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Today's Must Read
Does liking porn disqualify a judge from hearing a porn case?
Maybe so, in the case of Judge Alex Kozinski, the chief judge of the Ninth Circuit Court of Appeals in San Francisco.
Kozinski -- who is just one rung below the U.S. Supreme Court -- yesterday delayed the obscenity trial he was presiding over of Hollywood adult filmmaker Ira Isaacs, whose work includes scenes of bestiality and defecation. (Although Kozinski is an appeals court judge, he was sitting as the trial judge in this case.)
The Los Angles Times found the judge had a Web site with some pretty freakish scenes of his own, which he was sharing with friends and family.
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.
When a reporter from the Times asked the judge about the images, "the judge said he didn't think any of the material on his site would qualify as obscene."
"Is it prurient? I don't know what to tell you," he said. "I think it's odd and interesting. It's part of life."
He has since taken the site down.
Kozinski, appointed by President Regean in 1985, has been mentioned as a possible candidate for the U.S. Supreme Court. He is considered a judicial conservative on most issues.
When it comes to matters of porn and computer privacy, Kozinski is no hypocrite.
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.
The Ninth Circuit Court of Appeals based in San Francisco has a long tradition of being the country's most liberal. It's backed medical marijuana and struck the words "Under God" from the Pledge of Allegiance.













I love the Ninth Circuit for the ways in which they drive sanctimonious Republicans out of their minds, and remain unfazed.
June 12, 2008 11:25 AM | Reply | Permalink
The WaPo story includes this bit:
Which makes it sound more like personal storage of porn and not "Kozinski and his porn website," as your post said.
June 12, 2008 11:28 AM | Reply | Permalink
the images were stored in a publicly viewable folder /subdomain of his personal website, alex.kozinski.com.
June 12, 2008 11:40 AM | Reply | Permalink
It was apparently just a directory listing. Lots of people throw stuff up on the web not expecting anyone else to use it.
It sounds like he had a collection of "funny pictures" -- some of which were pornographic, others were not.
June 12, 2008 12:24 PM | Reply | Permalink
my point being that publicly viewable/non-password-protected subdomains/directory listings of personal websites (whether publicly linked or not) are not accurately described as 'personal storage' even if 'porn website' is also inaccurate.
that many people (foolishly) use publicly accessible webspace to 'store' content without expecting anyone to see it is kinda beside the point (especially since kozinski has said that he has in fact shared some of the 'stored' content with friends).
June 12, 2008 2:10 PM | Reply | Permalink
Either we live in a free society or we don't. Adult-oriented porn wouldn't be such a huge internet, video-rental, hotel-recreation business if it didn't appeal to such quotidian people as the good Judge (and many in so-called Red States), who in the aggregate clearly outnumber any pervs & deviants. And by the way, access to porn is considered a good outlet for the potentially violent sexaholics out there to dissipate their unsavory energies. I hope he toughs this out.
June 12, 2008 11:33 AM | Reply | Permalink
He's against censorship, and he has a healthy, prurient interest in porn. What's not to like?
Besides - dammit! - what's so wrong about sexually aroused farm animals?
June 12, 2008 11:37 AM | Reply | Permalink
those animals should have their genitals covered up. have they no shame?
June 12, 2008 12:04 PM | Reply | Permalink
I think I'm with the judge here.
There are all kinds of reasons to object to an image of a naked woman on all fours painted to look like a cow. I don't know why one would wish to keep such an image. But purient pornography? Saying too much about me, it doesn't seem very arousing.
Also, if the image is on a privately owned computer then it is a private matter,
Please, there's a war on and there are more important matters at hand.
No?
June 12, 2008 11:39 AM | Reply | Permalink
i agree. but to clarify: he was hosting the images with his personal webspace.
June 12, 2008 11:42 AM | Reply | Permalink
I don't know about you, but after some of the things I've seen on the internet, I'm pretty jaded about what is prurient and what isn't (Rotten.com and 2g1C both come immediately to mind, along with some of the more classic 'shock' photos which I won't name here). I more-or-less agree with your underlying point though; if there is anyone on the government payroll who should be forced to view a lot of porn, a federal circuit judge ain't a bad choice. "I know it when I see it" is a lot easier to interpret when you've seen it all.
