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Federal Judge On Obscenity Case Posted Porn Images On His Web Server

from the is-that-good-or-bad? dept

Wed, Jun 11th 2008 6:44pm — Mike Masnick

A lot of attention is suddenly getting turned on judge Alex Kozinski, the 9th Circuit chief judge, who (while in the middle of a trial about obscenity) was discovered to have posted pornographic images to his web server in a way in which they were accessible to the public. He didn't post them to a specific page or anything. It's just that he put them in an unprotected directory, and if you knew where to look, you could find them. Basically, it looks like he was just using the directory for personal storage, not realizing that it was publicly accessible, though, at one point he appears to claim he uploaded the images by accident. Some of the images were... extreme. Judge Kozinski described them as "funny" and "I think it's odd and interesting. It's part of life."

Some are saying that he should recuse himself from the obscenity trial, noting that he's no longer objective. However, considering that obscenity is supposed to be based on local standards, that doesn't seem right. If even the judge finds those types of images "funny" or "interesting" and "a part of life," then perhaps that's making it pretty clear that they're not obscene. Saying he needs to recuse himself seems to be presupposing that the images are obscene, which doesn't seem quite right. Rather than being used as a way to tar the judge, doesn't this just raise questions about obscenity laws in the first place?

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Filed Under: alex kozinski, judges, obscenity

27 Comments

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Anonymous Coward, 11 Jun 2008 @ 6:57pm

Mike, you're exactly right.
If the judges were filtered, so that only judges who would never have anything to do with pornography were judging the case, it would (obviously) bias the case against the defendant.
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Alan, 11 Jun 2008 @ 7:12pm

Mike, you're exactly wrong
If it were a case having to do with child pornography and the photos he posted were related to child pornography, would you be saying it raises questions about child pornography laws? If the photos in question are similar to materials he is reviewing as part of the case (and it sounds like they are), then of course he should recuse himself. Come on Mike, do you really think that the only reason he had these pictures is because he thinks they are "funny"? I think it's fairly clear that he is just saying that so that people won't think he's a closet pervert. This post was clearly just a means to promote your own personal moral views Mike. And you certainly have a right to do that, but do it on your personal blog. I read techdirt for arguments that have a clear economic, technological, or legal basis. Stick to those.
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Jake, 11 Jun 2008 @ 7:22pm

Re: Mike, you're exactly right.
On the other hand, he should probably consider recusing himself on the grounds that nobody is going to be able to keep a straight face in court if he doesn't.
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Jason, 11 Jun 2008 @ 7:23pm

First of all, what we want is an impartial judge. Clearly this judge isn't impartial, he's biased in favor.

Second, it would be nice to have a judge that's smart enough to avoid being caught, and who can tell the difference between "public" and "private" online services.
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Rose M. Welch, 11 Jun 2008 @ 8:24pm

Re:
So if he likes porn, he's biased one way...

By that logic, if he doesn't find porn interesting, he's biased the other way.

So I guess you'd need to find a judge who was unresponsive to porn?

Good luck with that.

I'm reasonably sure that our judges are supposed to guide jurors in jury cases, and make reasonable fair decisions based on the law, legal precedents, and the facts of the case... Not personal feelings about the subject matter. If he can't do that, he should be dismissed as a judge altogether. If he can do that, he should be able to stay on the case, regardless of his feelings on the subject matter.

If we want judges who are personally unbiased, we would have to have judges who were unresponsive to child abuse, murder, sex crimes, etc. I don't want to even know anyone who's unresponsive to those things, much less employ them as a judge...
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Anonymous Coward, 11 Jun 2008 @ 8:25pm

If Scalia can go out hunting and hanging out with a defendant and still consider himself "unbiased", then surely someone who looks at porn can decide whether or not something is obscene. Last I saw, owning adult porn was not illegal.
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Anonymous Coward, 12 Jun 2008 @ 4:29am

Re:
"Last I saw, owning adult porn was not illegal"

That's what this whole case is about. Where's the line between "illegal" and "fetish" basically.
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Norm, 12 Jun 2008 @ 5:34am

Rose is correct I believe. When it comes to bias you don't want someone in either direction ideally, but to only allow super straight arrows is going to create a bias.

Hopefully he will judge based on the law and the merits not his personal views.
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Anonymous Coward, 12 Jun 2008 @ 5:37am

Re: Re:
I think you should rephrase that Anonymous Coward. "Fetish" is not illegal by definition. Some fetishes may be but not the majority.

Asking him to recuse himself from an obscenity case because he hosted porn is like asking a judge to do the same for an excessive speeding case because he owns a Viper. If it's not illegal he should be allowed to do as he pleases as long as he remains unbiased in the court room.
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Anonymous Coward, 12 Jun 2008 @ 5:38am

It is that ethical 9th Circut that makes all those liberal rulings Mike likes that is embarrassing.
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Chronno S. Trigger, 12 Jun 2008 @ 5:56am

Re: Mike, you're exactly wrong
That is a good point but where the hell douse it say anything about child porn? He had animal porn. Last I knew, that wasn't illegal. From the fact that it's an obscenity hearing against someone that actually distributed it, I would guess that is the reason that the original case was raised. To attempt to make it illegal.
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Jared, 12 Jun 2008 @ 5:57am

Recuse them all...
Frankly i think all of the 9th circuit judges should just be disbarred and replaced. They don't actually interpret existing law, they attempt to legislate from the bench. They're an embarrassment to the legal community.
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OldYeller, 12 Jun 2008 @ 7:16am

You're both right and wrong (waffles for breakfast, anyone?)...
You're right, Mike, in that the possession of porn is not necessarily grounds for the judge to have to recuse himself. That would be like a traffic-court judge being asked to recuse himself from all speeding cases because he got a speeding ticket himself.

