Balkinization: Judge Kozinski and thought control

Judge Kozinski and thought control

Andrew Koppelman

Ninth Circuit Judge Alex Kozinski has now called for an official investigation of his own conduct inhaving a website containing sexually explicit photos and videos. This is a smart move, since Kozinski has obviously done nothing wrong, and any responsible investigation will certainly so conclude. The whole ridiculous uproar is a window the pathologies of American culture’s relation to pornography.

The matter of Kozinski’s website has produced an enormous furor; one bit of evidence is the 860 comments (as of 11:30 a.m. Chicago time) that have been posted on the Los Angeles Times website since the story broke two days ago.

Kozinski doesn’t deserve this. As Larry Lessig explains here, all the judge did was maintain a private website that was vulnerable to entry by someone who could cleverly get past the safeguards that were in place. Lessig concludes:

“When it comes to government invasions of our privacy, we are (and rightly) a privacy obsessed people. We need to extend some of that obsession to the increasingly common violations by private people against other private people. There is nothing for Chief Judge Kozinski to defend because he has violated no law, and we live in a free society (or so he thought when he immigrated from Romania). A free society should feed the right to be left alone, including the right not to have to defend publicly private choices and taste, by learning not to feed the privacy trolls.”

Lessig is right, of course. But this conclusion raises some questions about the obscenity trial that Kozinski was presiding over when the story broke. (Kozinski, an appeals judge, occasionally sits by rotation in federal district court, and was randomly selected to run this trial.) The trial involves videos that depict bestiality and defecation. It’s not clear why people are turned on by that stuff. But their sexual fantasies seem harmless enough. The really scary people are the prosecutors, who feel entitled to use the criminal law to police other people’s sexual thoughts. The apparently very large number of people who feel entitled to regulate Judge Kozinski’s private viewing – some have even called for him to be removed from the bench! - scare me just as much.

As I explain here and here, trying to regulate citizens’ moral character by the regulation of pornography is a misconceived enterprise, focusing on illusory evils in a way that is likely to encourage us to ignore real ones. L’affaire Kozinski is an illustration: enormous resources pour into the public pillorying of a harmless and indeed admirable person, in the illusion that this somehow helps to maintain decent moral standards. (Incidentally, I have never met nor corresponded with Kozinski.) There is a moral standard at issue here. The pertinent element of civic virtue that we haven’t seen, but need to see more of, is the capacity to tolerate our fellow citizens’ weird sexual proclivities, and not to regard those proclivities as more important than they really are.

Judge Kozinski will almost certainly recuse himself from the obscenity trial. Having recently been subject to scrutiny and embarrassment on the topic of pornography, he’s more prone to having to having his impartiality questioned than other judges. But the deeper argument for recusal is that someone who has been through the circus that he’s now enduring is unlikely to have much enthusiasm for thought control, and so is a poor candidate for administering it.

Posted 1:48 PM by Andrew Koppelman [link]

Comments:

defense of Ninth Circuit Judge Alex Kozinski's collection of bestial and child pornography on his personal and private website that scandalizes many of us, gets this inane comment from Koppelman:

The pertinent element of civic virtue that we haven’t seen, but need to see more of, is the capacity to tolerate our fellow citizens’ weird sexual proclivities, and not to regard those proclivities as more important than they really are.

Bullshit! The very people who wish to eliminate torture, defend habeas corpus, and defend civic virtue, want to defend "torture porn, child porn, bestiality," under the presumption that "weird sexual proclivities" are merely a matter of taste, not values. Of idle curiosity by "weird" people doing "weird" things. The appropriate word is not "weird," it is depraved.

Perhaps the legal scholar should read and view Standard Operating Procedures, the book and film documenting the real concerns many of us have over Abu Graihb, Gitmo, etc. Sabrina Harman, the photographer of Abu Graihb, told Torture Team: "You could almost see their dicks get hard as they got new [torture] ideas." Shall we justify Abu Graihb as a "weird sexual proclivity?"

"The first thing human beings do when the unspeakable becomes standard operating procedure is to change the words," writes Ian Buruma in the New York Review of Books. "Himmler was well aware that what he was asking from his SS men was not normal. That is why he told them to steel themselves against any feelings of humanity that would hamper them in their necessary tasks." "There is a kind of pornographic quality to many of the [Abu Graihb] pictures," captured by Harman. "Depraved" becomes "weird." "Genocide" becomes "political conflict by force of elimination." "Torture" becomes "enhanced interrogation techniques." Name speak of the unspeakable becomes "acceptable" dressed in different words.

