The Volokh Conspiracy
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Should Judge Be Censured for Posting Nude Pictures on "Dating Website for Couples"?
"Judge Clark has embarrassed us .... And this may be the unforgivable sin of our day."
In Matter of Clark, the Kansas Commission on Judicial Performance had publicly censured a Magistrate Judge who had posted nude pictures of himself on a "dating website for couples"—something the Commission concluded violated Canons that mandated that "Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives" and that they not "demean the judicial office."
The Magistrate Judge had since retired, and didn't challenge the discipline, so the court concluded that it should "accept the [retired judge's] stipulations and take no additional action." But Justice Caleb Stegall wrote an interesting concurrence (joined by Justice KJ Wall), which struck me as worth quoting at length:
[I]n my judgment, while Judge Marty K. Clark's behavior was embarrassing, foolish, and grossly immoral, it was not a violation of any of our rules governing judicial conduct. Because—let us be clear—the behavior we are talking about consists entirely of the lawful, private, consensual sexual practices of Judge Clark. Behavior that was only discovered by the Examiner and the Commission because it was disclosed by a disgruntled participant in that behavior.
To be sure, there was a time in our society when private, consensual sexual practices were not deemed off-limits to government regulation. For good or ill (or good and ill), that time has passed. Through a slew of judicial decisions, society has by now clearly decided that sexual conduct between consenting adults is none of the government's business. Indeed, the scope of private behavior protected from government regulation must be broader than simply sexual conduct….
Rapid advancements and use of technology, however, have outpaced legal protections for privacy. Surveillance of all kinds (including the kind of self-surveillance practiced by Judge Clark) abetted by ubiquitous high-powered video and audio recording devices—along with the ease of publication and distribution offered by digital social media—has allowed for substantial increase in governmental and employer intrusion into the private lives of individuals.
We have become a society not so much subject to one all-powerful watcher but to the whims of a thousand-and-one watchers. Indeed, "it isn't some stern and monolithic Big Brother that we have to reckon with as we go about our daily lives, it's a vast cohort of prankish Little Brothers equipped with devices that Orwell, writing 60 years ago, never dreamed of and who are loyal to no organized authority." By turning "our lenses on ourselves in the quest for attention by any means" the "invasion of privacy … has been democratized." A truth Judge Clark now knows in full.
The norming of 24/7 surveillance can lead to acceptance of the fact as not just a nuisance but as a positive good. And as many have observed, we are now well into the end game of surveillance which may be described as a kind of collusion between big and little brothers. Governments have been unable to resist utilizing the vast store of data being collected by little brother to monitor the citizenry. "'[L]ots of surveillance data moves back and forth between government and corporations. One consequence of this is that it's hard to get effective laws passed to curb corporate surveillance—governments don't really want to limit their own access to data by crippling the corporate hand that feeds them.'"
I am reminded of the truth that the "greatest dangers to liberty" are often found "in insidious encroachment by men of zeal, well-meaning but without understanding." And so reminded, wisdom councils that big brother himself is not obliged to act on every scrap of tittle-tattle that comes his way from ill-meaning little brothers. This is the curious situation we now find ourselves in.
If the information about Judge Clark generated by this self-surveilling system genuinely showed sexual conduct that interfered with the ethical performance of his judicial duties, the Examiner, the Commission, and this court would have a duty to act on it.
But Judge Clark's actions did not have any real, factual connection to his role as a judge. So what is really going on? In short, Judge Clark has embarrassed us—the Examiner, the Commission, this court, the judiciary, and the wider legal community. And this may be the unforgivable sin of our day. The complex and ubiquitous shaming and shunning rituals our society has concocted and enacted in recent decades may best be understood as an elaborate response to collective embarrassment. Scapegoating and "cancelling" the most embarrassing among us becomes a quasi-religious way of purging collective shame and guilt.
