Last month, the Texas Appellate Law Blog had a great post on the (believe it or not) benefit legal blogs offer to the legal landscape at large. I would add one other entirely unexpected yet undeniably valuable benefit to that list as well, as evidenced by the media fracas over Chief Judge Alex Kozinski’s recent travails.
I have purposefully stayed away from writing about this story because it struck me from the beginning as likely a bogus “scandal.” I was wrong to do so, but not because the story had any merit, but because it turns out the blogosphere actually served to get the truth out.
In brief, the L.A. Times published a story at the urging of a disgruntled litigant who—as is frustratingly all too common—insisted on lambasting the four trial judges and at least six appellate justices (including Chief Kozinski) who held against him of bias and judicial misconduct. Riiiight. The L.A. Times story revealed that Chief Kozinski had various files stored on his family’s server that the paper framed as pornographic and even as examples of beastiality but that were really just so much ribald and off-color humor.
And some of the files contain what is basically—if what I saw at Patterico’s site is representative—visual sexual humor. There are some spoofs, for instance of the MasterCard commercials, some puns, some absurdities. Kozinski, or someone in his family, apparently got them sent to him, and decided to save them alongside a bunch of other stuff he found interesting or amusing.
* * *
Jeez, folks, Kozinski has a quirky sense of humor, and keeps some joke pictures and videos on his computer rather than throwing them away. I’m sure they aren’t the kinds of things some people would enjoy seeing. But he wasn’t trying to show them to those people! He was just minding his own business, keeping some files on his own private server. And now it’s a national news story.
Chief Kozinsky’s wife put it even better:
The reporter describes the handful of comic-sexual items as follows: “the sexually explicit material on the site was extensive.” He then includes graphic descriptions that make the material sound like hard-core porn when, in fact, it is more accurately described as raunchy humor.
* * *
The fact is, Alex is not into porn—he is into funny—and sometimes funny has a sexual character.
So, the only real controversy at issue as a result of all the hubbub was that Chief Kozinski was presiding over an obscenity trial when the story broke. However, any traction that valid potential conflict rightly had was quickly defused when, within just a few days of the story’s printing, Chief Kozinski recused himself, declared a mistrial, and called for an investigation into the controversy surrounding his stored web files.
Which, after much exposition, brings me back to my original point. If one were to have only read the L.A. Times story, you would have thought the Chief of a federal circuit was keeping porn on his work computer and making it available to the public. It was not until the legal blogosphere started investigating further that it came to light that the evidence upon which the story was based had been shopped around to several media outlets for months by a disgruntled litigant, that the files in question were not really pornographic at all, and that the “website”—really a server subdirectory—upon which they were stored was not meant to be publically accessible.
So, after entirely too much prologue, my point is that the legal blogosphere can even—in rare instances—be useful in combatting slovenly reporting by major news outlets that only serve to tar and tarnish the reputation of non-political actors as are most appellate courts and jurists. Chief Kozinski himself has now recognized that the legal blogosphere may serve at least one useful purpose—providing fuller context and facts after a media hit-piece has been released—after having once famously derided the utility of legal blogs:
I hate ‘em. Hateful things. . . . I just think it’s so self-indulgent, you know. Oh, I’m so proud of what I’m saying, I think the world instantly wants to know what I’m thinking today. People wake up thinking, hmm, what does this person, whoever the blogger in question is—I wonder what great thoughts have come into his mind this morning that I can feel myself edified by. I can’t really have breakfast, really enjoy my day until I hear the great thoughts of Howard Bashman—I don’t think so. I go for months without ever knowing what Howard has to say. So I don’t know. I find it sort of self-indulgent. And I find it so grandiloquent.
By the way, Chief Kozinksi is absolutely correct on this point: all of us legal bloggers are—to some extent or another—at least partially self-absorbed and hubristic. Why else spend valuable billable time opining on topics about which no one asked our opinion?
On a much smaller scale, I have felt forced to use this blog in much the same fashion as Patterico and Above the Law have used theirs on this matter to combat the all too numerous instances of the Texas media blindly parrotting the tripe constantly spewed forth by Texas Watch. I have no idea if my hopefully somewhat-cogent rantings have had much of an impact, but it is my pleasure to stick up for our vastly-underpaid and supremely-talented judiciary when it is ethically restrained from responding on its own to such baseless bilge favored by Texas Watch and now the L.A. Times.
