Kozinski's Free-Speech Record Reflects Ambivalence

Alex Kozinski –- the federal appeals court judge at the center of a storm over his smut-collecting habits –- has a reputation as a champion of the First Amendment. But his rulings in adult entertainment cases indicate some ambivalence about protecting what he has called the “nether region of public discourse.”

In a case involving underage porn star Traci Lords, the chief judge of the 9th U.S. Circuit Court of Appeals sided with adult video producers who argued that they should not be convicted of violating child pornography laws absent knowledge of Lords' true age at the time they hired her to perform in their videos.

“Our reading of the relevant Supreme Court opinions ... suggests that the first amendment does not permit the imposition of criminal sanctions on the basis of strict liability where doing so would seriously chill protected speech,” Kozinski wrote in U.S. v. U.S. District Court, 858 F. 2d 534 (1988).

Kozinski wasn't unequivocal in his defense of the defendants' free-speech rights, however. “[T]he right to produce salacious movies,” he said, “is intrinsically unworthy of much solicitude,” but “Speech shielded by the amendment's protective wing must remain inviolate regardless of its inherent worth” and

Unless and until the Supreme Court speaks otherwise, we are bound to the view that the constitutional wall against government censorship protects this nether region of public discourse as fully as the heartland of political, literary and scientific expression and debate.

In another Lords-related case, a 2-1 majority of the 9th Circuit, citing U.S. District Court, said “a statute prohibiting the distribution, shipping or receipt of child pornography require[s] as an element knowledge of the minority of at least one of the performers who engage in or portray the specified conduct.” U.S. v. X-Citement Video, 982 F.2d 1285 (1992).

By this time, the Supreme Court had ruled that recklessness is a sufficient mental state to support a child porn conviction. Citing that precedent, Kozinski changed his tune and dissented from the majority.

Female “nether regions” figure prominently in the cache of explicit images extracted from Kozinski's personal website and now threatening to tarnish his career. But he did little to support the First Amendment rights of adult bookstore owners in Polykoff v. Collins, 816 F.2d 1326 (1987).

The booksellers challenged an Arizona law banning the sale of obscene material that applied when “The average person, applying contemporary state standards would find that the item, taken as a whole, appeals to the prurient interest.”

Jury instructions approved by the Arizona Supreme Court defined “prurient interest” as “an unhealthy, unwholesome, morbid, degrading, or shameful interest in sex” and a 9th Circuit panel which included Kozinski found they were not overbroad.

Kozinski told the Los Angeles Times that he didn't think any of the material on his website would qualify as obscene. “Is it prurient? I don't know what to tell you,” he said. “I think it's odd and interesting. It's part of life.”

But you have to wonder if at least some of Kozinski's cache wouldn't meet the standard for prurience he upheld in Polykoff.

By Matthew Heller
6/12/08