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Under His Robes
June 11, 2008 1:48 PM   Subscribe

U.S. 9th District Court of Appeals Chief Justice Alex Kozinski [wiki] is currently adjudicating a remarkably hardcore obscenity case.  He is currently facing his own obscenity case as well, having allowed public access to NSFW or illegal-for-minor-viewing material posted on his own vanity website, as reported in the LA Times.  Although he maintains that the material's posting was just innocent fun, he clearly knows his way around the internets.  Kozinski is a prolific and well-regarded essayist, and is occasionally mentioned as a potential Supreme Court nominee.
posted by rzklkng (96 comments total) 1 user marked this as a favorite

 
Aak. Sorry about the bad post formating.
posted by rzklkng at 1:49 PM on June 11, 2008


Thought my browser had lost it for a second there.
posted by Skorgu at 1:50 PM on June 11, 2008


For a second I thought there was an invisible post there.
posted by brundlefly at 1:52 PM on June 11, 2008


iswas occasionally mentioned as a potential Supreme Court nominee
posted by brain_drain at 1:56 PM on June 11, 2008


If you criminalize shitting in someone's mouth and putting a video of it on the web for all to see, then only criminals will shit in someone's mouth and put it on the web for all to see.
posted by spikeleemajortomdickandharryconnickjrmints at 1:58 PM on June 11, 2008 [5 favorites]


Does anyone have a mirror of Kozinski's site? I would love to see the step-by-step tutorial on shaving one's pubic hair.

He is currently facing his own obscenity case as well ...

I don't think this is right. There's no indication that he's being prosecuted or facing prosecution.

I was actually planning to post this myself. Here's the money shot (heh) from the L.A. Times article:

Kozinski said he would delete some material from his site, including the photo depicting women as cows, which he said was "degrading . . . and just gross." He also said he planned to get rid of a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair.

Kozinski said he must have accidentally uploaded those images to his server while intending to upload something else. "I would not keep those files intentionally," he said. The judge pointed out that he never used appeals court computers to maintain the site.

The sexually explicit material on Kozinski's site earlier this week was extensive, including images of masturbation, public sex and contortionist sex. There was a slide show striptease featuring a transsexual, and a folder that contained a series of photos of women's crotches as seen through snug fitting clothing or underwear. There were also themes of defecation and urination, though they are not presented in a sexual context.

posted by jayder at 1:59 PM on June 11, 2008


My favorite part is that I think that I've seen the crap he was hosting.
posted by a robot made out of meat at 2:01 PM on June 11, 2008 [1 favorite]


His own vanity website seems to be down.
posted by Shepherd at 2:03 PM on June 11, 2008


posted on his own vanity website

It's 2008. Are people still calling having-your-own-website a "vanity site"? Or is his site (when it's not down) just a collection of stirring self-portraits and adoring blurbs?
posted by cortex at 2:06 PM on June 11, 2008 [3 favorites]


Kozinski said he must have accidentally uploaded those images to his server while intending to upload something else.

Yeah, riiiiight.

And your visits to the Pleasure Chest on Santa Monica Blvd. are strictly for "research."
posted by ericb at 2:06 PM on June 11, 2008


I smile every time I see Kozinski's name, but like Posner, I think he's brilliant, and too divisive to just about everybody to ever make it onto the federal bench.
posted by Navelgazer at 2:07 PM on June 11, 2008


I hope it wouldn't get him in more trouble if I mention that my husband and I went to see "Rocky Horror Picture Show" at the NuArt with Kozinski and a lawyer friend (now a law professor) and some other people about a year ago. But that movie's probably considered quaint by today's standards.
posted by Asparagirl at 2:08 PM on June 11, 2008


I think it's art. It isn't art I would want to see, and yes some might find it titillating, but it's not the community's business what other people want to watch. So let's call it art.
posted by Meatbomb at 2:16 PM on June 11, 2008


Here's the problem that I have with these sorts of cases: On the one hand I think the material is grossly obscene, but on the other hand I'm not sure that all obscene stuff should be illegal. Clearly the misogynist material needs to be illegal, and the bestiality, too (animals can't give consent), but I just don't see the obvious harm to society in a skat fetish.
posted by oddman at 2:19 PM on June 11, 2008


Clearly the misogynist material needs to be illegal

*blinks*

Ah . . . are you sure? I mean, boo misogyny and all, but . . . really?
posted by Skot at 2:23 PM on June 11, 2008 [7 favorites]


The calls for him to recuse himself represent a nice attempt at identifying "obscene" and "sexually explicit."
posted by dsword at 2:24 PM on June 11, 2008 [1 favorite]


Clearly the misogynist material needs to be illegal

Oh, yes. Clearly.
posted by adamdschneider at 2:24 PM on June 11, 2008


Stephen Gillers, a New York University law professor who specializes in legal ethics, told The Times that Kozinski should recuse himself from the Isaacs case because "the public can reasonably question his objectivity" concerning the issues at hand.

Kozinski hasn't been charged with any crime, right? So there's no conflict of interest? Hosting images which some people might find obscene doesn't make Kozinski unfit to judge the case, it just reveals that people differ on whether they find (in this case) photographs of naked women painted as cows to be funny or not. Having a personal intuition about what constitutes obscenity shouldn't be a problem.
posted by episteborg at 2:25 PM on June 11, 2008


As usual the LA Times has buried the lede:

Only those who knew to type in the name of a subdirectory could see the content on the site, which also included some of Kozinski's essays and legal writings as well as music files and personal photos. [Emphasis supplied]

Pervert shmervert, the guy is a filthy music pirate! Who will think of the children?
posted by The Bellman at 2:25 PM on June 11, 2008 [1 favorite]


Clearly the misogynist material needs to be illegal

Dittoing skot, this is far from clear.
posted by prefpara at 2:26 PM on June 11, 2008


What classes as misogynistic? I mean, scat and bestiality are probably relatively easy to define, but how would you define misogyny?
posted by djgh at 2:28 PM on June 11, 2008


I smile every time I see Kozinski's name, but like Posner, I think he's brilliant, and too divisive to just about everybody to ever make it onto the federal bench.