The Examiner and panel in this case have acted as grand inquisitors on behalf of an allegedly scandalized public. The Examiner's filings below passionately decry Judge Clark's behavior—quoting In re Singletary (Pa. Ct. Jud. Disc. 2012), for the claim that the public does not want its "judges to be conducting photo sessions featuring the judicial penis and then to be sending the photos over the electronic airwaves to another person—thereby placing that person in a position to further publish the photos to anyone he or she may deem deserving." At oral argument, the Examiner likewise denounced Judge Clark's behavior. Judge Clark was described as "grooming his private organs for purposes of taking a photograph … not for him to look at himself" but to "give to other people." Which "in my opinion," the Examiner continued, "does nothing to enhance the integrity of the judiciary." …
So who has really been scandalized? As with the excessive rhetoric, the legal justifications given by the Examiner and panel in this case are thin cover for the naked embarrassment—and the accompanying need to close ranks and restore a facade of judicial superiority—felt by all.
For example, the panel insists that the aim of the Code and of discipline under the Code is to ensure that judges remain "the role models of our society" who "exhibit behavior" in their "personal lives" that ought to be "emulated by others." This "unique role of judges" requires every judge to understand that "the black robe places a higher standard upon them" to uphold the "moral compass of our society" or face discipline for failing to do so. What is this undefined higher standard? Is the panel suggesting that judges have an obligation to have only traditional sexual relationships? Do we really desire a morally stratified society in which judges occupy the supposed highest and best strata while mortals live according to a "lower" standard? Is this what the Code demands?
The panel's understanding of the "role of judges in our society" partakes of a certain kind of judicial rhetoric afoot today—the rhetoric of judicial supremacy. There is a real effort by some to situate the figure of the judge as an idealized kind of ruler; set apart and consecrated to a holy and inscrutable order of something called "law"; worthy to be obeyed, in significant part, because of his or her moral and intellectual superiority. But in a society dedicated to the rule of law, judges are not a priestly class of elite rulers. Judges are not even supposed to be the role models of society. To think this is to take the myth of judicial supremacy to its most absurd conclusion.
Today's case illustrates that one consequence of elevating judges to the "supreme" arbiters of society is that we will endure bizarre replays of age-old religious controversies concerning the qualifications of priests to administer religious rites. Or consider another, more mundane example—the panel's finding that Judge Clark's picture project was "public" simply because those pictures could one day be made public. This definition of "public" cannot withstand the application of either common sense or the law. In fact, what happened here looks a lot like what our Legislature has recently outlawed as "revenge porn" or "nonconsensual pornography." It appears to me that the Examiner and the Commission have unwittingly made themselves accomplices in one man's effort to exact revenge against Judge Clark by "disseminating" his nude photographs and images of his sexual activities in which he had an expectation of privacy.
Would the Examiner and panel ever have used such disparaging and salacious terms along with such intimate and detailed descriptions to characterize the lives and practices of other, more socially accepted, sexual minorities? Would the Examiner file a case on such questionable legal grounds, for example, based solely on intimate photographs of a Kansas judge handed over by a spurned homosexual lover? What about photographs of consensual but unconventional sexual practices engaged in by a heterosexual married couple given to the Examiner by one of the spouses after a nasty divorce? Or is this simply the age-old game of the powerful scapegoating people who have no real constituency or friends in high places?
I may be an unexpected defender of "consensually non-monogamous" judges—and I have no difficulty condemning adultery as morally destructive—but above all else, the rule of law condemns the arbitrary and unaccountable power of the state to pick winners and losers, reward friends and punish enemies, and protect its own interests above the public's. Such abuses and the hypocrisy they reveal are the real threat to the legitimacy and integrity of the judiciary. The rule of law is not so weak it will collapse in the face of a few bedroom peccadillos or the occasional clownish, embarrassing episodes of official misadventure. But it is not so strong it can long endure the misrule of arbitrary double standards—which amount to a special kind of breach of the social contract.
An objection may be quickly raised that the moral content and quality of the personal character and integrity of our public officials matter. And more, that if a person becomes a public official like a judge, that person has agreed to make his or her private life a matter of public interest. There is real truth to this. But it is a grave mistake to think that either the Commission, the Examiner, or this court represent the mores of the public—mores which, as every honest political observer would admit, prove to be inscrutable at times. Indeed, even if such mores were knowable, by what right would we claim the authority to enforce the moral qualms of the public of its behalf?
None of this means that within our system of government public officials are immune from either criticism or sanction for their private behavior and personal character. They are not. Judges are not. There are two clear and available political means for the public to express its own moral qualms about a public official's private behavior and character—sexual or otherwise. At the ballot box and in an impeachment proceeding.