What's relevant in this case is that an obscenity trial is based on subjective community standards as to what "obscene" is. Since the judge is obviously not of the opinion that all porn is obscene, he represents the mainstream in that regard. Unfortunately, the subjective nature of deciding whether the judge's content is obscene or not will now become a distraction, and has the potential to influence the jurors if they become aware of the news.

Since his main responsibility is to ensure a fair trial, he should recuse himself, not because it's wrong to own porn, but to remove any doubt or appeal that the jury was influenced by thinking about this mid-trial revelation instead of the case itself.
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John Wilson, 12 Jun 2008 @ 7:43am

Re:
Just jow do you know he's biased in favour of the what is being defended in the case?

Anyway, all judges have personal biases and opinions about lots of things just like most other people. Impartiality does not rule those out completely it is a safeguard and assurance that they are impartial with respect to the case in front of them. Not that they're unbiased.

One of the best ways to assure that is that the person involved is aware of his/her bias.

Bias tends to become an issue only when you (or anyone else) disagrees with that bias.

If we disqualify everyone who is tech ignorant from holding judicial office the the perhaps we should demand the same from other players in the legal system from barristers to jurors.

ttfn

John
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mobiGeek, 12 Jun 2008 @ 10:39am

Re: Re: Re:
"Fetish" is not illegal by definition. Some fetishes may be but not the majority

I think you should rephrase that Anonymous Coward. It is contradictory by definition. Well, mostly it is.

By what definition of "fetish" does the law come in?
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mobiGeek, 12 Jun 2008 @ 10:44am

Re: You're both right and wrong (waffles for breakfast, anyone?)...
But Mike isn't questioning whether the judge is biased or not. He's questioning whether "obscenity laws" should be rethought in the first place. Just exactly how fair can a law be when I can be given completely opposing judgments simply by the luck of the draw of judge that I get.
In other words, laws should be written in such a way as to eliminate personal biases. If they aren't written that way, the laws should be reconsidered (reworked or rescinded).
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Anonymous Coward, 12 Jun 2008 @ 10:54am

Re: Re: Mike, you're exactly right.
But recuse himself on what grounds?
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Anonymous Coward, 12 Jun 2008 @ 10:57am

Re: Mike, you're exactly wrong
Laws against child porn are based on actual harm inflicted on the child by the pornographer. Laws on obscenity are about presumed harm inflicted by the viewer on themselves. The two are very much different beasts.
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Anonymous Coward, 12 Jun 2008 @ 11:00am

Re: Re: Re:
I think you misread: the line between illegal and fetish. They aren't saying fetishes are illegal.
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Anonymous Coward, 12 Jun 2008 @ 11:03am

Re: You're both right and wrong (waffles for breakfast, anyone?)...
It's closer to saying a judge recuse himself from speeding cases because he owns a car, not got a ticket. Owning porn is not illegal, but speeding is.
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Jason, 12 Jun 2008 @ 11:42am

Not the point!
The real issue is that he DIDN'T KNOW that he was publishing this content.

Can someone with that level of technical incompetence really make informed findings and rulings on the fragile nuances of internet publication law?

Whether his 'thought to be private' activities were indecent or not is far more subjective and speculative. He's simply not technically qualified.
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buckykat, 12 Jun 2008 @ 11:57am

Re: Re:
why should there be a line at all? nothing that doesn't harm people should be illegal.
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mobiGeek, 12 Jun 2008 @ 12:30pm

Re: Not the point!
The case isn't about "internet publication law", it is about "obscenity".
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cats, 12 Jun 2008 @ 12:37pm

Link?
You didn't put in the link to his publicly accessible porn. How am I supposed to come to any conclusion about them?
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Jason (profile), 12 Jun 2008 @ 1:57pm

Re: Re: Not the point!
@mobiGeek

The case is not about obscenity. The case is about the law, and obscenity law is about the first amendment. Obscenity case law deals with loads of minutia involving format, method of distribution, number of violations and degree of criminality.

Any physical videos produced might be cut and dry decisions, but any stuff on his hard drive, or on websites, email attachments, etc. directly impacts decisions on how many counts and exactly what types of violations occurred.

Additionally, anything from this case that goes to publication could be used in further cases that don't involve obscenity at all but if they share a parallel issue, then the case can be cited and the citation could ultimately be decisive in a non-obscenity case.

If Time Warner et. al actually are successful in blocking Usenet on their networks to protect against obscenity, any statement he would have made that referenced format or method of distribution would have had direct impact on non-obscenity related topics.

This judge doesn't even know how to click on his "View my profile" link. How is he going to be able to gauge the broader impact of the statements in his findings or rulings on other free speech cases?

So, yes his complete demonstration of technical savior fail matters here.
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oregonnerd, 13 Jun 2008 @ 8:51am

Re: Norm
Your username (whatever the provenance) is so appropriate I had to comment.
--Glenn
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Remains Anonymous, 28 Mar 2009 @ 12:32am

Shame On The Judge!
Federal Judge Kozinski should be relieved as judge on the obscenity case as he is tainted by pornography. The plaintiff should request the case be moved to a judge that can hear the case fairly, without personal opinions. The fact that this judge has expressed his personal opinion about the pornography images shows he cannot judge the case fairly. A case is ruled on evidence, not opinions. Look up the meaning of obscenity in your dictionary. Also, obscenity is NOT protected under the First Amendment Rights. Whether coming down on the pornography industry with all its greed and billions of dollars made over obscenity... is enforced, eventually it will happen, no matter what the mass extent of it that exists currently. Two wrongs doesn't make a right! Slavery was at one point in history considered okay, but the laws changed... and now slavery is considered illegal. Pornography is inhumane and victimized the performers in the worse ways, just like slavery was!
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