Thx to Above the Law and Patterico’s Pontifications
June 18, 2008 at 11:19 am
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 sound bites) able to judge 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 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 a hard-on. This is neither “porn”—since it is intended to make us laugh and not to arouse—nor is it “bestiality”.
The porn on trial? Commercial videos of women having human excrement smeared on their faces.
When the suggested link between the judge and the judged disintegrates, 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 Blogosphere—one of the few places he was 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 heard of Judge Kozinski, the “porn judge” story will be their first and lasting impression. And that harm, caused by a momentary journalistic lapse, cannot be undone.
June 18, 2008 at 11:47 am
Stephen,
I agree completely with your comment. I would only add that, while the PR nightmare for Chief Kozinski will undoubtedly live on in some form or fashion for perpetuity, the actual effects of it upon him, the Ninth Circuit, or the litigants who will be adjudged by him will likely be minimal.
First, the record is now clear and will hopefully be formally noted by the circuit judges reviewing this matter. Second, any half-serious legal practitioner knows of Chief Kozinski’s documented and unassailable legal brilliance (so no great harm if a Perez Hilton aficionado thinks he digs fetishistic porn). Third, forthcoming motions to recuse Chief Kozinski will not be taken seriously because of the limited subject-matter applicability of this circumstance and the Chief’s own highly praiseworthy reaction to it (recusing, declaring a mistrial, and publically calling for an investigation). Last, he’s got a lifetime appointment, and based on these meager facts, it would be hard to fathom even a superficially political body like Congress successfully impeaching him on these grounds.
All this said, you’re absolutely correct the L.A. Times’s misleading and potentially libelous reporting very well may be shown to have damaged Chief Kozinski or his family in a subsequent civil suit (depending of course on to what degree he is determined to be a “public figure”). I know one thing, if Chief Kozinski was coming after me civilly, I’d settle long before his legal arguments were considered by a court of law or a sober appellate panel. You’re just not going to win in a battle of legal acumen with him, and shouldn’t even make the futile attempt to do so.
-020033
July 8, 2008 at 3:06 am
It’s amazing sometimes what people will do
November 18, 2008 at 5:47 pm
Since the thing that seemed to have driven Mr Sanai over the edge was a divorce proceeding in the State of Washington, where he alleges some Federal judge assigned the husband’s(A Sanai) accountant, in some judicial help capacity, to work up the financials( flashing conflict alarms, big RED lights flashing conflicts), could some look into the matter, and does a lexis(search) have a long trail on that ? I could of course look, into that , but I rather not spend valuable billable hour time,(our time is so precious ins’t it down to the every 10 minute sections) when I could be looking at photo’s of a donkey chasing a plaintiff to mount him.
But, is it funny, apparently so, so many of the 9th Circuit Clerk’s on the coast have come to the defense of Kozinski so much so that the band width charges shot up in an off the chart billable fees/ costs on over 90,000 hits on porno sites from the federal courts.
It is amazing the pack of wolves attacking Cyrus, like some pool of sharks, all swimming, crusing, in some frothy waters.
Yes, the federal government bars reimbursment for birth control to some, but is most liberal in underwriting the tab on porno excursons in federal court buildings–as administered by some Court Administrators. More, let the suckers –taxpayers pick up th tab(on the cyber sex trips).
So, to protect all the porno vouyers, Alex tampers with evidence, some calling that the destruction of federal property, like the Court Administrators. But they are just regarded as b-crats, nags, by Lord Alex, the libertine of L A.
Why did Kozinski weight in on the divorce of a couple in Washington, in out of court matters, statements, that seems odd.
How much money was at issue in the Washington divorce, etc…..?
I know that question may not grab some’s interest since it only about money and not sex, but what is it about the sex life of so many Chamber Clerk’s on the volume of net traffic to sex sites… ?
My my, the Federal court clerks and the
culture it speaks of, lately. Most telling, in more ways, than one.