Judge Clark could easily and correctly have been unseated by his constituents had they determined that his character was not of the kind they desired for their judges…. And there is yet a third tribunal of judgment on the conduct of judges—the legislative tribunal of a court of impeachment….
Nothing in my opinion today should be read to conclude that I think Judge Clark should have remained a judge. My judgment is more limited—if a public official is to be removed from office or otherwise sanctioned for lawful private conduct unrelated to the performance of his or her public duties, that sanction must be procured through political means. It is not our role to decide for the public what counts as sufficiently acceptable character for the job.
We are all sinners. Acknowledging this truth is one of the pillars supporting the rule of law itself. Judges are not "angels"—to put it in Madisonian terms. See The Federalist No. 51 (Alexander Hamilton or James Madison) ("If men were angels, no government would be necessary."). And the purpose of the Code of Judicial Conduct is not to protect or project an illusion of judges as angelic demigods or Mosaic lawgivers. It is quite the opposite—to guard against the very real danger of judges as ordinary human beings tempted to abuse their power in vain and self-interested ways. The Code protects very practically against official and public misdeeds—it is not concerned with preserving judicial authority grounded in moral superiority. To the contrary, the legitimate exercise of judicial authority flows from the people acting under a constitutional process, not from any innate moral qualities possessed by the judge.
In this country, none are born or entitled to rule due to any real or imagined superiority. To suppose otherwise is to sow the seeds of passivity and apathy on the one hand (a people not given to the virtue of self-government because it is not expected of them)—and cynicism and disillusionment (when the lie is inevitably exposed), on the other. For indeed, no judge held to that standard could withstand public scrutiny, ridicule, embarrassment, and condemnation if the fullness of our private lives were broadcast to all. One's imagination need not run immediately to the salacious or sexual. One merely has to imagine a judge as an exasperated parent. Or a judge who handles an argument with a spouse poorly. Or a judge who tells an off-color joke.
I am reminded, at last, of scorned and humiliated Hester Prynne—pondering the "hidden sin" in every human heart, musing over the fact that "if truth were everywhere to be shown, a scarlet letter would blaze forth on many a bosom." The lesson Hawthorne's classic teaches is not, as is sometimes supposed, an ethic of sexual liberation. Rather, it is that human society tends toward moral stratification as it ever and always resists the natural democratization and equality that comes from an acknowledgment of universal failure.
"There is none righteous, no, not one." Romans 3:10 (King James Version). Absent this kind of fundamental equality before the law, systems of accusation and punishment are too often motivated by "the narcissistic satisfaction" the powerful will take in "being able to think [themselves] better than others"—rather than from legitimate and just efforts to protect and provide for the common good of society. Freud, Civilization and Its Discontents. Under the rule of law, when and how failures legitimately subject a person to public sanction is perhaps the most important question of public justice.
In the narrow category of the lawful private acts of public officials unrelated to their public duties, the remedy must be political. Otherwise, the very will of the public may be thwarted by a government purporting to act on the public's behalf—but in truth, acting only to elevate and insulate itself….
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People over 30 should not exhibit nudity on a beach nor in pictures without a state license, renewable every 2 years after an examination.
Until that happens, posting pictures of the human body is not obscene. The Judicial Review Board should all be removed for their highly offensive assertions. Get rid of these punk ass bitches. They are divorced from reality and dangerous.
Where do I sign up to be the examiner? (“Ms. Berry, it’s time to renew your license.”)
I was thinking more 65 year old German guys wearing Speedos on the beach in Miami Beach.
Whatever excites you. I don’t kink shame.
And that’s always the problem with this sort of regulation…
Who decides?
Then why not say “people over 65 exhibiting semi-nudity”
As it stands your proposed law wouldn’t even apply to them as a man in a speedo is not nude
The idea is obscene displays.
Did ya ever see that Doctor Who episode where he feeds his memories into a god to destroy it?
Well, I gots one for you about an old beer bellied dude on a beach in Italy with his Speedo.
If you have ever seen such a sight, it is toxic visual pollution. It should be banned.
The jurisdiction of the Judicial Review Board is judicial conduct in court. I would probably fire that judge for his delusional decisions, not for his nudity. That is not as offensive, not as toxic, not as crazy, as his decisions might be.
