Is a judge's private life relevant to his court rulings? In a dissenting judgment in 2001, Judge Alex Kozinski, of the United States Court of Appeals, Ninth Circuit, stated that the private life of a judge was not relevant to the validity of a decision he had made in court. His colleagues disagreed, rejecting Judge Kozinski’s warning: “Welcome to the fishbowl.” Now the private life of Judge Kozinski himself is under investigation.

Judge Kozinski was appointed to the Court of Appeals by President Reagan in 1985 at the age of 35. Since 2007, he has been the chief judge of the Ninth Circuit. In June he was sitting as a trial judge in Los Angeles presiding over the hearing of criminal charges of obscenity against a Hollywood adult film producer, Ira Isaacs, accused of making and selling DVDs showing bestiality, defaecation and other extreme fetishes. Mr Isaacs’s defence is that he is a “shock artist” with the constitutional right to free speech.

A Beverly Hills lawyer, Cyrus Sanai, who has a long-standing dispute with the Ninth Circuit relating to his parents’ divorce, but is unconnected with the Isaacs case, discovered that outsiders could obtain access to Judge Kozinski’s personal website. He found that it included salacious sexual material (widely available on the internet) such as photographs of naked women on all fours painted to look like cows. The press was informed and the details published.

In an interview with the Los Angeles Times, Judge Kozinski explained that he did not know that the content of the website could be seen by the public. As soon as he heard about this, public access was removed. The site had been set up by his son, Yale, a film editor, in whose name it was registered, for all family members, and it also contained family photos and a collection of the judge’s published articles. Yale told The New York Times that it was his mistake in configuring the site that made it publicly accessible.

Judge Kozinski admitted posting some of the sexual content on the website. None of the material was obscene but the judge acknowledged that parts of it were “degrading” and stated that they would be deleted. When asked whether it was “prurient”, he told the Los Angeles Times: “I think it’s odd and interesting. It’s part of life.” The judge’s wife said that the sexual material constituted a “tiny percentage” of the site’s contents. They were “raunchy humour”. Her husband “is not into porn — he is into funny — and sometimes funny has a sexual character”.

Judge Kozinski declared a mistrial of the obscenity case and announced that he would take no part in a retrial. He asked the Judicial Council of the Ninth Circuit to investigate the episode under the rules governing judicial conduct. The Ninth Circuit issued an order stating that they interpreted the request as “a complaint of judicial misconduct” made by Judge Kozinski against himself. A panel of five judges from the Third Circuit, based in Philadelphia, is now investigating.

That a federal case should be made of Judge Kozinski’s website is almost as bizarre as the DVDs sold by Mr Isaacs. There is no suggestion that the material collected by the judge was unlawful. It was for his private entertainment. It is a matter for the judge whether to spend his leisure time collecting stamps, learning to speak Chinese or looking at saucy pictures of naked women. The response of the investigating panel of the Third Circuit should be similar to that of the juror in Hamilton County, Cincinnati, in 2004 who was hearing an obscenity case concerning a video, Maximum Hardcore Extreme, Volume 7. The trial had to be abandoned when, during the showing of the offending video, the juror dozed off.

Judge Kozinski made two mistakes. He, and his son, should have taken greater care to ensure that there was no public access to his private domain, if only to avoid the embarrassment that has resulted. And he should not have made what the Ninth Circuit regarded as a complaint against his own conduct. That was wrongly to give credence to the suggestion that he was guilty of misconduct relevant to his judicial office. But then, sex does make people behave in irrational and unpredictable ways.

Judge Richard Posner, of the United States Court of Appeals, Seventh Circuit, began his 1992 book Sex and Reason by suggesting that “judges know next to nothing” about sex, “beyond their own personal experience, which is limited”. That a judge should now be the subject of a disciplinary inquiry for showing an interest in sex is a perversion of justice. In 2002, Judge Kozinski dismissed a complaint by Mattel Inc that MCA Records had unlawfully used the name of its product, the Barbie doll, in making and distributing Aqua’s hit record Barbie Girl. The investigating panel could do no better than echo the concluding words of that judgment: “The parties are advised to chill.”

The author is a practising barrister at Blackstone Chambers in the Temple and a Fellow of All Souls College, Oxford

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