Legal Commentary

I'm home with a flu-like bug today, but I  thought it worth posting a quick link to this (for those who have not already read about it elsewhere): (HT TPM)

A closely watched obscenity trial in Los Angeles federal court was suspended Wednesday after the judge acknowledged maintaining his own publicly accessible website featuring sexually explicit photos and videos.  Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, granted a 48-hour stay in the obscenity trial of a Hollywood adult filmmaker after the prosecutor requested time to explore "a potential conflict of interest concerning the court having a . . . sexually explicit website with similar material to what is on trial here."

In an interview Tuesday with The Times, Kozinski acknowledged posting sexual content on his website. 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. After the interview Tuesday evening, he blocked public access to the site.

Kozinski's videos sound pretty tame to me, especially in comparison with the defendant's.  This seems like a desperate move by a prosecutor not too happy about being in front of a judge who is not likely to be sympathetic to obscenity prosecutions.  One of the great things about Kozinski is that he is not a hypocrite about these things.  As TPM notes:

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.

Lessig has also weighed in with a well-taken defense of the judge:

His son set up a server to make it easy for friends and family to share stuff -- family pictures, documents he wanted to share, videos, etc. Nothing alleged to have been on this server violates any law. (There's some ridiculous claim about "bestiality." But the video is not bestiality. It lives today on YouTube -- a funny (to some) short of a man defecating in a field, and then being chased by a donkey. If there was malicious intent in this video, it was the donkey's. And in any case, nothing sexual is shown in that video at all.) No one can know who uploaded what, or for whom. The site was not "on the web" in the sense of a site open and inviting anyone to come in. It had a robots.txt file to indicate its contents were not to be indexed. That someone got in is testimony to the fact that security -- everywhere -- is imperfect. But this was a private file server, like a private room, hacked by a litigant with a vendetta. Decent people -- and publications -- should say shame on the person violating the privacy here, and not feed the violation by forcing a judge to defend his humor to a nosy world.