Wow….This judge gets it; what a great opinion (really well written). What a find, Professor Volokh.
Agreed.
“In short, Judge Clark has embarrassed us—the Examiner, the Commission, this court, the judiciary, and the wider legal community.”
I think it was Ann Landers who wrote you can decide whether you are embarrassed or not.
The judge was right on everything else – just not this sentence.
concur .. as a member of the legal profession myself, I’m not remotely embarrassed by the general concept of Judge Clark getting his freak on in whatever fully-consensual manner he (and presumably spouse, on a “website for couples”) are in to. It’s none of my business, and none of the Kansas Commission on Judicial Performance’s, either. Yay freedom, yay America.
Not necessarily his spouse. There is such a thing as hotwifing, and MMF threesomes.
Or so I’ve read.
“I think it was Ann Landers who wrote you can decide whether you are embarrassed or not.”
I thought that was kind of the point… that the judge was not being punished, not because he did anything wrong judicially or showed unfitness for office, but because the legal community was embarrassed that one of their colleagues was a pervert.
Sorry, “pervert” is no longer an acceptable designation.
There is no activity or belief that is unacceptable, other than being a republican.
How would you identify the relevant “legal community,” and then how would you determine whether the community as a whole is embarrassed?
He was not asserting the literal truth of that statement, but its false self-perception by those who approved of it.
So wait, Judges are supposed to be celibate monks who don’t date according to modern norms?
I think that the Catholic church tried that, its hasn’t really worked out so well.
Honestly the only thing missing here is that the Kansas Commission on Judicial Performance selling indulgences to their favored judges. And if you think that is not happening behind the scenes, the Brooklyn Bridge is for sale by owner, me.
Modern dating includes the use of apps, in this case it was an app for couples to find sexual partners with, so yeah…
Its true that some of the people on dating sites are married. Or airbrush and edit their photos. Or post photos of someone else. Shocking. Just shocking!
I mean its almost like people are biologically programmed to do anything to get laid.
It’s almost like morals are there to prevent us from living down to our biological programing.
Like most people, I can’t quite make my mind up about this, whether it’s normal human behavior that should be ignored unless it objectively affects his job performance, or whether it’s beyond the pale and he needs to resign or be removed.
The opinion omits his idealogical profile so it’s impossible to decide.
Dating is normal human behavior. So is showing yourself naked to potential mates. Or even actual mates, I sext my wife all the time. The only people bothered by nudity on an adult dating site are people stuck in middle age prurience. If this bothers you, my advice is don’t go outside the USA, where you will see lots more public nudity.
By “middle age prurience” I mean the silliness of the medieval catholic church.
“So is showing yourself naked to potential mates.”
Not in anyway “normal”.
“Sexting” to “potential” mates is done by very, very few people.
If you have something to show, its normal. If no one has asked you see you naked that says a lot more about you.
I think you’re telling us more about yourself than about the general public, here. Conventional morals ARE just that, conventional, and the norm.
The media do a lot of work to create the illusion that various deviancies have become common, but it is an illusion.
I think (and I well admit I might be wrong) that posting naked pictures on a dating website is still something MOST people who are dating wouldn’t do. I think most people realize you are opening yourself up to a world of risk doing that. Then you have decreasing levels of risk sending nudes to a single person you already know something about… sending nudes to somebody you’re actively dating…. sending nudes to your spouse, etc.
But all that said, this seems unconstitutional and horrible for judges to be actively punished for this behavior. It’s lawful, private behavior that’s clearly expressive speech, and fuck anybody in government who thinks this is “immoral” and that gives them license to do anything about it.
Well done, and it’s unfortunate the first two commenters completely missed the joke.
What Would Kozinski Do?
Firing Kozinsky was crazy. He is smarter than Volokh.
I would demand the search histories of the personal computers of all the people who decided to fire him.
A study of porn viewing required a control group of people who did not view porn. It had to be cancelled. They could not find a single control subject.
Obviously, his porn viewing was a pretext to get rid of a less leftist judge. Pretextual use of the law should be criminalized with prison terms. It is a form of perjury.
