Judges Gone Wild
posted by Kaimipono D. Wenger
What should we make of the bizarre Judge Kozinski story?
As reported by the Los Angeles Times, Wall Street Journal, Above the Law, How Appealing, Law.com, and other sources, Judge Kozinski (or a family member, or both — it’s apparently still not clear) uploaded various sexually explicit photos onto a personal web server, which he says he didn’t realize was accessible to the public.
The photos, as described by the LAT and WSJ, are really crude and misogynistic — pictures of naked women as cows; pictures of womens genitalia with the caption, “Bush for President”; implied bestiality as humor.
-According to law.com, Kozinski’s web-browsing habits have long been a source of irritation. A judiciary employee quotes the late Chief Justice Rehnquist furiously saying, “Tell Alex to watch pornography at home and not download it and watch it in the courts.” Ouch.
-In an e-mail to Howard Bashman, a person claiming to be the LA Times’ source for the story also claims that the WSJ and other papers knew about the story previously but decided not to publish it.
-Howard has asked readers to send in opinions on whether the story is really newsworthy, as well as opinions on a number of other interesting issues (including, does this effectively bar Judge Kozinski from future SCOTUS consideration?).
What to think about it all?
Well, let’s start out with, what not to think. Is this story really just about private use of sexual images?
I don’t think it is. We can see that through a counterfactual. Suppose that Justice Kozinski was spotted at Barnes and Noble, picking up a Penthouse magazine. Would that be problematic? (Would it be newsworthy?)
I think that most observers would say, he’s an adult. He can buy a Playboy, or subscribe to the Spice Channel, if he wants to. That’s his own business. Even observers who find pornography generally distasteful would, I think, say that it’s ultimately a private matter.
(It would still be problematic for some observers. There are strong strains of pure anti-porn thinking, in both social conservative and feminist thought. (Not that all feminists are anti-porn, but the idea absolutely has currency among some feminists.) To those observers, Judge Kozinski’s actions are wrong, simply because they involved his viewing of sexually explicit images. But those views are a relative minority.)
Is this story the same? (And if it is, why are we talking about it?) It seems to potentially differ, in several ways.
First, the images as described don’t seem to be run-of-the-mill prurient imagery. The LAT describes some of the images as:
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. . .
images of masturbation, public sex and contortionist sex. There was a slide show striptease featuring a transsexual, and a folder that contained a series of photos of women’s crotches in snug-fitting clothing or underwear. . . .
a young man is bent over in a chair and performing fellatio on himself. In the other, two women are sitting in what appears to be a cafe with their skirts hiked up to reveal their pubic hair and genitalia. Behind them is a sign reading “Bush for President” . . .
A graphic step-by-step pictorial in which a woman is seen shaving her pubic hair.
From the descriptions, these seem like images that could be potentially disturbing to more than just sexual puritans. Franky, the collection as set out by the LAT sounds like a deliberate and conscious aggregation of misogynist images. I wouldn’t be bothered by seeing Judge Kozinski buying a Playboy at the bookstore — but collecting images of women-as-cows is something I find disturbing.
(And as a related issue — in the LAT story, Judge Kozinski repeatedly defends the images as being humorous. I don’t know if that helps. The humor in many of these images as described seems to be that they degrade women, in a sexually themed way. Is that supposed to be a defense?)
Second, whether or not Judge Kozinski meant for them to be, the actions are taking place in a (somewhat) public forum.
This is much more of a gray area. My co-blogger Dan Solove has written thoughtful analysis about the extent to which people rely on the perceived anonymity of the internet. For most people, an unadvertised site at blogspot or myspace seems to be a semi-private room. And Judge Kozinski seems to have relied — to his detriment, ultimately — on the semi-private nature of the internet. It’s a mistake that’s easy enough to make.
But, even though it’s clear that Judge Kozinski thought he was in a semi-private room, he ultimately wasn’t. And no matter how common or reasonable his (wrong) perception may have been, he’s a federal judge. He’s not supposed to make mistakes like that; he’s supposed to absolutely know the distinction between public and non-public, isn’t he? He’s the one who has access to sealed court filings — do we really _want_ him to be able to claim he doesn’t know the distinction between lock-down private and merely out-of-the-way? As a judge, he has to know the difference between an actual locked gate, as opposed to a mere custom of non-entry. (As Bainbridge notes, “Kozinski long has been regarded as one of the smartest guys on the federal bench. Do we need to rethink that?”)
If Judge Kozinski had kept all of this material on his personal laptop, which was then stolen from him, the analysis would be different. If Judge Kozinski kept it all in a password-protected site, and someone hacked his site, the analysis would be different. But keeping it in a dusty corner of the public internet, and simply hoping no one notices it — that affects the story in important ways. It ultimately prevents Judge Kozinski from effectively raising the defense that the site was a purely private matter, which was kept under lock and key, and which has now been unfairly publicized.
Third, the disclosure of this material potentially compromises the judge’s role in a current case — it’s coming to light in the middle of a big obscenity trial that Judge Kozinski is presiding over.
Now, Judge Kozinski did not have control over the timing of the story. But he did have control over whether to voluntarily insert himself into a very visible obscenity trial, while simultaneously keeping a collection of sexually explicit images on a not-entirely-private computer. He decided, for one reason or another, to tap dance on the land mine — which makes it hard to profess surprise when it blows up.
At the very least, it seems to show very poor judgment. (Stephen Gillers told the LAT that Judge Kozinski’s actions were “seriously negligent.”) And judgment is a judge’s currency.
Fourth, this story raises unsettling follow-up questions that have surfaced in some of the news stories: To what extent is this related to broader patterns of workplace porn use by Judge Kozinski?
To what extent is workplace porn use problematic, in general? Well, I’m certain that many people view porn at work. (In some industries, it seems to be de riguer — I suspect most folks have, at some point in their lives, had to visit a local car mechanics’ shop that was adorned with pictures from girlie magazines.) And as a practical matter, I don’t really care much whether my auto mechanic, or my bank teller, is looking at porn on the job. As long as they properly fix my car or deposit my check when they’re supposed to, I won’t worry about what they’re doing at other times. (Their employer might.)
But a judge’s job is different. A judge makes rulings in cases like sexual harassment. And a judge’s public persona has to be beyond reproach. At this point, I have to suspect that former litigants in cases that were before Judge Kozinski are asking themselves, “was my case impacted by the judge’s porn habits?”
Wouldn’t you be? Let’s say you had a sex harassment case, obscenity case, privacy case, rape case — hell, all sorts of potentially related topics — before the judge. Wouldn’t you be wondering how the judge’s personal habits affected the outcome — and whether you could re-open that can of worms?
Or for that matter, if your female client lost her case: Is it because the judge hates women? Is it because he’s a misogynist who thinks women are like cows?
I’m not saying that those ideas are accurate. In fact, I strongly suspect that they’re not. Multiple people who I respect quite a bit have very high opinions of the judge, and I don’t believe that would be true if he were neglecting his duty in any significant way.
But those questions or concerns don’t have to be accurate to be damaging, do they? Even the _perception_ that the judge might think women are cows — that potentially undermines the integrity of the whole system, doesn’t it?
Which brings us to the broader point. Judge Kozinski’s actions affect the reputation of the judiciary, on which rest foundations of the state, like public respect for the rule of law. To the extent that this public disclosure undermines public confidence in the judiciary or the rule of law, it’s a very bad thing. There’s a reason for the outrage that’s expressed when the public hears about judges’ bad behavior. As Stephen Gillers told the LAT, “The phrase ‘sober as a judge’ resonates with the American public.”
Which is why Judge Kozinski’s decidedly unsober actions are so troubling.