Ninth Circuit Chief Judge Alex Kozinski is famous for his “ribald sense of humor,” as The Wall Street Journal put it, and The Mercury News (San Jose) calls him “an ardent supporter of the First Amendment” whose “rulings crackl[le] with distaste whenever there is even a hint of trampling on free-speech rights.” 

Those two traits collided last week when The Los Angeles Times reported the presence of sexually explicit images and videos on a Web site he and his family maintained for their amusement and that of a select circle of friends. According to various press reports, those images included two naked women hunched on all fours painted to resemble black and white cows; a video of a man with his pants partially lowered being chased around by an aroused donkey; and a video of a woman shaving her pubic hair. (Samples can be viewed here, in case the written descriptions do not um, suffice.)  

According to The Mercury News:  

Kozinski’s view that some of the material on his Web site was humorous does not surprise many who know him. His sense of humor is always on display, even in arguments before the court, where he often drops wisecracks on unsuspecting lawyers. When a popular legal gossip blog was taking votes for “Superhotties” of the federal judiciary several years ago, the not-so-hot Kozinski nominated himself – and won. 

The Wall Street Journal’s law blog refers to an “easy rider gag list” comprised of “journalists and others” to which Kozinski “periodically sends out bawdy jokes.” (Note to WSJ’s Nathan Koppel: It’s the “EZ Rider” gag list and his handle is “The Easy Rider”.)  One of those “others” allowed The Stiletto to publish excerpts of his invitation into the select group: 

From: The Easy Rider
Subject: WELCOME TO THE LIST!

I have added your name to the prestigious EZ RIDER GAG LIST.  You are now a member of an elite corps of trend-setters and opinion-makers, selected on the basis of our rigorous criteria (mainly the willingness to receive large quantities of puerile and tasteless humor).

You should start getting current distributions in the next couple of days.  …

You will note that some of the gags are marked “(P&T)” at the end of the “Subject” line.  This stands for Puerile and Tasteless – the kind of humor Mrs. Garibaldi used to pull your ears for when she found it scribbled in your third-grade notebook.  Feel free to pass on the gags I send you, but if they are marked “(P&T)” please PULL MY NAME OFF; I do not want to be sending P&T humor to non-consenting parties. …

Hope you enjoy.

Ciao.  AK 

The Los Angeles Times was tipped off to the Web site by disgruntled Beverly Hills attorney, Cyrus Sanai: 

Sanai said in a telephone interview with The Associated Press that he informed the newspaper about the pornographic images on the judge’s Web site. 

Sanai said he discovered the graphic material in December on Kozinski’s Web site, which he was monitoring as part of a long-running dispute he has with the 9th Circuit tied to his parents’ divorce case. After downloading the files, Sanai said he began contacting reporters at various publications in January in an effort to publicly expose them. 

Sanai said he hoped disclosure of the material in the media would bring attention to what he called widespread ethical problems on the 9th Circuit. 

Sanai has an ongoing feud with Kozinski over an obscure procedural matter in which – as Kozinski scathingly pointed out – Sanai has an undisclosed vested interest: 

Mr. Sanai has been trying for years to get the federal courts to intervene in his family’s state-court dispute, an effort referred to by a highly respected district judge as “an indescribable abuse of the legal process … the most abusive and obstructive litigation tactics this court has ever encountered.”  … [H]e and certain members of his family have hounded a state trial judge off their case; been held in contempt and sanctioned under 28 U.S.C. §1927 and had their ninth sortie to our court in the same case designated as “frivolous” and “an improper dilatory tactic” by the district court. A detached observer, Mr. Sanai is not.

In this context, one might ask the difference between “monitoring” and “online stalking.” Perhaps Kozinski should consider himself fortunate that Sanai didn’t go any further in his quest for revenge.   For his part, Kozinski acted quickly to contain the fallout from the controversy, immediately calling for an investigation:  

“I have asked the Judicial Council of the Ninth Circuit to … initiate proceedings concerning the article that appeared in … [the] Los Angeles Times. I will cooperate fully in any investigation,” the judge said in a statement Thursday. 

The Recorder reports that the matter could be kicked to a judge in another circuit to decide whether an investigation is warranted.” At issue:  

Whether Kozinski will ultimately be disciplined may depend in large part on whether his failure to keep the Web server private was just a mistake, or whether he recklessly made the images public, [University of Pittsburgh School of Law professor Arthur] Hellman said.  

If, for instance, Kozinski kept porn videos at home and invited friends to come over and watch, such behavior would hardly be actionable, the professor said. … 

To access the explicit photos, one would have had to know additional words to add into the Web address. On the other hand, Kozinski has long been known as a computer-savvy enthusiast who personally disabled the circuit’s Internet filtering systems as a protest to the court’s monitoring policy several years ago.  

Kozinski insists he never intended the images to be public, and his son took the blame for not password-protecting the site that he maintained on a private server that he owns. (The site has since been taken down.) 

Kozinski also recused himself from an obscenity trial over which he was presiding and declared a mistrial “in light of the public controversy surrounding my involvement in this case.” The high-profile federal prosecution involved filmmaker Ira Isaacs, who is accused of distributing obscene images depicting bestiality and defecation. 

While Kozinski is fond of off-color humor, he is not a fan of porn (or college basketball, for that matter), as evinced by this E-mail to a mutual friend: 

If you want to waste your life watching 10 guys run around aimlessly for two hours chasing a ball, that’s your personal choice. I suppose it’s no worse than watching porn, though both have the same voyeuristic appeal that I don’t understand. … I like sex too, but not watching other people doing it. 

While Isaacs and his attorney probably thought Kozinski would be more sympathetic to their case than they dared hope once the existence of the racy Web site became known, this E-mail exchange suggests otherwise.  

In any case, Kozinski told The Mercury News, “I do believe federal judges should have some latitude to be human beings in their private life.”  

Despite having outed him, The Los Angeles Times agrees (though the paper insists on adopting Sanai’s characteriziation of this material as depraved porn rather than tasteless jokes): 

“So what?” Not everyone may like it, but pornography is freely available on the Internet … Any adult has, and ought to have, the right to view those sites and to download those photos and videos – subject, of course, to the strictures of copyright law. People who don’t want to see such images can, and should, avoid them.Scolds who argue that judges should uphold a higher standard of decorum than the common citizen … should recall that the 1st Amendment is not limited to high-minded endeavors. 

For the time being, at least, this has to be the last word on the subject.

Note: The Stiletto writes about politics and other stuff at The Stiletto Blog, chosen an Official Honoree in the Political Blogs category by the judges of the 12th Annual Webby Awards (the Oscars of the online universe) along with CNN Political Ticker, Swampland (Time magazine) and The Caucus (The New York Times).

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