I don’t want to turn this thread into a debate over something that happened years ago. But there is a big difference between Kozinski’s alleged conduct and this judge’s private exchanges with consenting adults.
What was it you were saying about a “missed joke”?
Well, yeah: We know the private exchanges actually happened.
Future generations will laugh at this as Puritanical. I’m with them.
It’s as possible future generations will think we’re like the court of Caligula, too. Public mores do not evolve monotonically in one direction.
Indeed. A single generation ago would have laughed at anyone suggesting how puritanical the current generations are.
They’d be shocked at how puritanical we are about normal conduct, and how casual we are about abnormal conduct.
Judges and even lawyers, in my experience, are sexually closeted (in the wider sense), afraid to be full human beings, sheltered even when they think themselves “worldly”, afraid to experience life, boring, ridiculously cautious, and in general not fun to be around. I think (or at least I hope) that in future years they will move in the direction of the general population.
Lots of Puritanical stuff going on.
Jeff Zucker just lost his job for failing to tell CNN what little Jeff had been up to.
Well, and a 20 year affair that extended through both their marriages. But I suspect it was the 90% loss in market share that he really lost his job over.
Or the extended conflict of interest that involved constantly covering up for a recently deposed New York Governor.
I agree. The affair is clearly an excuse to cover the real reason, of which several possibilities present themselves.
Not the appearance of running a pedo ring out of the CNN office, or at least looking the other way while such was done?
No, of course not. This is CNN. If they fired every pedo, you could toss a grenade into their offices without casualties.
Stegall is the only judge on that court worth a shit. The stupid Missouri Plan selection process means the bar association pretty much captures the court.
A very refreshing rejoinder to the vast number of disciplinary opinions that insist the judiciary or legal profession demands moral superiority in all respects rather than just basic competence and ethical compliance in the job.
In the narrow category of the lawful private acts of public officials unrelated to their public duties, the remedy must be political.
Or maybe, crazy idea, just have no remedy at all?
“[any] remedy must be political.”
Better?
No, because my point was (as always when something like this comes up on VC), that electing judges is a contradiction in terms, and that judges shouldn’t be accountable to anyone except through appeals and through an impeachment process with a very high bar.
I think that’s a reasonable argument (although I would still disagree) for not electing trial court judges. But appellate court – and especially court of last resort – judges have the ability to just create brand new laws and adopt wide-sweeping policies that everybody has to abide by. They must be accountable to the people.
Fully accountable. With the caveat that corporations are people too.
Well, corporations are Soylant Green, anyway: They’re made of people, and you can’t deny them certain rights without denying them to the people making up the corporation.
But that canon is incredibly open ended and leaves a lot of discretion to the state to decide what does and does not undermine public confidence in the judiciary. It’s quite easy for the standard to be “we don’t like it, therefore the public wouldn’t like it, therefore it erodes public confidence.”
They cite the case of a judge who was removed from office because he showed someone dick pics on his phone with approval, even though it didn’t cause any harm and was a complete accident.
I’ve looked into this concept quite a bit and a lot the opinions parading the “public confidence” angle fall base it on the fiction that people won’t obey legal decisions if they don’t trust judges, as if the state doesn’t have a monopoly on legal forcible compulsion.
Well, the state DOES have such a monopoly, and it doesn’t. Which is to say that it does have the monopoly, but, not as some sort of physical law. It claims the monopoly, and people humor the claim in so far as the state seems to use it acceptably. The less people respect the state, the more precarious that monopoly becomes. And the state really does depend on almost everybody treating obeying the law as a moral obligation, not a prudential act to be done when the chances of getting caught are too high. (Which is why enacting laws certain to be widely violated is incredibly stupid.)
So, yeah, it really is important to the state that people respect judges, and cops. Legislators are probably a lost cause at this point.
So justice is both blind AND naked?
Maybe the Magistrate should have put on a blindfold.
Pretty funny. 🙂
The judge should have been disciplined for thinking naked pictures of a upper middle age man would attract dates.
Is adultery a ‘thing’ anymore?
Let him (or her) proudly fly their “Freak Flag”.
Too bad if someone uses the picture in an ad against him or her.
Some jurisdictions actually elect judges (like here in NY).