June 12, 2008 12:37 PM | Reply | Permalink
Memo to Justice Kozinski:
'Publish on the internet' and 'keep private' are inconsistent concepts. Like most jurists at any level, the judge has no clue as to how the world wide web actually works…
June 12, 2008 11:47 AM | Reply | Permalink
Bullshit, you can have private folders on the web, and you can have folders you think are private, but are actually mis-configured. There is lots of "private" stuff published on the web.
The person who doesn't know how it works is you.
June 12, 2008 12:25 PM | Reply | Permalink
disregarding you arrogance, 'private' and 'published' are indeed antithetical. 'published on the web' quite literally means distributed for public consumption. Middle English publicen, publishen, to make known publicly, from alteration of Old French publier, from Latin pūblicāre.
you do not 'publish' that which you want to remain 'private'.
June 12, 2008 2:17 PM | Reply | Permalink
'you arrogance' should read: 'your arrogance'
June 12, 2008 2:43 PM | Reply | Permalink
i hope the judge will allow the defense to submit as evidence the images that the judge was hosting so that the jury might be able to compare.
but maybe now with the attention this prosecution/persecution is getting we could shine a little light on how this "obscenity" case originated, not locally as such cases ought to originate, but from the bush administration in washington as part of a nationwide federal obscenity task force: http://www.usdoj.gov/criminal/optf/ because THAT is the real story here.
June 12, 2008 12:02 PM | Reply | Permalink
FYI: Despite being on the 9th Circuit, Judge Kozinski is a libertarian-leaning very conservative judge.
June 12, 2008 12:05 PM | Reply | Permalink
Doesn't it always seem the very conservative white guys are Mark Foley, Larry Craig type guys?
June 12, 2008 12:09 PM | Reply | Permalink
The bigger issue is, we have no privacy anymore. What the Judge does is his business, I don't care what he looks at, but we have allowed, under this President, to have privacy be a thing of the past.
June 12, 2008 12:07 PM | Reply | Permalink
I could not have said it better myself.
I think the judge earned himself some grief by not ensuring the pictures weren't accessible by the public. But beyond that, I think what the man does on his own time is his own business.
June 12, 2008 11:51 PM | Reply | Permalink
Uh, then virtually every male is disqualified.
June 12, 2008 12:23 PM | Reply | Permalink
Apart from the obvious hypocrisy, I find it especially poignant that the defendant in the case Kozinski was hearing could escape liability on the grounds that his works have sufficient artistic value to avoid the 'obscentiy' label, but the judge has openly admitted to the unlicensed hosting of copyrighted files on the public internet. In his own circuit, in music industry lawsuits at least, hosting is equivalent to willful copyright infringement-- although there is a developing split as to whether the so-called "making available" theory is sufficient to establish infringement liability.
Copyright plaintiffs may elect statutory damages for each work distributed without a license- 17 U.S.C 504 says that statutory damages range from $200 to a max of $150,000 for EACH FILE. A plaintiff proving willful infringement can
demand the maximum fine. Since Kozinski claims innocence, a court might push his fine to the low end of the range, but if he had 100 different photos of man-on-cow love, it could easily cost him 20 grand.
And I bet he had a lot more than 100 photos.
June 12, 2008 12:26 PM | Reply | Permalink
This is the Must Read and nothing about Kucinich's impeachment. Thanks, Josh!!
June 12, 2008 12:27 PM | Reply | Permalink
Should clarify, Kucinich's Articles of Impeachment against Bush.
June 12, 2008 12:27 PM | Reply | Permalink
maybe if you actually bothered reading TPM you wouldn't make false accusations.
June 12, 2008 2:23 PM | Reply | Permalink
"The WaPo story includes this bit:
"Cathy Catterson, the executive who manages the 9th Circuit Court of Appeals, said the computer server at issue is private property, maintained by one of Kozinski's sons, who downloaded "some but not all" of the images in question.
