Today's question: What do the kerfuffle over Judge Alex Kozinski's off-color picture collection and his recusal from an obscenity trial suggest about legal objectivity and popular ideas about porn? Previously, McDonald and Stagliano debated the constitutionality of obscenity laws.
What makes porn uniquely unacceptable?Point: John Stagliano
As the facts have become known, it has been argued that Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, was only sharing some light-hearted tidbits of pornographic humor on his website, something far less offensive to most people than if he had posted material he was using for sexual gratification. Kozinski's case is interesting because the purpose of porn is usually to help someone achieve sexual gratification. Most of it is made and bought for that purpose, which is why people are so embarrassed to admit having it. Whether that inhibition comes from worrying about what your mother, friends or religious leaders will think of you, we are not comfortable talking about our sexuality in public, and it is especially unacceptable to reveal that viewing pornography is a part of that sexuality.
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. One of my favorite comments was made by the comedian Bill Maher. Talking about the Monica Lewinsky scandal, he noted that because the U.S. president is always under stress and should be able to relax sometimes to do a better job, Americans should want their commander in chief to enjoy more oral sex.
In the case of Kozinski, just the idea that he has any interest in this vile thing known as porn is totally unacceptable. The court of public opinion has already convicted anyone who possesses this stuff. To the public, he could not possibly be able to judge impartially in a case dealing with porn. What if the judge had a hobby of racing cars? Would he not be able to preside in traffic court? 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.
When will the world be safe for people to be themselves? In fact, society is much more accepting of deviant views and lifestyles today compared to previous times. The Internet has allowed people with preferences outside the mainstream to bond together.
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.
John Stagliano is an adult entertainment director, producer and distributor.
Kozinski's wise decisionCounterpoint: Barry McDonald
It is widely accepted that, for our justice system to function properly, the American public must have confidence in its impartiality, fairness and objectivity. Out of this principle, when something happens that would give a person sufficient reason to question the impartiality of a judge in a case, that judge is obligated to recuse herself or himself. This standard not only looks to whether the judge would actually be biased in a case but also whether an incident might create an appearance of bias to a reasonable person regardless of whether or not the judge was actually biased.
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. First, the chief judge has demonstrated through a long, distinguished career that he is a very able jurist. He is no doubt aware of the applicable recusal standards, and I have every confidence he applied them to his situation ably and fairly in the same way he has made myriad other legal rulings. 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. Thus -- and I'm sorry to say, John -- all of your musings regarding the sexual rights of public officials are largely irrelevant to the recusal question.
More to the point of today's question, I believe that Kozinski's recusal demonstrates that legal objectivity toward pornography -- and applying established legal standards fairly to cases involving it -- exists to the same degree as it does in other areas of the law. 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. (Remember, the 1st Amendment was adopted mainly to prevent the government from squelching political dissent and change.)
And so maybe you do have a beef, John, with legal objectivity toward porn. But if you do, you should 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.
Barry McDonald is an associate professor at Pepperdine University School of Law and teaches and writes on 1st Amendment law.