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A.K. is A-OK!

June 13, 2008 |  7:02 pm

Larry Lessig gives a spirited defense of Chief Judge Alex Kozinksi and a big raspberry to the media coverage of his porn saga:

What I mean by "the Kozinski mess" is the total inability of the media -- including we, the media, bloggers -- to get the basic facts right, and keep the reality in perspective. The real story here is how easily we let such a baseless smear travel - and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage.

Here are the facts as I've been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski's son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.

Cyberspace is weird and obscure to many people. So let's translate all this a bit: Imagine the Kozinski's have a den in their house. In the den is a bunch of stuff deposited by anyone in the family -- pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family's stuff. He finds some stuff that he knows the local puritans won't like. He takes it, and then starts shopping it around to newspapers and the like: "Hey look," he says, "look at the sort of stuff the judge keeps in his house."

The editorial board defended the judge today, and my own view is that if Kozinski deserves condemnation, it's for being one of those people who forwards you "funny emails," a practice that was universally deplored when Bill Clinton was still in office. But that's always been the weird thing about "funny email" forwarders: Sometimes they're people who in person are perfectly hip and intelligent. They just turn into pushy, forced-laughter-demanding Mr. Hydes when they stumble down the dark and dangerous corridors of the interwebs without proper supervision. I've seen this phenomenon many times over the years.

If you haven't seen Patterico's collection of Kozinskiana, here it is. (Need I note that it's NSFW?) I think it's clear that Kozinski's original defense that he found these "funny" is obviously true, even if the material is obviously unfunny. There's certainly nothing in here that seems designed to stimulate the cloacae, which I think is still one of the critical distinctions in deciding what constitutes obscenity.

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