""The bottom line is: The server and contents are a private matter, and it was not meant to be accessed by others," Catterson said. "Had he known, he would have been more careful of its contents."
"Which makes it sound more like personal storage of porn and not "Kozinski and his porn website," as your post said."
Unless it's not true, of course. Why the tie-in -- elsehwere -- about his objection to "Washington" overseeing his gov't-issue, taxpayer-funded computer? Arrogance aside, his computer at the court -- which actually seems to be the computer in question -- is not "private" "property".
Otherwise, a fascinating hypocrisy: he's a Republican, so that makes him a bad guy -- except that he isn't because he has an affinity for freakish sex. That somehow absolves him of the fact that he's otherwise a right-wing Republican.
June 12, 2008 12:33 PM | Reply | Permalink
Apart from the obvious hypocrisy
WHAT obvious hypocrisy? The judge is PRESIDING over the case, not prosecuting it. If I were the defendant, I certainly would prefer to have a judge who didn't have a problem with porn.
Furthermore, we don't know what those images actually were--many merely silly images can be described to sound inexcusably out of bounds. For example, the barnyard escapades are most likely that hilarious video (which I saw on YouTube posted as one of America's Funniest Home Videos) of a donkey trying to get it on with some poor guy who apparently had been relieving himself in the donkey's pasture--he's frantically trying to fend off the donkey and run away with his pants falling down around his ankles. It's definitely not porn--except maybe for the Marx Brothers.
Kozinski is a libertarian rather than a social conservative, and an ardent defender of the First Amendment--he has defended the rights of flag-burners, for example. Perhaps some of you shouldn't be so quick to judge the judge until you have all the evidence.
June 12, 2008 12:37 PM | Reply | Permalink
The obvious hypocrisy of this particular guy, who happens to be the highest-ranked judge in the US who does not sit on the Supreme Court, getting caught out with a bunch of his favorite fetish porn on display for everyone to see. Kozinski may be a champion of first-amendment rights, and kudos to him for the stance he has taken on that front. But he's a f*cking crazy wingnut from the Scalia-and-Posner school on every other front, and he habitually claimed the high moral ground in his decisions. Perhaps not so much anymore.
Did you even read the story? Tranny-striptease, pubic-shaving, masturbation, and hardcore photos are not "silly images" that are "just described to sound inexcusably out-of-bounds." He didn't have just one or two pictures, he had whole picture sequences (multiple 'photosets' in the industry jargon). Maybe it was garden-variety Hustler pictorial stuff- I'm not suggesting that he had kiddie porn or actual bestiality photos- but make no mistake, this wasn't just a few odd furry cartoons or punchline captions, it was a well-manicured porno collection.
But have it your way. The photos he had posted were 'jokes.' Because pictures of women being degraded are 'funny.' It's not as though they have minds of their own.
None of that changes the fact that they were posted on the internet in violation of Federal copyright law, which Kozinski is sworn to uphold.
June 12, 2008 6:56 PM | Reply | Permalink
". . . . And by the way, access to porn is considered a good outlet for the potentially violent sexaholics out there to dissipate their unsavory energies."
NAMBLA would agree with you. But the science is against that hogwash.
What gets me is the defense of a conservative Republican solely because he's into freakish sex -- and that alone is sufficient to make his whole program acceptable.
Not-so-by-the-way: Who says it was a "private" website -- WITH EVIDENCE? If it was on his COURT computer, which seems to be the fact, then it was NOT private.
June 12, 2008 12:38 PM | Reply | Permalink
how is a judge who likes porn presiding over a pornography case any different than pro lifer Chief Supreme Court Justice John Roberts presiding over women's rights cases?
besides, everyone looks at porn of some sort. most people are just afraid to admit it.
June 12, 2008 12:40 PM | Reply | Permalink
Tne 9th Circuit is the largest appellate court i the country with 27 active judges and a bunch of senior judges in semi-retired status as well. Unless Kozinski was involved in the two cases mentioned at the end of this article (medical marijuana and "Under God", and I'm too lazy to look them up to see, the fact that the court is based in San Francisco and is considered liberal is both irrelevant and misleading.