Posner and Kozinski are both Federal Circuit court judges -- Kozinski the chief judge of the Ninth Circuit and Posner a Seventh Circuit judge. Did you mean Supreme Court?
posted by The Bellman at 2:28 PM on June 11, 2008


Clearly the misogynist material needs to be illegal

I too am unclear on this.
posted by rtha at 2:30 PM on June 11, 2008


Clearly the misogynist material needs to be illegal, and the bestiality, too (animals can't give consent)

Neither can women?
posted by ND¢ at 2:32 PM on June 11, 2008 [3 favorites]


Clearly the misogynist material needs to be illegal, and the bestiality, too (animals can't give consent)

Neither can women?
posted by ND¢ 1 minute ago [1 favorite -] Favorite added!


"animals" encompasses "women," presumably.
posted by prefpara at 2:35 PM on June 11, 2008


I'm confused. He is saying furries should be illegal?
posted by ND¢ at 2:36 PM on June 11, 2008


Kozinski was one of the ringleaders behind the Ninth Circuit's effort to force the government to remove its internet monitoring software.
posted by pardonyou? at 2:37 PM on June 11, 2008


This was one of the few times that he could have used the excuse "It was research" and get away with it.
posted by stavrogin at 2:43 PM on June 11, 2008


I think it might have been the /stuff/ directory.
posted by puke & cry at 2:46 PM on June 11, 2008 [3 favorites]


"Only those who knew to type in the name of a subdirectory could see the content on the site"

So you had to hack the URL to find the material. I hardly call that "public".
posted by Ragma at 2:46 PM on June 11, 2008


And looking in the /stuff directory it looks like he just saved a bunch of crap people email each other all the time.
posted by Ragma at 2:52 PM on June 11, 2008 [1 favorite]


What bothers me is this vague concept of "community"...

I mean, ok, you have the purchaser and the producer who each live in a community. But that's so quaint.

In the modern era communities are more like affinity groups. Online interaction has made community be something more than just locale.

And even assuming such things: It's not as if the whole community is viewing the material. It's private and consensual between 2 (well more than 2, since the buyer and seller are only part of the equation, the actors/participants in the videos add in the mix) people.

Consent is the key term here, and the Bestiality is definitely an issue. What is the bestiality? Was there actual sex? Were they just taking vids of the wangs of animals? How far did it go? I could care less if someone eats shit. If someone wants to get hit and gets turned on, that's they're choice.

If the prosecution can show that the people being physically beaten in the video did not want to then that's another case to be made.

But fuck this "community standard"s bullshit. It's archaic now.
posted by symbioid at 3:06 PM on June 11, 2008


The bellman, I did mean the supreme court, but I must have been distracted by someone saying "federal bench" when I wrote that. I don't agree with either Kozinski or Posner 100%, but I think they're two of the smartest (and definitely the funniest) of the Circuit Court Judges.
posted by Navelgazer at 3:08 PM on June 11, 2008


From puke and cry's link I see the judge was interested both in camel toes, John McCain singing and a wmv file called "testicle.interview". Go figure.
posted by mandymanwasregistered at 3:13 PM on June 11, 2008


"he knows his away around the internets" doesn't seem to be working, but I highly recommend google cache version. Alluring preview:

I must say that I'm severely disappointed in the slate of candidates you have fielded for your Judicial Hottie contest. While I think the list of female candidates is excellent, the list of male candidates is, frankly, lacking. And what it's lacking is me.
posted by soma lkzx at 3:15 PM on June 11, 2008 [2 favorites]


It's like the greatest hits of stupid internet forwards, all in one convenient place! Hey, have you all seen the hilarious photo essay Why Women Live Longer? I'm pretty sure my old boss showed me that one a few years back. Does anyone know what flowchartofgettingsome.pps looks like? I'm asking for a friend, I swear.
posted by mandymanwasregistered at 3:20 PM on June 11, 2008 [1 favorite]


It's like the greatest hits of stupid internet forwards, all in one convenient place!

All rise, the honorable Mom's Hotmail Account presiding.
posted by cortex at 3:37 PM on June 11, 2008 [5 favorites]


Sounds like this jury is acquitting the judge! Plus, we hateses when newspapers use the term 'vanity site,' yes we do.
posted by mwhybark at 3:46 PM on June 11, 2008


From the WSJ link:

"With regard to the article in today’s Los Angeles Times, the computer server is maintained by one of the judge’s sons. It is not government property. All family members use it. Pictures, documents, other items of personal and family interest are stored on it. After the story broke, one of the judge’s sons contacted him to say he had uploaded much of the items referenced in the story. The server and its contents are a private matter. It was not meant to be accessible by others and the judge had no idea it was. Had he known, he would have been more careful of its contents."
posted by Kraftmatic Adjustable Cheese at 4:13 PM on June 11, 2008


Clearly the misogynist material needs to be illegal,

Clearly = "I strongly believe -- and you should agree with me on this, for this is the position of all right-thinking people-- that"
posted by jason's_planet at 4:34 PM on June 11, 2008 [1 favorite]


Awesome legal reasoning on page 23 (pdf).
posted by Kwantsar at 4:40 PM on June 11, 2008 [4 favorites]


Lawyers and judges everywhere were shocked, shocked at this article until they read "Ninth Circuit," at which point they shrugged and moved on.
posted by spiderwire at 4:55 PM on June 11, 2008


Wait just a minute here, we need to get something straight in this thread, there is a issue much bigger than a creepy judge going on here...

...are there seriously people in here who are saying that misogynist materials that feature only consenting adults should be made illegal?

Seriously?

We need some clear yes/no answers to that and THEN we have a real discussion.
posted by Cosine at 5:20 PM on June 11, 2008


The Bush administration shits on every American every fucking day, pisses on us, and cleans out our Treasury, to boot. So I say FUCK this nonsense, if people want to watch videos of people degrading each other, it's nowhere near as offensive as what's been done to ALL of us for seven years. Fucking hypocrites. My tax money goes to pay for this "justice"? Makes me sicker than any scat video in the known universe.
posted by dbiedny at 5:27 PM on June 11, 2008 [3 favorites]


#3 ("Gee, guys... that seems like an awful lot of protective gear for such a small chlorine gas leak...")