Do not misunderstand me. I am not opposed to explicit sexuality on film, commonly known as "pornography." The line I'm drawing is not at viewing explicit sexuality, but deviance-as-sexuality. It's a difference of immense significance. Bestiality is not normal. Kiddie porn is not normal. And torture porn is not normal. And "normal" in my sense of "normative," that is, a standard we cannot accept and retain any sense of decency for humanity, much less ourselves. We cannot value violence as "art." We cannot value rape and torture as "freedom of expression." Mr. Koppelman's naming human sexual depravity as "weird sexual proclivities" only conceals what won't be concealed. The violence will not permit it.

Watching adults molest children; watching women fucked by donkeys; watching women cut and sliced for male sexual thrills; watching objects enter the rectum; watching the whipping and beating of men for a "hard on." Each and all is depraved. And a depravity that Koppelman wants to excise for some lofty "principle of tolerance." But tolerance of the intolerable or intolerance is no liberal value, but a violent contradiction of evil named as good, as wrong named as right, as depravity named as weird. It is the slide into a slippery slope that begets Himmlers, Abu Graihb, rape, and sexual violence.

Again, facts do not values make, and values do not facts make. The fact that a high court official collects photography of "weird sexual proclivities" which is code for "depraved" is not a liberal value, but a shameful depravity. Human sexuality comes in many exquisite forms, but not with other species, not with innocent children, and not as violence. And if Koppelman and his legal cronies cannot distinguish the difference, then he has a larger authority to answer to: Human Decency.

Would any of us want to come before Judge Alex Kozinski in a rape case? In a child molestation case? In a torture case? I rest my case.

# posted by

Anonymous : 2:56 PM

I must admit I'm scratching my head over this one. It seems more embarrassing than anything else. But most of all, I'm mystified by this notion that, because of the porn, Judge Kozinski can't preside over an obscenity trial. Can judges who receive speeding tickets not sit on the bench in traffic court?

Every time you think you know the world you're living in, it goes screwy on ya...

# posted by

Lindy222 : 1:38 AM

Can judges who receive speeding tickets not sit on the bench in traffic court?

Kozinski isn't accused of having done anything illegal, so the better analogy would be, Can judges who drive not sit on the bench in traffic court?

# posted by

Henry : 5:35 AM

True. I see your point. But driving and not sitting on the bench isn't quite the appropriate analogy either. We need to come up something that's embarrassing, perhaps, or subject to disapproval by some portion of the public, but not illegal. Hmmm...

Okay, how about this? Can a woman jurist who's had an abortion hear a case that involves reproductive rights? Should it be a threshold requirement that she not have had an abortion before she can hear the case?

# posted by

Lindy222 : 12:26 PM

a violent contradiction of evil named as good, as wrong named as right, as depravity named as weird.

This is a bizarre list coming from someone noted for a high standard of discourse, especially a near-fanatical devotion to strong logic.

Right:wrong::depravity:weird?! Next you'll start using the slippery slope argument..ohh...ouch.

And "normal" in my sense of "normative," that is, a standard we cannot accept and retain any sense of decency for humanity, much less ourselves.

Right, there are some values that are sacrosanct that, once violated, stain more than our own reputations--they affect our family, our community, etc. And I agree that the examples you mention violate such values, even if I doubt that such violation has occurred in the Kozinski matter. It's worth noting that such values are open to moderation and change; a slight temporal or geographical shift might put homosexuality in the same category as bestiality: definitely not normal, and more depraved than "weird."

# posted by

PMS_CC : 2:50 PM

I wonder? Is poor judgment of values in one area of life an analogous association to poor judgment of values in another association? That analogous reasoning holds. I don't have to "be capable of abortions" to have an educated decision about the subject. But once I have demonstrated poor judgment in one aspect of life, the inference that poor judgment affects many aspects of life, is widely accepted inference.

But, if I repeatedly have resorted to abortions, rather than to the choice of using cheaper, safer, and healthier means of contraception for avoiding pregnancy, my poor judgments in such a simple and basic decision making raises the question of my competence in more complex decision making. If the simple confounds, what does the complex?

# posted by

Anonymous : 5:45 PM

Reason.com has a good comment:

Nonetheless, we're still hearing calls for Kozinski to recuse himself from the obscenity case he's about to oversee. I hope he stands his ground. There has been no shortage of free-speech trials in which the presiding judges had a moral objection to essentially innocuous material. I don't see any reason why such a case shouldn't be heard by a jurist with a history of tolerance.

# posted by

Henry : 5:45 PM