June 12, 2008 1:08 PM | Reply | Permalink
indeed. this article/post is very poorly written. seems mr tilghman is trying to emulate every bad habit of piss poor newspaper writing. not the sort of writing i expect from TPM.
June 12, 2008 2:37 PM | Reply | Permalink
Porn-by whose definition?
June 12, 2008 1:09 PM | Reply | Permalink
I'm just stunned we actually have a US DOJ "Obscenity Prosecution Task Force".
No, really. We do.
June 12, 2008 1:31 PM | Reply | Permalink
yep. THAT should be the story here. obscenity prosecution has become a DOJ priority under bush.
June 12, 2008 2:41 PM | Reply | Permalink
Read the story, JNagarya. The *fact* is that it was not on a public computer. The stuff was hosted in a subdirectory of alexkozinsky.com, which is not a government domain but his own private domain (of which he was no doubt the master...). The tie-in to the bit about his objections to the filtering put on the court system computer indicates his intellectual consistency, if anything. He's a strong libertarian who does not believe in government intervention in private affairs or limitations on free speech, even when it is not a "conservative" viewpoint - and if you don't know the difference between "conservative" and "libertarian," you really ought to look it up. In many ways, libertarians are a lot closer to liberals than to "conservatives." He is not at all hypocritical in his viewpoint and is universally recognized among those with a legal background as being brilliant.
And he is, without a doubt, the most colorful and downright brilliantly hilarious judge ever. It is a shame to see him be humiliated in this way, although he should have refused to sit on that case to begin with, just as a matter of internal conflict avoidance even in the absence of this becoming public.
Mitch
June 12, 2008 1:34 PM | Reply | Permalink
FYI
Here is an interview with Judge Kozinski on Minnesota Public Radio
http://minnesota.publicradio.org/display/web/2008/04/09/midmorning1/
June 12, 2008 1:41 PM | Reply | Permalink
Well the Bush administration has always been run like George Orwell's "Animal Farm" but even this seems a bit much. No wonder the Neo-Cons feared gay marriage would lead to people marrying animals they have already been practicing for the day when it comes... No pun intended.
June 12, 2008 1:44 PM | Reply | Permalink
Actually, the words "Under God" were added to the pledge in the 1950s. Here's how Wikipedia decsribes the change.
So the Ninth Circuit was applying a strict textual interpretation of the original writer's intent. Wouldn't that make this a conservative ruling?
June 12, 2008 5:45 PM | Reply | Permalink
IMHO the headline should be: "Bush DOJ hunts pornographers: Bin Laden 'not our priority'"
June 12, 2008 7:36 PM | Reply | Permalink
"Kozinski, appointed by President Regean in 1985, has been mentioned as a possible candidate for the U.S. Supreme Court. He is considered a judicial conservative on most issues."
Whew, I was a little worried there for a minute, when you said 9th circuit. I was afraid it was one of our guys.
I should have known better, heh. Anything kinky and it's sure to be GOP.
Not that there's anything wrong with kinky...:)
June 12, 2008 10:09 PM | Reply | Permalink
"Kozinski, appointed by President Regean in 1985, has been mentioned as a possible candidate for the U.S. Supreme Court. He is considered a judicial conservative on most issues."
Whew, I was a little worried there for a minute, when you said 9th circuit. I was afraid it was one of our guys.
I should have known better, heh. Anything kinky and it's sure to be GOP.
Not that there's anything wrong with kinky...:)
June 12, 2008 10:10 PM | Reply | Permalink
damn it, how do i get on HIS email list
June 13, 2008 1:25 PM | Reply | Permalink
I'm only somewhat surprised yet a little disappointed that this site is repeating and therefor spreading the significantly distorted spin on the judge's downloads. (In fairness, I shouldn't and don't really expect people generally including those responsible for this site to surf the same sites I do.)
Anyway, as close to the truth as anyone will get in this matter is here:
http://lessig.org/blog/2008/06/the_kozinski_mess.html
And yeah, in stuff like this, I'd go with Lessig just about anytime over the L.A. Times or the Washington Post....
June 15, 2008 8:58 AM | Reply | Permalink