He is the stereotype of supervisors everywhere.
posted by Meatbomb at 5:28 PM on June 11, 2008 [1 favorite]


Kozinski, 57, acknowledged in an interview with the LAT that he had posted the materials, which included a photo of a naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal.

Jebus, the farm animal wasn't wearing boots, was it?
posted by Tube at 5:43 PM on June 11, 2008


Excuse me, but when we have a madman president spreading his brand of christianity and democracy to any and all, regardless of whether they want it or not, and regardless of the cost in lives and lucre, I could give a shit who's shitting in whose mouth.

Will the insanity never end?
posted by lometogo at 6:01 PM on June 11, 2008 [1 favorite]


... and is occasionally mentioned as a potential Supreme Court nominee.

I think it's safe to say this is now ruled out, if it was ever a real possibility.

I have heard that for Supreme Court clerks, Kozinski is one of the main "feeder" Circuit Court judges.
posted by jayder at 6:28 PM on June 11, 2008


So, let's see. I don't think that consensual, misogynist sex needs to be outlawed (granted, I'm not entirely confident that two psychologically healthy adults would ever want to engage in misogynist sex. So, it might not be possible to consent to that kind of sex. But this is a moral claim that takes us beyond the current discussion). What consenting adults do in the privacy of their own bedrooms is entirely there own business. Neither am I suggesting that misogyny itself should be outlawed (I'm not a big fan of thought crimes. If anything it might be the case that misogyny should be treated as a psychological illness).

However, it does seem to me to be the case that video created explicitly as an expression of hate against more than half of the population is highly problematic. Furthermore, when that population is, in our society, a political minority (i.e. women are at a power disadvantage with respect to men) then the video is itself not just an act aggression but really an act of oppression and given this, frankly, making that kind of video is nothing other than a violent act. Finally, it's inarguable that in a just democracy the majority has a duty to be especially vigilant against advocating harm to minorities. These factors combine to present a pretty strong argument against these videos.
posted by oddman at 6:28 PM on June 11, 2008


Oddman:

1. "I'm not a big fan of thought crimes."

2. Except this time, and here are some reasons why.
posted by prefpara at 6:33 PM on June 11, 2008 [5 favorites]


Check out the update on the WSJ link (the "innocent fun" link above):

UPDATE: We connected recently with Cathy Catterson, a spokeswoman for the Ninth Circuit. She sent along the following statement:

With regard to the article in today’s Los Angeles Times, the computer server is maintained by one of the judge’s sons. It is not government property. All family members use it. Pictures, documents, other items of personal and family interest are stored on it. After the story broke, one of the judge’s sons contacted him to say he had uploaded much of the items referenced in the story. The server and its contents are a private matter. It was not meant to be accessible by others and the judge had no idea it was. Had he known, he would have been more careful of its contents.


It requires some pretty world-class contortions to square the new "my son did it; I knew nothing of what was on the server" explanation with the following account of a newspaper interview with Kozinski.


Kozinski, 57, acknowledged in an interview with the LAT that he had posted the materials, which included a photo of a naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he defended other sexually explicit content as “funny.”

He said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, Kozinski, who pointed out that he never used appeals court computers to maintain the Web site, blocked public access to the site.

posted by jayder at 6:34 PM on June 11, 2008 [1 favorite]


Awesome legal reasoning on page 23 (pdf).

Lawyer: Some facts are cumulative, others are hearsay. Some facts are both cumulative and hearsay.
Ramirez-Lopez: Can you say that in plain English?
Lawyer: No.

Gold, Jerry. Gold.
posted by the littlest brussels sprout at 6:56 PM on June 11, 2008


Nice try prefpara, but that's a really shabby misrepresentation of what I said. I suggested outlawing the creation of videos which are harmful to half the population, as I explained (feel free to address the actual points anytime).
posted by oddman at 6:58 PM on June 11, 2008


Thoughtcrime is OK if a thought/expression harms half of the population?
posted by prefpara at 7:00 PM on June 11, 2008


I'd like to know what's in the file Sexual Consent.
posted by JaredSeth at 7:11 PM on June 11, 2008


Oddman, I think prefpara makes a good point. But I'd like to discuss your main points first.

it does seem to me to be the case that video created explicitly as an expression of hate against more than half of the population is highly problematic

You mentioned outlawing mysogynist videos, but I don't see a necessary connection between "highly problematic" and "illegal". I think a lot of speech is "highly problematic", but making it illegal requires more than that. You mention that your stance is based on considering all three points you make, however, so it's possible that you don't believe this alone earns illegality as well. I agree that advocating mysogyny is problematic (though I disagree that it should be illegal), so let's move on.

when that population is, in our society, a political minority... then the video is itself not just an act aggression but really an act of oppression and given this, frankly, making that kind of video is nothing other than a violent act

I've got to vehemently disagree here. Oppression requires a majority force, not mere membership in a majority. Without the force, it's just "an expression of hate", which I feel is problematic but not deserving of illegality.

Nor do I believe silence would indicate implicit agreement. Americans don't believe silence means guilt when arresting a suspect (hence "you have the right to remain silent"); similarly, I don't believe silence regarding a mysogynist video means assent to mysogyny. We can argue this one in depth, but I would rather hear your side first (so as not to set up a strawman).

it's inarguable that in a just democracy the majority has a duty to be especially vigilant against advocating harm to minorities

I think that depends on your definition of "especially vigilant". We certainly don't allow people to bring a bunch of weapons and yell "okay, let's kill all the niggers". We punish hate crimes with more force than we punish "standard" crimes. I've got very few problems with any of that (my own worry is the precision with which we define a "hate crime").

However, I don't think we need to be vigilant to the point that someone making a mysogynist video should be shut down, any more than we shut down white supremacy websites. To me, that is problematic but not deserving of illegality. It's a degree thing, and we can certainly argue degree.

