LOS ANGELES - Our recent article on the mainstream media's misanalysis of Judge Alex Kozinski's Website seems not to have reached the photons of Pepperdine Law School associate professor Barry McDonald's computer screen.
"Despite not knowing all of the facts surrounding Kozinski's incident, nor those involved in the obscenity trial he was judging, I am confident he made the correct and honorable decision to recuse himself," McDonald writes in his response to John Stagliano's well-taken Tuesday "Dust-Up" entry, substituting faith for research on the issue. (After all, it was One of His Own, L.A. prosecutor "Patterico," who cut through the horseshit surrounding the LA Times' accounts of what was on the site.)
The simple truth is that, no doubt feeling that his conservative roots were threatened, Kozinski, a Reagan appointee to the Ninth Circuit Court of Appeals, got scared when Obscenity Task Force prosecutor Ken Whitted brought up the issue of Kozinski's Web site in court. Apparently, Kozinski was unaware of how tame the material on his site was, and in what may have been an attempt to cut off public discussion of the subject, "fired" himself from the Ira Isaacs obscenity trial over which he was presiding, leaving the charges against Isaacs in legal limbo until a scheduled status hearing in September.
But after "hav[ing] every confidence" that Kozinski correctly applied the proper recusal standards to himself, McDonald states, "Second, the nature of obscenity trials makes them especially sensitive to recusal issues. In these cases, a judge is expected to rule on the lewdness and offensiveness of sexually explicit material as it relates to an average person's view. Consequently, there at least appears to be an element of subjectivity regarding these questions that does not exist to the same degree in other cases. Kozinski was undoubtedly aware of this and was commendably sensitive to the notion that people might view him as being biased - despite the fact that he would have judged the case as fairly and objectively as he has all others."
While it's certainly appropriate for jurists who have the appearance of partiality to remove themselves from cases where that partisanship may become an issue, Kozinski was hardly in that position. The majority of the American public looks at sexually explicit material, as can be deduced from the 921 million sales and rentals of adult DVDs in 2006, the last year for which figures are available, and even more would have no problem with others looking at it even if they didn't themselves. Therefore, Judge Kozinski's minor foray into titillating Web posting hardly puts him outside the mainstream of American life.
As Stagliano notes in his "point" piece, "It would have been so refreshing if Kozinski had said, 'Yeah, I like to look at a racy pictures sometimes; so what? Mind your own business.' But that would be asking too much of a public figure. Former New York Gov. Eliot Spitzer, Bill Clinton and basketball announcer Marv Albert have all had to deny that they enjoy their sexuality."
However, it is exceptionally troubling that McDonald claims that "the nature of obscenity trials makes them especially sensitive to recusal issues." Why? Is it because there are no legitimate, falsifiable (in the scientific sense) legal standards by which a jury can determine the obscenity or protected character of any given sexually explicit work? Is it because, since so few people in modern society are able to openly discuss their own sexual preferences and practices with even their friends and neighbors (or sometimes even their spouses!), anyone who allows the slightest crack in the door to his/her own sexuality must therefore be considered too biased to judge the preferences and practices of others? Stagliano says it well: "But we are dealing with sex here, and a judge, I guess, is not allowed to have a sexuality. In all fairness, then, any judge who believes in a religion that views porn as immoral must also recuse himself from taking any case that involves porn."
Recall also that it was the jury that would have judged the facts of Isaacs' case; Kozinski would only have explained to them the applicable law. But for McDonald, Kozinski's mild sexual interests would have added "an element of subjectivity ... that does not exist to the same degree in other cases... If there is any legal bias toward pornography, it has been in the U.S. Supreme Court's development of obscenity standards. Its view is that pornography so lewd and offensive that it is obscene deserves no 1st Amendment protection because of its low 'social value as a step to truth,' while non-obscene pornography lies at the 'periphery' of 1st Amendment concerns."
Leaving aside for a moment the Supreme Court's "judicial activist" arrogance at having shoved some forms of speech to the "periphery" of First Amendment protection, and its clear bias against discussions and depictions of sex as "step[s] to truth" - tantric yoga no doubt having less "truth" to it than fundamentalist sermons on the hellfires awaiting masturbators and unmarried non-virgins - McDonald apparently is unaware of the can of worms he's opened up with that statement. As Isaacs' attorney Roger Jon Diamond recently pointed out, "Does that mean I now get to inquire into the religious convictions of any judge who would preside over an obscenity case, and get to reject any whose tenets say that looking at pornography is a sin?" The logic has to cut both ways or the system is monumentally unfair.
"Remember, the 1st Amendment was adopted mainly to prevent the government from squelching political dissent and change," McDonald claims, perhaps investing his use of "mainly" with more significance than did the Founding Fathers, considering that "freedom of speech" is unqualified in the Constitution.
Moreover, we might ask, why was the Ninth Amendment adopted? It reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Wow; like a right not to spend years in the slammer for creating sexually explicit material with and for consenting adults that harms no one?
Finally, McDonald recommends that Stagliano take his "beef ... with legal objectivity toward porn" and "direct it to the Supreme Court's development of our substantive constitutional law regarding obscenity, not one judge's faithful implementation of judicial recusal standards." Aside from the simple response - "Why not both?" - the mere fact that the Supreme Court has roughly 90 years' worth of practice in violating the clear wording of the Constitution regarding sexual speech doesn't mean it has a valid point when it does so; it only means that when the Supreme Court renders a decision, there's no higher legal body to which to appeal it; only American citizens who, as jurors, could stop this constitutional violation in its tracks by automatically voting "not guilty" for any defendant charged with "obscenity."
Before leaving this topic, though, we should point to Stagliano's expression of faith in his fellow sexual artists: "When I started making porn, the industry was filled with people who were in it only to make money. From company owners to the film crews to the salesmen, there were few people who would openly admit that they personally enjoyed the stuff. In fact, few of them actually did enjoy it. So when I came along openly admitting I loved the stuff, and especially when I was able to express this love in my gonzo-style filmmaking, the world of porn started to change. Today, the new young pornographers I meet wear as a badge of honor their devotion to the art form of porn. The VCR and now the Internet have made career choices in my business plentiful and much more acceptable, at least to a growing group of courageous Americans. I am very proud to have been a part of this."