In case you hadn’t heard Judge Kozinski just decided to recuse himself from the obscenity trial of Ira Issaacs because of the controversial pictures found in a (mistakenly) publicly accessible directory on his website. Reading the LA times article I linked above might give you the impression someone stumbled across his porn stash but an email from his wife and the comments in response to the Volokh Conspiracy coverage reveals that it wasn’t so much porn as crude humor. The most offensive content seems to have been either a man trying to relieve himself forced to flee from an aroused donkey or a (likely faked) picture of a young man fellating himself captioned with a spoof on the mastercard ‘priceless’ commercials. Hardly hard core content and even if it had been so what? The judge’s material was hosted on a private computer (possibly uploaded by his son) and (with the exceptions of minor copyright violations) there is no serious argument that he is guilty of any crime.

In fact I find it downright worrisome that judges can be forced to recuse themselves from an obscenity trial because they have tastes that some people find offensive. In effect if we demand that judges who are known to like risque pictures recuse themselves from obscenity cases we bias the pool of judges in a puritanical direction, much like death qualifying a jury biases them towards conviction. Now some might argue that a judge is obligated to recuse himself in a situation like this on the grounds that it demonstrates a conflict of interest but that argument is easily shown to be flawed.

Presumably the reason one might think there is a conflict of interest is that if Kozinski likes looking at risque photos he might feel greater affinity for the defendant or want to keep such images legal. However, if valid this argument would apply equally strongly to the judge who doesn’t like looking at risque pictures or finds them disgusting/offensive. After all if you find porn objectionable you probably have an even stronger motivation to find for the prosecution than someone who found some risque pictures amusing had to find for the defense. But of course no one would dream of demanding a judge recuse themselves because they dislike pornography.

If you still think Kozinski is obligated to recuse himself try replacing a pornography with death metal and check if the arguments still holds. Imagine that the government brought an obscenity prosecution against a band for playing some offensive kind of rock and roll back in the 50s or 60s (suppose Slayer was teleported back in time). Should judges have to recuse themselves in this case because they have been observed by members of the public rocking out in their car? Or most realistically suppose there was an obscenity prosecution over a book depicting child sexuality. Should a judge who read Lolita in college have to recuse themselves? What if they publicly admitted it was their favorite book thereby prompting a public outcry?

Ultimately judges are what stands in the way of tyranny by the majority (or minority who shames the majority into submission) and it’s harder for them to do that if they can be shamed into recusal because they aren’t sufficiently prudish. Unfortunately, because pornography is a sexual taboo there is an unfortunate tendency against defending it. Despite the vast numbers of people who consume internet porn no one wants to tell a news reporter they do, or even vigorously defend the practice lest their mom or aunt or whoever read this in the paper. This let’s people get away with ridiculous errors in logic that would be obviously absurd in any other context. Just in searching for background on this subject I ran into several articles that cast the general tendency of people to get bored with stuff they have already seen/done as if it was akin to drug addiction in the case of pornography. This situation with judge Kozinski is just another example that would never have happened if people didn’t shut off their brains when the issue of pornography came up.