Finally, I'd like to point out that prefpara is indeed pointing out that no one has actually been harmed, or is in danger of imminent harm, by this video.
posted by Maxson at 7:21 PM on June 11, 2008


oddman: Define harmful. Harmful by who's estimation, yours? How harmful to how many is acceptable, how much is too much, who judges?

Have you watched any of the Zappa interviews on the subject? Extremely well done and intelligent.

I would summarize the problem with your points simply as "you do not have a constitutional right to never have your feelings hurt, never feel angry, never get offended and never be made uncomfortable by something someone else has said"
posted by Cosine at 7:26 PM on June 11, 2008


oddman writes "Clearly the misogynist material needs to be illegal, and the bestiality, too (animals can't give consent), "

Homosex squicks me out. Two guys groping and rubbing each other and having buttsex just turns my stomach. Luckily for everyone else, it's clear that my belly rumblings are the laws of the universe.

Clearly, homosexual sex is always rape. Knowing that God condemns it as sin punishable with death, clearly no mentally competent person would engage in an act that is anathema before God. Therefore, anyone engaging in homosex must be impaired and unable to give free consent. Sort of like old people with dementia. Therefore, all homosexuality is rape. Clearly.


oddman writes "However, it does seem to me to be the case that video created explicitly as an expression of hate against more than half of the population is highly problematic. Furthermore, when that population is, in our society, a political minority (i.e. women are at a power disadvantage with respect to men) then the video is itself not just an act aggression but really an act of oppression and given this, frankly, making that kind of video is nothing other than a violent act. Finally, it's inarguable that in a just democracy the majority has a duty to be especially vigilant against advocating harm to minorities. These factors combine to present a pretty strong argument against these videos."

It seems to me that a video created solely to approvingly displays acts which are anathema to God and to all right-thinking persons is highly problematic. Furthermore, when a video depicts acts which undermine the sanctity of marriage and the Christian foundations of our society, the making of such a video is nothing other than a violent attack on our society and values. Finally it's inarguable that in a real democracy, the majority -- in our case, the Christian Bible-believing majority -- is always right when they are on God's side. These factors combine to present a pretty strong argument against all gay porn, and indeed against any porn at all.

oddman, it's so nice to see that Fundamentalist cant and "liberal" politically-correct "feminism" can find common ground in discovering that a video no one was forced to make or watch is in fact a "violent attack" and an act of "oppression", and in asserting that "what personally squicks me out" is really an "Immutable Law of the Nature".
posted by orthogonality at 7:46 PM on June 11, 2008 [2 favorites]


Looking at the blog Above the Law, I see that Kozinski is making a valiant attempt to exonerate himself from posting these things (despite having previously admitted uploading them and saying the items were "funny" and "part of life").

For some reason his backtracking pisses me off. I suppose it's the fact that judges --- especially those who preside over criminal trials and appeals --- pass judgment on human frailties and foibles all the time, and are trained to be skeptical of people's attempts to explain away their mistakes in judgment. To see an eminent, powerful, esteemed federal judge deny his own error of judgment, in a way that would never pass muster in a sentencing hearing, and try to pass the blame to his son is disappointing. It would have been refreshing to simply say, "I screwed up. Sorry."

Here's his response to an inquiry by the editor of Above the Law:

David ... the server was maintained by my son, Yale, for the entire family. Pictures, documents, music, audio and other items of personal and family interest are stored there so various family members can reach them from wherever they happen to be. Everyone in the family stores stuff there, and I had no idea what some of the stuff is or was -- I was surprised that it was there. I assumed I must have put it there by accident, but when the story broke, Yale called and said he's pretty sure he uploaded a bunch of it. I had no idea, but that sounds right, because I sure don't remember putting some of that stuff there.

I consider the server a private storage device, not meant for public access. I'd have been more careful about its contents if I had known that others could access it.

posted by jayder at 8:19 PM on June 11, 2008 [2 favorites]


Nice try prefpara, but that's a really shabby misrepresentation of what I said. I suggested outlawing the creation of videos which are harmful to half the population, as I explained (feel free to address the actual points anytime).

Well, it seemed like a straightforward summary to me.

I mean, your basic point is that misogynistic videos can be considered "violence" because it's "oppressive". You further define "Oppressive" as anything that's aggressive to a "political minority". So in your view, any expression anger, or aggression towards a minority is the same thing as violence.

But frankly, I don't see how you can make any of those leaps. From "Oppressive" to "violent", or from "Aggressive" to "Oppressive". I certainly think that oppressing minorities should be illegal, but in my mind in order to be Oppressed, you have to be forced to do something, or prevented from doing something. Different kinds of Oppression obviously might have more conditions (so racial oppression might require that you be oppressed due to race -- where as our cubical dwelling existence oppresses all but the richest of us).

But either way, Oppression requires acting against someone's will. Simply making a video does not act against anyone's will (Except this Jury, who is going to be forced to watch it, I guess)
posted by delmoi at 8:24 PM on June 11, 2008 [1 favorite]


Maxson, our main point of contention seems to be on the force issue.

First, I'm not so sure, as you seem to be, that oppression requires action by the majority in toto (or nearly so). I think that action by a small segment of the majority coupled with silence from the remainder of the majority can lead to the oppression of a minority. In fact, if I'm right then a single member and a silent majority could create an oppressive atmosphere for a minority. (Imagine how Catholics might feel if a single filmmaker created a horridly anti-Catholic film and the majority Protestant community in America said nothing whatsoever against the film. It seems fairly plausible (if not obvious) that many Catholics would take the absence of condemnation of the film to imply agreement with its content.)

In essence, I'm willing to say that a misogynistic film is a hate crime because it creates an atmosphere in which women are dehumanized. An atmosphere in which hating and harming women is seen as acceptable. We certainly seem to disagree on the impact of these films. I believe that what we experience shapes how we behave. (I would certainly advocate for a good scientific study to establish the truth of my claim.)

Prefpara is that last comment meant to suggest that thoughts can in and of themselves be harmful to others? (If not, then I have no idea what your point was.)

Cosine, harmful just means detrimental, injurious, damaging, etc. As I noted in my reply to Maxson, I'm fine with some good old fashion empirical research into whether or not women in a society which allows expressions of misogyny are better off than in a society that does not. (I'm pretty confident that women in the latter, censured, society would be happier and safer.)