This brings to mind two other analogues. First, Judge Clark’s actions are similar to Anthony Wiener, and political accountability and and public shame should be punishment enough so long as official duties ate not implicated. Second, the case of Jeffery Toobin shows that these things can be professionally survivable, although Toobin’s disclosures were inadvertent. Query however, if Judge Clark pulled a Toobin during a remote hearing? Aside from the “ick” factor, would this be a sufficient nexus to his official duties to warrant removal?
One of the many possible completely rational intermediate policy steps between treating people who do it as criminals in every sense and treating people who oppose doing it as criminals in every sense is to say it’s not a crime, but you can’t do it and be a judge.
Suppose slavery (specifically black slavery) was legal in some country, and the judge, completely legally, owned several black slaves. Suppose he had them beaten badly, or raped, and that was legal too. Suppose US law didn’t apply under the circumstances. Would anyone be heard to say that so long as it’s legal, what he does on his own time is his own business?
There is a difference between going someplace in order to violate a law in your own country and doing something that is against certain moral codes but within the bounds of American law.
There is a reason that we give disciplinary committees so much free rein. They need to not be hampered by the “there ain’t no law” excuse. However, in this case, there is no law, and the general agreement is that there should not be a law.
The judge’s comparison of this to “revenge porn” seems very apt. There is nothing illegal or shameful about engaging in consensual relations with your significant other. Similarly, there’s nothing illegal about “swinging”. However, publicizing these acts is taboo to the point of being criminalized in some locations.
There’s a law in quite a number of states, aalthough enforced in only a few. Lawrence v. Texas said that adultery laws are constitutional. See for example Professor Volokh’s occassional posts about the torts of Alienation of Affection and Criminal Conversation in North Carolina, the state that in recent history has enforced these things the most.
And the whole point of censuring the judge is precisely that there ISN’T any general consensus that there’s nothing wrong with it. If there had been such a consensus, it would never have occurred to anyone to censure the judge over it. The fact that it happened is itself evidence that no such consensus wxists.
But the whole point of my hypothetical is there ISN’T a law against it, It’s merely regarded as wrong. One is going abroad to engage in conduct that’s legal from the point of view of the home country.
An additional angle to this is the abortion debate. There are a series of Supreme Court decisions saying foreigners outside US territory don’t have constitutional rights, and the reasoning given for these decisions is similar to the reasoning given in Roe v. Wade for fetuses. Johnson v. Eisentrager said the Bill of Rights lacks “extraterritorial application,” Roe v. Wade says it lacks “prenatal application.”
One could speak of going inside the womb to do things that would be illegal outside it, just as one can speak of going outside U.S. territory to do things that would be illegal inside it. But even if Roe is reversed, the inapplicability part of it looks like it won’t be. The conservatives seem inclined to regard abortion as a matter of(states’ choice and to continue to regard fetuses as not having constitutional rights.
Most people would regard the fact that abortion occurs outside the post-natal applicability of the Bill of Rights as more than a mere evasive technicality, and consider pre-natal and post-natal acts as having a different moral character. It would be open to regard going outside the territorial applicability of the Bill of Rights in a similar way.
Pretty sure Justice Kennedy set himself up as the final arbiter of morality — what say he?
“…photo sessions featuring the judicial penis…
Two takes.
1. Judicial Penis is a GREAT name for my law school punk rock group. Dibs!!!
2. If the judicial penis is the real culprit, then I assume it’s also the real defendant in any legal proceeding. I can imagine the sentencing judge:
“Will the defendant please . . . um . . . rise.” [rimshot]
Could you turn this into an IP case somehow, maybe with election billboards?
I think I agree with most of the arguments in the concurrence but not the conclusion that “Marty K. Clark’s behavior […] was not a violation of any of our rules governing judicial conduct”.
The rules explicitly provide that they proscribe behavior that is lawful, and though Judge Stegall argues effectively that they should not his are all arguments that the rules should be changed, not that Marty Clark’s behavior didn’t violate the rules as they stand.
Eric Eurari was in Baltimore a couple of weeks ago and arrived in a great mood, which became an oddity. After each business trip, he went sullen, and then he changed his anger to mercy. It turned out that the assistant in the evening was the website https://together2night.com/baltimore-personals.html where there are so many awesome people. It’s cool if that’s really the true reason for his mood.