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Kozinski: cavilling about cavorting

June 20, 2008 |  8:35 am

The Judge Alex Kozinski funny pictures story, which we last addressed in John Wright's Blowback "What porn says about the man," continues to draw comments. One reader wants to know what Kozinski knew and when he knew it:

In my reading of the Los Angeles Times extensive coverage of the Kozinski matter, the most important issue does not appear to have been raised at all: Was this First Amendment case randomly assigned to Judge Kozinski or did Judge Kozinski himself select the case assignment? If the answer is the latter, then this is an instance of judicial activism gone very seriously wrong.

How would he have conducted the trial? A judge has tremendous influence upon the outcome of a jury trial by his words and issuance of rulings from the bench. And, it is logical to assume that the tone and substance of the written opinion on this important case that Judge Kozinski would have likely issued following the trial are reflected in the personal web site content that he maintained for his own family to view. In his written opinion, Judge Kozinski would ultimately decide, as a matter of law, the definition of the word “obscenity.” If the case was then appealed to the Ninth Circuit Court and, thereafter, upheld on appeal, Judge Kozinski’s definition of “obscenity” would become binding authority precedent upon all federal and state courts within the jurisdiction of the federal Ninth Circuit Court of Appeals and persuasive authority precedent with all other federal courts. As a settled matter of appellate court jurisprudence, findings by a district court judge (and most especially those findings made by the Chief Justice of the reviewing federal appellate court) are given great deference in appellate court review.

If one man or woman with an extreme view on an important Constitutional issue can so easily manipulate the judicial process to the detrimental consequence of millions of citizens, there is a very serious problem within the judiciary that needs to be immediately, emphatically addressed!!!

David Lockmiller

From that great city to the north comes another take on what has become one of the central meta-questions (if a meta-question can in fact be central) in this story: What constitutes cavorting? (Is it somewhere on a continuum with capering and canoodling?)

The temptation for the LA Times reporter who initially reported the Kozinski story (and his editor) was the irresistible man bites dog quality to “Judge presiding over porn trial caught with porn”, and the related temptation to fudge the description of the porn on trial (characterized as vaguely fetish) and enhance the description of the Kozinski material (bestiality) in aid of drawing a parallel between the judge and the judged.

Now, with the benefit of hindsight and some helpful links, we are all (at least those of us who take the time to look beyond the sound bites) able to judge the alleged “porn” for ourselves.

The portrait of The Times that emerges is less than that of careful journalism.

The man “cavorting with” (a deliberately vague word choice by your reporter that can connote some form of sexual play) an aroused donkey turns out to be a humorous video downloaded from You Tube (which is where I watched it) of a laughing fat guy being chased around a pasture by a donkey with an erection. This is neither “porn”—since it is intended to make us laugh and not to arouse—nor is it “bestiality”.

The porn forming the basis of the prosecution over which Judge Kozinski was presiding when The Times story broke: Commercial videos of women having human excrement smeared on their faces. Not even remotely close to the ribald humor found on Judge Kozinski’s family web storage device.

When the suggested parallel between the judge and the judged disintegrates under critical scrutiny, the story is hardly newsworthy at all.

“Judge found with joke emailed pictures of naked ladies with body paint and other bawdy themes on his home computer”? Yawn.

There are temptations in every profession to cut corners and, unfortunately, The Times reporter (and his editor) fell victim to that temptation in this instance.

Fortunately, the legal Blogosphere—one of the few places Kozinski was widely known, came to the rescue and set the record straight. However, not before the story of the “porn judge” with images of “bestiality” on his computer was picked up by almost every media outlet around the world.

The real shame is, for those who had not previously heard of Judge Kozinski, the “porn judge” story will be their first and lasting impression. That harm, caused by a momentary journalistic lapse, cannot be undone.

Very truly yours,

STEPHEN R. GIANELLI
San Francisco, CA

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