Ortho, I'm going to assume that either you are trolling or that you chose to read my position as uncharitably as humanly possible. However, just in case you think that you are offering a cogent, valid counter argument I will say this: there is a superficial similarity between the attitudes adopted by people who wish to end what they see as an injustice. You noticed this, good for you. However, if you can't see the difference between my concern for the well being of historically (and currently) oppressed gender (I'm a guy, btw) and your tin-eared, insulting, and tired caricature of a Christian, then frankly I'm at a loss as to how we might find common ground.
posted by oddman at 8:26 PM on June 11, 2008


oddman, you seem to be working from the assumption that the following things justify the abridgment of a fundamental right (free speech):

--if that speech makes people feel bad
--if that speech creates an atmosphere you dislike
--if that speech makes people, in your estimation, less happy
--if the people who dislike the speech have been oppressed or are somehow outnumbered

What can I say, I too am at a loss for common ground here.
posted by prefpara at 9:26 PM on June 11, 2008


Finally, it's inarguable...

New here?

These factors combine to present a pretty strong argument

Nope.
posted by Cool Papa Bell at 9:50 PM on June 11, 2008


I believe that what we experience shapes how we behave.

My remote, there are "Channel Up" and "Channel Down" options. There's even one called "Power."

I use these buttons. Often.

I urge you to do the same, instead of urging others to change their behavior based on your whims.
posted by Cool Papa Bell at 9:53 PM on June 11, 2008 [1 favorite]


oddman, the purpose of rights and freedoms are rights and freedoms, not a happier and safer society.

To grossly paraphrase "he who would give up a little freedom for a little safety (or happyness) will soon have neither"
posted by Cosine at 9:54 PM on June 11, 2008 [1 favorite]


jayder: It would have been refreshing to simply say, "I screwed up. Sorry."

The way I read it, he was trying to take responsibility because he was surely aware that he's probably saved some things that were slightly objectionable; he "backtracked" because there was actually a bunch of stuff in there that was really objectionable that he didn't put there.

If anything, he may have been too quick to take responsibility, which I think is pretty plausible. I got the impression that the story broke pretty quickly (someone just accessed the directory) and so he may not have had time to look through all of it.

Not that your interpretation's not valid if that's not the case, but if he was really trying to avoid responsibility I just don't think this is how he'd do it. The excuse would have worked just as well off the bat as, "someone else put up the really objectionable stuff, but I take responsibility for everything else." Kozinski's smarter than that.
posted by spiderwire at 10:00 PM on June 11, 2008


I smile every time I see Kozinski's name, but like Posner, I think he's brilliant, and too divisive to just about everybody to ever make it onto the federal bench.

Didn't Posner also write a defense of polygamy on his blog?

This whole story is nonsense. The whole YouTube-gotcha game of this Presidential election is nonsense. On one hand there's some value to catching "macaca" moments, and there have been plenty of those, but today was just absurd. Johnson quitting the Obama campaign, "I will veto every single beer," the Kosinski flap, etc.

As if the news wasn't stupid enough already.
posted by spiderwire at 10:08 PM on June 11, 2008


In fact, if I'm right then a single member and a silent majority could create an oppressive atmosphere for a minority... In essence, I'm willing to say that a misogynistic film is a hate crime because it creates an atmosphere in which women are dehumanized.

This does seem to be our major point of contention, and I believe it's one we will simply have to agree to disagree on. I've combined your two points because I feel both of them directly address a fundamental difference in our opinions.

Regarding the "single member and silent majority", I personally feel that this should not count as oppression. To me, oppression is more than a feeling of being oppressed; it's the feeling plus the reasonable belief of action based on that oppression. To me, the single anti-Catholic video example you give would only count as oppression if the Catholics could reasonably believe the Protestants were going to act on these feelings. That means anything from denying them jobs to outright violence, but the reasonable chance of action is key.

Because of this difference in definition, I do not feel a misogynistic film is a hate crime. In my opinion, without that reasonable belief that men out there really will act out against women because of the video, no hate crime exists. After all, we wouldn't blame the video for misogynistic acts if the people perpetrating them had never seen the thing. In direct contrast, a gay man being beaten right after some punks started screaming "kill that faggot" would be a far clearer example of both oppression before the crime (the gay man is faced with a feeling of oppression and a reasonable belief that it will be acted upon) and a hate crime itself (the man has been beaten because of a desire to hurt homosexuals). I tend to demand a strong connection between the speech in question and the act to find a "hate crime" because I believe the alternative would censor far too much speech.

I don't see any way we can square our different opinions on this matter. I respect your opinion and your willingness to discuss it openly and rationally. I'm still willing to discuss it, if you wish.
posted by Maxson at 12:54 AM on June 12, 2008


In essence, I'm willing to say that a misogynistic film is a hate crime because it creates an atmosphere in which women are dehumanized. An atmosphere in which hating and harming women is seen as acceptable. We certainly seem to disagree on the impact of these films.

Personally I feel that infantilizing and overprotecting women as if we can't cope with some misogynist thought is, in and of itself, misogynist. Should we ban your postings too?

Where do you want to draw the line? Sexually-oriented misogyny? Comedic misogyny? Video or audio, but not in writing?

I appreciate where you're coming from, Oddman, but I think you've got this all wrong. The reason why free speech is crucial is that it allows hateful speech to come to light, and be shouted down in public, rather than nurtured in secret.

In Victorian England pornography was completely illegal, but it flourished in secret books men would share with each other, some of which was as 'extreme' in its misogyny as any porn today. That illegality did nothing for the condition of women, who were strictly limited in their social roles.
posted by miss tea at 3:57 AM on June 12, 2008 [1 favorite]


...the only line I see is if the violence is acting or not...otherwise...I find
war much more obscene than anything this fellow and his customers
seem to be into...and there's plenty of war films and videos...
posted by rmmcclay at 6:43 AM on June 12, 2008


He doesn't have his own obscenity case, as it appears no charges have been filed against him.

Also, that's Chief Judge Kozinski.

