has a good way of explaining it: “Imagine the Kozinski’s have a den in their house. In the den is a bunch of stuff deposited by anyone in the family — pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family’s stuff. He finds some stuff that he knows the local puritans won’t like. He takes it, and then starts shopping it around to newspapers and the like: ‘Hey look,’ he says, ‘look at the sort of stuff the judge keeps in his house.'” That’s what happened.

Furthermore. Kozinski’s wife Tiffany has said that her husband is “into funny”, not “into porn.” But let’s say he was, hypothetically. Let’s say there weren’t hundreds or thousands of completely non-controversial items in there (which there are), and that most of them weren’t G-rated (as they are). Let’s say the tiny percentage of the pictures that contained nudity weren’t simply meant to be amusing (as they are); let’s say they had no comedy value whatsoever but rather a purpose of sexually arousing the viewer (which they don’t). Let’s say Kozinski had a sizable hardcore porn collection on his private fileserver (which he doesn’t). What the hell would even that prove about Kozinski?

That he’s normal?

Bazelon sees Kozinski’s ‘website’ as his holding to less than a “high standard of conduct”. I wonder which part of it falls short in this regard. Is it that he would have seen pictures of naked people in his private time? Is that misconduct? Is it misconduct to have seen others having sex? Or is it, as I suspect, that a judge possesses a sexuality at all in the first place? What is it that people have judged to be so deficient about the viewing of pornography in private that it constitutes misconduct for a judge? And does this judgement fall on all other mere mortals also? After all, recent studies appear to show that most people view pornography in private (a recent study found that 98 percent of the men and 80 percent of the women had viewed pornographic material, a high percentage of each doing so on a regular basis).

This draconian application of this standard also practically begs the question of how we wish to define pornography. Is any arousing image pornographic? Or only those containing sex acts? What in particular makes the image on Kozinski’s server of two girls painted as cows pornographic? The fact that they’re nude? Are all nude images pornographic? Or only those showing genitalia? How lucky we are to have people like Bazelon to have answered these complex questions on our behalf and prejudged for us the standards of conduct so derived. How lucky Kozinski is to have other people defining for him what material is appropriate for him to possess on his private fileserver and predetermining that possession of a small percentage of it constitutes misconduct.

The piece goes on:

The judiciary has come under fire in recent years for failing to use the act as intended. Critics accuse federal judges of going easy on their colleagues who committed egregious misdeeds out of a sense of sympathy or undue favoritism. Ironically, one of the most vocal was Kozinski himself. In 2005, he wrote a blistering dissent in which he castigated his colleagues for dismissing a misconduct complaint against District Judge Manuel Real.

Yes, and Manuel Real was accused of misconduct relating to a case he had ruled on, not an issue bearing on his private life. That’s what the Act is for; to ensure that judges conduct themselves appropriately in judicial proceedings. Again I think Bazelon is implying that Kozinski is a hypocrite, as though he had a history of urging that other judges not be allowed to own pornographic images! In fact, to the contrary, Kozinski has a flawless record of supporting and upholding the 1st Amendment right to free speech and free expression, including his famous fight to remove porn filters from court computers (a fight which was successful). I’d say, given what he’s being accused of, that is the exact, polar opposite of hypocrisy.

She finishes by saying:

How ironic, then, if the very rigor that Kozinski argued for with such eloquence is used to serve his own comeuppance. The argument for tougher standards on judges, it seems, has come full circle.

There’s nothing ironic about it. Kozinski is not arguing that he be treated any differently from any other judge. And more important, he’s not guilty of judicial misconduct, by any stretch of the imagination.