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News judgments about Kozinski's porn

By Mark Obbie

Did the LA Times practice good journalism by outing 9th Circuit Chief Judge Alex Kozinski's porn stash in this blockbuster story by Scott Glover? That's a question asked in a number of ways by various bloggers, most extensively so far by How Appealing's Howard Bashman. The key question is whether it would have been a story if Kozinski weren't presiding over an obscenity trial at the time -- and whether it matters that the images and videos were on a private, not government, server and were not demonstrably obscene by legal standards. According to Patterico's Pontifications, a California lawyer with a long-running grievance against the 9th Circuit has claimed responsibility for tipping the Times. That lawyer, Cyrus Sanai, claims that he has been pitching the story since January, without success, to California's competing legal newspapers, The Recorder and Daily Journal, and to The Wall Street Journal. The Times itself, he says, sat on the story for months, possibly as a result of a personnel change (the original reporter he claims to have pitched, Henry Weinstein, took a buyout in the meantime). What I haven't read is precisely when Kozinski's role in the obscenity trial became known. Once those papers knew of his role in that trial -- and surely that was before yesterday, when the trial began and the Times published -- they made a mistake by not revisiting their earlier decisions not to publish. But back to the harder question: whether it's news without the obscenity trial factor. I say yes. Kozinski is a high-ranking judge whose court hears more obscenity cases than the current one. Controversy over the line between erotica and obscenity is legal news, and Kozinski's misfortune provides a teaching moment to explore the current state of the law. Kozinski has a track record as a critic of government intrusion into personal use of the Internet. Publishing a story without the trial as a news hook would be extremely uncomfortable, but I would have green-lighted it and placed the revelations in the context of Kozinski's disputes with Sanai and over Internet use. As for the Times, there should be no question that it did the right thing under the circumstances.

Full post as published by Lawbeat on June 12, 2008 (boomark / email).