He's a really good judge. His opinions are cited a lot.
posted by Ironmouth at 6:59 AM on June 12, 2008


Clearly the misogynist material needs to be illegal, and the bestiality, too (animals can't give consent)

Consent has absolutely nothing to do with it. I think people should be allowed to say misogynist things. And other people should be able to call that out all as misogynist bullshit all day long. It is called the marketplace of ideas. It works the best for getting rid of crap. Notice one thing about evil misogynist and racist dictators? They always ban the calling out of bullshit because they know it is the real threat to them.
posted by Ironmouth at 7:42 AM on June 12, 2008


Maxson, you make two good points. On the necessary conditions for oppression, I might be inclined to say that refusal to condemn implies the kind of willingness to act that you highlight. However, this is clearly a bit of a stretch. We seem to just have different intuitions on the matter.

"In my opinion, without that reasonable belief that men out there really will act out against women because of the video, no hate crime exists. After all, we wouldn't blame the video for misogynistic acts if the people perpetrating them had never seen the thing."

To the first point, again we just seem to disagree. I think the film could be a hate crime in and of itself. To the second point I agree completely. Of course my contention is that the film might indirectly influence people who've never seen it and thus make misogynistic acts more likely.

Miss Tea, my position does shade toward paternalism (and I'm uncomfortable with that). BUt I'll thank you not to act as if I'm part of the problem. I am trying in good faith to offer a solution. Simply put, I would rather prevent the problem then address it after the fact. This is how I see it. I realize that in your eyes what I term prevention is nothing more than avoidance. As these things go we seem to just see things differently.
posted by oddman at 8:00 AM on June 12, 2008


I'll thank you not to act as if I'm part of the problem.

Where does a woman get off accusing you of misogyny? And after all you're willing to do for them!
posted by octobersurprise at 8:19 AM on June 12, 2008


I am strongly comforted by the understanding that this judge is a normal guy. Who forwards on blue material to his friends as a joke, who stores a few copyrighted MP3s on a hidden directory on a website somewhere. Yeah, some of it is in bad taste, and he says as much in the little public commentary he's made. I think it's great that a judge would have bad taste, and acknowledge it publically. It's much better if judges are of the population, not above it.
posted by Nelson at 8:20 AM on June 12, 2008


I'll thank you not to act as if I'm part of the problem.

You can thank her all you want, but in your utopia, you'd be doing it from your jail cell.
posted by prefpara at 8:46 AM on June 12, 2008 [1 favorite]


Oddman
First, I'm not so sure, as you seem to be, that oppression requires action by the majority in toto (or nearly so). I think that action by a small segment of the majority coupled with silence from the remainder of the majority can lead to the oppression of a minority. In fact, if I'm right then a single member and a silent majority could create an oppressive atmosphere for a minority. (Imagine how Catholics might feel if a single filmmaker created a horridly anti-Catholic film and the majority Protestant community in America said nothing whatsoever against the film. It seems fairly plausible (if not obvious) that many Catholics would take the absence of condemnation of the film to imply agreement with its content.)

So you would be okay with outlawing such anti-Catholic films in that situation, then? The single member's action is the equivalent of the majority. It is a hateful film against a minority, which is the equivalent of violence. Therefore, you should be fine with outlawing anti-Catholic films.

It's strange that you can't see how what you're advocating is the very definition of thought crime. You seem to hold it as something specifically to help women (because you by definition can't be part of the problem). Yet, your explanation works for any minority group. You keep stressing the "half the population" part, but why just half? Shouldn't it be more offensive the smaller the minority group, as they are even less able to defend themselves? Since you don't even define "hate" or how harms members of the minority group, your framework would justify banning anything that offended anybody, or made anyone feel uncomfortable.
posted by Sangermaine at 11:21 AM on June 12, 2008


oddman: At what point, in your estimation, do these thoughts/actions become something that should "clearly be illegal"?

I don't see how labeling women as a "minority group" has any bearing on anything either, surely you aren't saying that the same video from a misandristic point of view would be acceptable, correct?

Assuming you agree on that point then there is a huge amount of art, music, literature which pass your test for "clearly should be illegal" because they feature women taking violent revenge on men, blacks on whites, gays on straights, etc. All these people should be arrested?
posted by Cosine at 12:13 PM on June 12, 2008


I posted a little about this in the free speech/hate speech FPP, but it seems appropriate here, as well.

Oddman, I appreciate your sincerity and your struggle over this. But friends of mine in Canada, who run a gay and lesbian bookstore in Vancouver, have been fighting Canada Customs for more than 20 years because Canada Customs has used Canada's obscenity laws to censor and confiscated books by, for, and about GLBT people and issues. 70% of the material confiscated by Canada Customs' is gay and lesbian books and magazines. CC has said that books that depict gay or lesbian sex are "degrading." They have stopped shipments at the border that contain Jane Rule books, for crying out loud.

The obscenity law was certainly well-intentioned, but it's been a horrible double-edged sword that's cost independant glbt bookstores huge amounts of time and money, and sometimes their businesses.
posted by rtha at 12:27 PM on June 12, 2008 [1 favorite]


Cosine, actions should be clearly illegal when they harm someone else. As to your second poin, I don't see how a power-minority could oppress the majority group. To oppress a group you have to have power over them (even if you never use it). To address your general claim, yes I'd happily outlaw misandrist videos (if they can be shown to actually harm men). I do not, at first glance, think that the list you provide at the end necessarily causes harm. A movie, let's say, in which there is a violent, vengeful act is not necessarily misanthropic.

Many of you have challenged me on the grounds that I am in favor of outlawing thought crimes. I am not. I have maintained, consistently, that a video, the created thing, that leads to actual harm being visited upon a group is the thing I would outlaw. I do not wish to outlaw something as nebulous as an attitude toward a group, nor would I outlaw a video if empirical research showed it to have no damaging effect. (This last empirical fact seem to be the thing that we disagree on. Feel free to continue painting me as a fascist. It's your loss.)

rtha, your example gets at a central problem: who gets to judge whether something is harmful? In your example the GLBT community has no complaints, and it's hard to see how any evidence could be brought forward by a paternalistic agent claiming to act on behalf of society. For these reasons I do not think that your example is exactly analogous to the case at hand. Although, again, I agree that it highlights one of the central problems.

