When new members were welcomed to an e-mail group called the Easy Rider Gag List, they were warned that they would soon be receiving a steady diet of tasteless humor.
The warning came from the Easy Rider himself: Alex Kozinski, one of the highest ranking and most intellectually respected federal judges.
On the gag list, Kozinski periodically distributed jokes to a group of friends and associates, including his law clerks, colleagues on the federal bench, prominent attorneys and journalists. The jokes he sent ranged from silly to politically oriented to raunchy.
Kozinski’s taste in humor already has proved problematic for him. Last summer, the judge requested a judicial misconduct investigation into his own actions after The Times published an article about sexually explicit material that he kept on a publicly accessible website. Kozinski maintained that he believed the website was private. In addition to requesting the investigation, Kozinski stepped down from presiding over a high-profile obscenity case in Los Angeles after the article appeared.
The gag list provides additional material for a debate that has continued since then: Do Kozinski’s actions indicate a lack of judgment or are they merely the harmless expression of a free-spirited man who happens to be a highly regarded judge?
The Times was given 13 jokes by three sources that were circulated on the gag list between 2003 and 2008.
One joke sent last spring poked fun at the Taliban, stating, “You may be a Taliban if . . .” any of the following 12 statements are true. Among the statements: “You own a $3,000 machine gun and $5,000 rocket launcher, but you can’t afford shoes” and “You wipe your butt with your bare left hand, but consider bacon ‘unclean.’ ”
Other jokes, labeled “P&T;” in the subject heading to indicate they were “puerile and tasteless,” were cruder and more sexually explicit and used language that defies quotation in a general circulation newspaper.
The most graphic joke was set up as a three-page letter ostensibly written by a man to his estranged wife. The man sarcastically tells his wife that he still loves and misses her while at the same time detailing his recent sexual escapades with a young student, a single mother and his wife’s younger sister. The single mom, the man says, acts like “a real woman . . . [who is] not hung up about God and her career and whether the kids can hear us.”
Mark Holscher, the judge’s attorney, said the sample of sexually themed jokes provided to The Times “distorts the nature of what was sent to the gag list.”
“Even if some could regard this material as offensive, it is irrelevant to Judge Kozinski’s ability to fairly decide the cases before him or any of his other duties” as chief judge of the 9th Circuit Court of Appeals, Holscher said.
In a statement released by Holscher, the judge said he had “used the gag list to keep in touch with friends -- from my own computer, on my own time, at my home. Six months ago, I decided to find other ways to stay in touch, so as not to distract from the court I love and the judicial work to which I have devoted the last 20 years.”
Several people interviewed said the judge stopped sending the jokes after a controversy that began with The Times’ June 12 article about his website.
Arthur Hellman, a University of Pittsburgh law professor who is an expert on the 9th Circuit and judicial ethics, said in his opinion, Kozinski’s distribution of some of the more objectionable jokes may have violated an ethical canon that prohibits judges from engaging in social activities that “detract from the dignity of the judge’s office.”
“Circulating off-color material to an audience beyond family members and close friends is probably not consistent with the dignity that we expect of a federal judge,” Hellman said. Judges are entitled to a private life, he said, “but they have to keep it private.”
Four of Kozinski’s colleagues on the 9th Circuit who were asked about the joke loop by The Times and given descriptions of some of the jokes said they would not engage in such behavior and questioned Kozinski’s judgment in doing so. The judges spoke on condition of anonymity because of their working relationships with Kozinski.
The judge also has supporters, some of whom cited his well-known libertarian bent as an explanation for behavior that may be considered unusual for a man of his position.
“He’s not hung up on the need to be dignified,” said Stuart Taylor Jr., a columnist for the National Journal who said he was on the gag list for more than a decade. “He enjoys life the way he did before he was a judge, and that may not comport with some peoples’ image of what judges should be like.”
Taylor added, “The image of the judiciary should not be such a fragile thing.”
Several of Kozinski’s supporters noted that the sexually oriented material contained warnings about its potentially offensive content.
“He’s bending over backward to warn people,” said Nadine Strossen, former president of the American Civil Liberties Union and a longtime friend of the judge’s.
When the gag list was active, Kozinski sent the jokes via a USC e-mail account bearing the judge’s last name.
Kozinski, an adjunct professor at USC in the early 1990s, declined to say why he had maintained a university e-mail account or why he was using it to distribute the gag list.
Though Kozinski declined to provide a membership list to The Times, Holscher said federal judges, state judges, civil rights leaders, prominent female attorneys and nationally known journalists were on the list at one time or another.
One female lawyer who received the jokes handles 1st Amendment litigation for The Times.
Holscher said people on the list were “willing recipients” who were either personally known to Kozinski or were vouched for by someone already on the list. Anyone who asked to be taken off the list was removed immediately, he said.
Laurie Levenson, a professor at Loyola Law School and former federal prosecutor in Los Angeles, was skeptical that those who found jokes on the list offensive would necessarily complain, given Kozinski’s commanding stature in the legal community.
“If you’re ambitious, he’s the last person you want to offend,” she said.
The Times interviewed 16 people who were on the gag list at one time or another. Most said they did not recall the details of how they got on the list.
Some said they thought they simply started receiving the e-mails. Others said they recalled asking to be put on the list or being asked if they wanted to be on it.
Michael Kinsley, a columnist at Time magazine, said he ended up on the judge’s e-mail list some time in the mid-1990s, before a stint as editorial page editor of the Los Angeles Times. He said he didn’t know how he came to be on the list or why he was taken off.
“There were a lot of vulgar jokes, very dirty jokes,” Kinsley recalled. “I was astonished that a judge was doing this.”
The Times contacted a dozen of the judges’ former clerks. Those who talked offered near uniform praise for Kozinski’s legal skills; the word “brilliant” was used by several. Seven of them refused to say whether they were ever on Kozinski’s gag list. Five others said they are or were at one time.
Paul Cappuccio, a Kozinski protege who went on to clerk for two Supreme Court justices and now serves as executive vice president and general counsel for Time Warner, said he was added to the list years ago but no longer gets the e-mails.
“I assume he just added my e-mail as one of his clerks,” Cappuccio said. “I may have looked at one or two of them and then it sort of became like spam.”
Another former clerk, a lawyer in Washington, D.C., said his experience clerking for Kozinski was “100% positive.”
But he said he eventually became annoyed by the messages on the joke loop, which sometimes made him cringe.
“I made it a point to never respond or forward [the e-mails] to anybody,” said the former clerk, who asked not to be named because he did not want to risk upsetting Kozinski.
The former clerk said he didn’t believe the judge would intentionally offend anyone. But he said his former boss could be “tone deaf” when it came to gauging whether something he found funny would be appropriate to share with others, including his clerks.
“He has no filter,” the ex-clerk said. “He can’t imagine that anyone thinks there’s something wrong with this behavior.”