Criminal Justice

A Judge's Dirty Pictures: Funny, Just Gross, or a Resigning Offense?

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A federal judge has granted a request to delay an obscenity trial over which he is presiding so prosecutors can decide whether sexually explicit material on his semi-private website represents a conflict of interest. The defendant is Ira Isaacs, a self-described "shock artist" whose videos feature bestiality and defecation. The judge is libertarian favorite Alex Kozinski, chief judge of the U.S. Court Appeals for the 9th Circuit (doing a trial court rotation), whose interests seem to be a bit tamer:

Among the images on the site were a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal….

Kozinski, 57, said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, he blocked public access to the site.

The sexually explicit material on the site was extensive, including images of masturbation, public sex and contortionist sex. There was a slide show striptease featuring a transsexual, and a folder that contained a series of photos of women's crotches in snug-fitting clothing or underwear.

Kozinski told The Times that he began saving the sexually explicit materials and other items of interest on his website years ago.

"People send me stuff like this all the time," he said.

In turn, he said, he occasionally passes on items he finds interesting or funny to others.

Among the sexually explicit material on his site that he defended as humorous were two photos. In one, a young man is bent over in a chair and performing fellatio on himself. In the other, two women are sitting in what appears to be a cafe with their skirts hiked up to reveal their pubic hair and genitalia. Behind them is a sign reading "Bush for President."

"That is a funny joke," Kozinski said.

The judge said he planned to delete some of the most objectionable material from his site, including the photo depicting women as cows, which he said was "degrading…and just gross." He also said he planned to get rid of a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair.

Kozinski offered the Los Angeles Times two possible explanations for the especially offensive images: that he uploaded them by accident or that his adult son, Yale, uploaded them on purpose without his knowledge. Judging from the description in the Times, Kozinski is right that none of this stuff would be found to be obscene—certainly not in Los Angeles, where the trial is taking place. Kozinski, a First Amendment stalwart, can be accused of indiscretion but not of hypocrisy. In fact, the prosecutors evidently are worried that he will be sympathetic to the defendant because he sees nothing wrong with looking at dirty pictures. If he remains on the case after this embarrassment, of course, there's a possibility he would err in the opposite direction. But given his ability to distinguish between "funny" and "just gross," I'd say Kozinski has the right skill set to draw the arbitrary, subjective line between sexually explicit and obscene. Too bad that's up to the jury.

Concerned Women for America are (is?) demanding Kozinski's resignation, which makes me like him even more.

Matt Welch noted the Isaacs trial earlier this week.