Sangermain, first I would like to point out that in the Catholic example I made heavily qualified claims. I am not at all certain that this example is analogous to the misogyny problem. However, if in the Catholic example, someone were to show that the film did in fact harm the Catholic community, then yes I would be in favor of banning it. As I would be in favor of banning any activity which is shown to harm any group (minority or not) in society. I don't think people should be harmed, and I think it's one of the most vital features of a civilization that it protect it's members from internal and external harm. Even to the extent that freedom from harm should trump freedom of expression. I'm funny that way.)

To your other points I doubt very much that any reasonable person, outside of a boring, pedantic philosophical debate, would confuse offense with harm. So, no I don't think that I'm advocating a policy that would lead to some slippery slope outlawing of Barney (which is after all offends many peoples sensibilities).

prefpara & octobersurprise, thanks for the snarky one liners. You can rest assured now that you've helped fill MeFi's daily quota. My point in the rebuttal to miss tea, let me state it more clearly, is that it is counterproductive to tar me with the same brush as a misogynist film maker. While I may be wrong in my views of how to address the problem I certainly do not hate women, and I am willing to listen to alternative suggestions. When one quickly and emphatically denounces well-meaning but badly misguided allies, which is how I presume Miss Tea sees me, one does nothing more than create enemies and make the work at hand even harder. (My tone in that comment was perhaps not the best tone. I was insulted by her comments, and that got the better of me.)

Finally, many of you seem to think that because it would be difficult to define and measure something like harm, that the proper course of action is to not even try. I find this puzzling.
(Of course, you may think the task is impossible and not merely difficult, but I see no reason to think this is so.)
posted by oddman at 2:33 PM on June 12, 2008


"Cosine, actions should be clearly illegal when they harm someone else."

Again, we are back to the beginning, harm to who/what? If you actions hurt my feelings, offend my sensibilities, make my stomach turn, am I being harmed?

"I don't see how a power-minority could oppress the majority group."

I was talking about instigating violence against, which the minority certainly CAN do. Your rules would outlaw all those great woman shooting down her cheating man songs. Should Johnny Cash have been arrested for singing "Delia's Gone"?

"To address your general claim, yes I'd happily outlaw misandrist videos (if they can be shown to actually harm men)."

Yet again you are back to outlawing anything that harms anyone, you want to live in such a state?

"Feel free to continue painting me as a fascist"

Wha? Who said what now?

"I have maintained, consistently, that a video, the created thing, that leads to actual harm being visited upon a group is the thing I would outlaw."

It had better lead DIRECTLY to harm or you are smack back into your thought crime problem again. Also define "leads to", how in the world would you prove it? I ate toast this morning before smacking my wife, is the toast to blame? People need to be held accountable for their own actions, NOT anyone elses.

"As I would be in favor of banning any activity which is shown to harm any group (minority or not) in society"

The hits just keep on coming.

"To your other points I doubt very much that any reasonable person, outside of a boring, pedantic philosophical debate, would confuse offense with harm. So, no I don't think that I'm advocating a policy that would lead to some slippery slope outlawing of Barney (which is after all offends many peoples sensibilities)."

But that is exactly what would happen.

"Finally, many of you seem to think that because it would be difficult to define and measure something like harm, that the proper course of action is to not even try. I find this puzzling."

So you are then of course advocating the banning of smoking, drinking, fatty foods... I give up... so many good points in this thread (admittedly few from myself) and none of them seem to have gotten past your "no one should ever be harmed, arrest everyone" filters...
posted by Cosine at 3:09 PM on June 12, 2008


In your example the GLBT community has no complaints

Well, but there are certainly people in the LGBT community who think that porn is evil, that SM practices are bad and harmful, and that depictions of sex in those contexts - even if the people in the photos or videos are consenting - are degrading, offensive, and even misogynistic. You should have heard the arguments that broke out (probably still break out) amongst some lesbians about magazines like On Our Backs (NSFW!!!). Some of those folks helped write and pass Canada's obscenity law. "It's porn! It's anti-woman! It's degrading! It encourages the objectification of women!" some said. "It's made by and for women! It's sex-positive! Who the fuck are you to tell me what to find hot!" others said.

You shoulda been there. It was really fun.

Not.

So the determination of what's "harmful" isn't always very clear-cut even to those to whom the harm is allegedly being done. Let's say you're a 30 or 40 something North American lesbian. You think that video [blah] is an expression of hate towards women. I am a 30 or 40 something (coy) North American lesbian. I disagree with you. Why are you right and I'm not?

What to do?

And, of course, there are countries where videos that could conceivably fall into this category are illegal to possess, display, and produce. It hasn't helped them raise the equality of women.
posted by rtha at 3:13 PM on June 12, 2008


Oh yeah.

"To your other points I doubt very much that any reasonable person, outside of a boring, pedantic philosophical debate, would confuse offense with harm. So, no I don't think that I'm advocating a policy that would lead to some slippery slope outlawing of Barney (which is after all offends many peoples sensibilities)."

This is exactly what happened to Little Sister's in Canada. That Custom's was actually breaking the law was neither here nor there, since it took the courts years to find (sort of) in favor of Little Sister's. Who then had to drop the fight because they were broke.
posted by rtha at 3:15 PM on June 12, 2008


ARGH! Customs! No apostrophe!

*dope-slaps self*
posted by rtha at 3:16 PM on June 12, 2008


Finally, many of you seem to think that because it would be difficult to define and measure something like harm, that the proper course of action is to not even try. I find this puzzling.

