Judges, Hide Those Porn Collections

A judge owns a car and drives it legally. Should she be allowed to preside over a trial that will determine if a car was used illegally?

A judge collects guns, even displays his collection on his website. Should he be allowed to preside over a trial that will decide if a gun was used illegally?

A judge belongs to a religion which believes that masturbation is a sin, using pornography is a form of infidelity, and sexual purity is the battleground between God and Satan. Should he be allowed to preside over a trial that will establish if something's obscene?

Answers: Of course, of course, and of course -- if we believe in the integrity of the judicial process.

So why can't a judge who owns a porn collection preside over an obscenity trial?

Answer: Because when it comes to "obscenity," the judicial system isn't fair.

Obscenity is the only crime you can't know in advance that you're committing. Only a jury can decide if you've created or sold something obscene, and juries across America keep disagreeing with each other.

More to the point, local, state, and federal prosecutors across America keep demanding that juries decide this. Now that's obscene.

You may have heard that Judge Alex Kozinski was asked to run a trial about four DVDs the feds claim are obscene. Apparently the judge has a website that contains essays, legal writings, music files, personal photos -- and oh yes, sexually explicit material, including images of masturbation, women's crotches in tight clothes, naked women on all fours painted to look like cows, and a half-dressed man cavorting with a sexually aroused farm animal.

The judge is a highly respected scholar appointed to the Federal bench by President Reagan over 20 years ago. But when the L.A. Times reported on His Honor's website, the blogosphere lit up: an adult man (who happened to be a judge) who looked at porn! It was a real dog-bites-man story, but so-called morality groups saw their opening and pounced.

Tony Perkins of the Family Research Council proved that he needs a basic lesson in American civics when he brayed, "Kozinski not only defended the rights of people to sell revolting -- and potentially illegal -- smut, Kozinski is ill-equipped to try an obscenity case when he clearly does not understand the definition of obscene. We call for his recusal in this case and a reexamination of his fitness" as a chief judge."

We expect extremist "decency" groups to undermine American democracy on a weekly basis, and here the FRC didn't disappoint: "potentially illegal"? "The definition of obscene"?

But we expect better from Kozinski's own senator. Dianne Feinstein (D-CA), a member of the Senate Judiciary Committee, intoned "If this [website content] is true, this is unacceptable behavior for a federal court judge."

So this is the latest pinnacle of America's porn hysteria: being interested in the (legal) stuff now disqualifies someone for a federal judgeship. An interest in porn affects a man's mind so deeply -- or reflects a pathology so deep -- that he can't be depended upon to think about legal principles or fairness.

So are divorced judges now unwelcome in family court? Are judges who drink now unacceptable in DUI cases? What about judges who are 20-year sober members of AA? Must judges in bankruptcy cases be rich or poor, stingy or generous?

Demanding Kozinski's recusal from the Ira Isaacs obscenity trial -- indeed, questioning his fitness to be a judge altogether -- is a fundamental failure of faith in American democracy.

While most people tried on criminal charges are assumed innocent unless the government can prove their guilt, people arrested for the creation or distribution of "obscenity" have to prove that their material has some merit -- artistic, scientific, or political. Kozinski's real sin is believing that the government has to justify censorship, rather than believing that the burden of defeating censorship falls on arrested Americans.