I'm pretty much staying out of the argument, here, but the thing that has struck me more than once on that point is the general notion that if you're having a hard time measuring harm, legislating it is putting the cart yards before the horse. The law of unintended consequences is ever in play, and the unintended consequences of making a law are nothing to sneeze at.
posted by cortex at 3:24 PM on June 12, 2008


Cyrus Sanai, the lawyer who apparently outed Judge Kozinski's porn stash, has been corresponding with a blogger, and commenting on his discovery.
posted by jayder at 3:52 PM on June 12, 2008


actions should be clearly illegal when they harm someone else

This is just off the top of my head, but here are some examples of actions which would, presumably, be illegal in your utopia:
- violent action taken in self defense (hi, England!)
- opening a successful competing business in your industry
- publicizing the truth about something you have done of which you are ashamed
- publicizing scientific data which undercuts the tenets of your religious, political, or psychological beliefs
- divorce
- gay marriage
- being a comedian (95% of the time)
- picketing/protesting
- a workers' strike
- human drug trials

Many of you have challenged me on the grounds that I am in favor of outlawing thought crimes. I am not. I have maintained, consistently, that a video, the created thing, that leads to actual harm being visited upon a group is the thing I would outlaw. I do not wish to outlaw something as nebulous as an attitude toward a group

Challenge amended to include: dude, "thought crime" does not mean what you think it means. Also applies to:
"clearly"
"actual harm"
"speech" (as in "freedom of speech")

I don't think people should be harmed ... Even to the extent that freedom from harm should trump freedom of expression.

Riddle: if you take away my freedom of speech, you are harming me. The harm is neither trivial nor negligible. You're harming yourself, too, but luckily, you don't realize it yet (perhaps because you're under the impression that you would get to decide what speech should be OK and what speech should be do-not-pass-go).
posted by prefpara at 3:58 PM on June 12, 2008


Ok, people, I'm tired of defending my view against obtuse interpretations of what you all think I'm saying.

If you honestly feel that outlawing something like misogynist actions will lead to outlawing fatty foods or constitute an intolerable violation of free speech (which is of course restricted in all sorts of ways already e.g. you are not free to libel) or that it's a doomed problem because for some reason we will find it impossible to settle on an acceptable definition of harm (it's a good thing that we were somehow miraculously able to define assault), then you and I have such a distant understanding of what these words mean and what these concepts pick out that frankly I'm amazed that we've been able to communicate even this much.
posted by oddman at 5:22 PM on June 12, 2008


Oddman, I don't know if you'll be back or not, or if you'll remove this thread from you recent activity, or what. But I'm still wondering about this, which you said waaaaaay upthread: However, it does seem to me to be the case that video created explicitly as an expression of hate against more than half of the population is highly problematic.

What are your standards for what constitutes this misogynistic video? What if your standards are different from my standards?

In your example earlier you suggested that Catholics would rightly be upset if an anti-Catholic film were released and no Protestants stood up to object to it. That's already happened, kind of. Catholics (well, lots of them, probably not every single one) were hugely upset by The Last Temptation of Christ, which they viewed as being profoundly anti-Catholic. Other people, Catholic and not, didn't see it that way. Who's right? Who decides?

If a film is released where it's nothing but "Women suck! All women should die, and here's how to do it!" I might come closer to seeing your point (but still not necessarily agreeing with it). But what if it's a film where a female character is beaten and raped? Where female characters are shown conniving stalkers who terrify the men they stalk? Where female characters are shown as shallow, shopping-obsessed airheads who are only interested in shoes and rich men? All of those portrayals are arguably misogynistic. Do we ban them?
posted by rtha at 6:09 PM on June 12, 2008


I'm tired of defending my view against obtuse interpretations of what you all think I'm saying.

Alternate explanation: you use vague, undefined terms sloppily, refuse to articulate your position in a consistent manner, and rely on assumptions and assertions. Then, you demand that we use specific terms with precision and define them, articulate our position in a consistent manner, and explain our arguments.
posted by prefpara at 7:41 PM on June 12, 2008


As for the, um, original topic of the post: apparently, Kozinski is now calling for an investigation of himself.
posted by prefpara at 8:36 PM on June 12, 2008


Also: Lawrence Lessig explains how this all happened. Apparently a disgruntled litigant found a way to spider the site in spite of a robots.txt & restrictive directory permissions, then shopped the results to muckraking press.
posted by scalefree at 3:53 AM on June 13, 2008


While I may be wrong in my views of how to address the problem I certainly do not hate women, and I am willing to listen to alternative suggestions.

I don't think you hate women, but you don't listen to alternative suggestions. When a woman objected to your plan to protect women you curtly dismissed her. That sounds pretty typically male to me.
posted by octobersurprise at 6:51 AM on June 13, 2008


Oddman: yes, you say that you're going out, but even if you're just reading, definitely go back and see how you addressed Miss Tea. I would say that infantilizing women would be directly harming them. If they're too weak to take some speech, are they too weak to join the work force? Maybe just too weak to take the high stress (and coincidentally well-paying) positions? I know that you didn't even hint at the latter two positions, but it's on the same slippery slope.

In your second comment you say that all misogynistic sex needs to be outlawed - but I didn't notice you recanting from that? You said you couldn't imagine psychologically healthy beings having fun with that. Ms. Nobeagle and I are apparently psychologically healthy. We're both feminists. But you're saying that we can't engage in the occaisional rape fantasy, or any power play where she's not the dom? Or is she not allowed to be a dom, as that might be misandrist for her to beat a male slave for having the temerity to meet her gaze?

I would think that rape fantasy is rather up there on the misogynistic scale. However if you view the wikipedia page, it's not something that 1% of women of the population ever consider, and strictly limited to the occupants of mental institutions. It's not a situation where Ms. nobeagle says that she's not in the mood and I say, "Oooh, rape fantasy time." What two consenting adults do should be legal under the vast majority, if not all, situations; or one is setting a really bad precedent towards freedom.

The world is rarely black and white, and aiming for some middle grey seems dangerous to me and a lot of others.
posted by nobeagle at 7:41 AM on June 13, 2008


Also, oddman, how can you demand that we take you seriously when you've said that people of whose attitudes you disapprove are mentally ill and should be forbidden from expressing their thoughts freely? I don't feel like giving you any more benefit of the doubt than you've demonstrated.
posted by prefpara at 8:43 AM on June 13, 2008


Kozinski on the Dating Game.*
posted by ericb at 4:48 PM on June 14, 2008


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