How the L.A. Times became a party to a vexatious litigant's smear campaign.
BY JAMES TARANTO
The American Spectator, September 2008
It seemed like a sexy story in more ways than one: "One of the highest-ranking federal judges in the United States, who is currently presiding over an obscenity trial in Los Angeles, has maintained a publicly accessible website featuring sexually explicit photos and videos," the Los Angeles Times reported on its website June 11.
The only problem was, it wasn't true--or at least it was nowhere near as bad as the Times's lead made it sound.
The jurist in question, Alex Kozinski, is chief judge of the Ninth U.S. Circuit Court of Appeals. (Disclosure: he has been my friend since 1994.) As the initial LATimes.com story noted, Kozinski "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 Kozinski's server was not password-protected, neither was the public invited to surf it, as the Times acknowledged near the end of its 850-word story:
Before the site was taken down, visitors to http://alex.kozinski.com were greeted with the message: "Ain't nothin' here. Y'all best be movin' on, compadre."Some of the material in question was "explicit," but it was ribald rather than erotic. Anyone who knows Judge Kozinski will attest that he has a taste for juvenile humor: "Alex is not into porn--he is into funny," his wife, Marcy Tiffany, wrote in a letter to Ninth Circuit spouses after the controversy erupted. One example was what the Times described as "a video of a half-dressed man cavorting with a sexually aroused farm animal." The San Francisco Chronicle elevated this to "images of bestiality." In fact, the video shows a farmer, his pants falling down apparently because he had been attempting to use his field in lieu of a toilet, trying to get away from an overexcited donkey. It is popular on YouTube, having been viewed more than 100,000 times. The Chronicle issued a correction and scrubbed the bestiality reference from its website, but the headline still refers to Kozinski's "steamy Web site."
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.
The Times, in a smarmy June 13 editorial, defended Kozinski, but only on First Amendment grounds: "Any adult has, and ought to have, the right to view those sites and to download those photos and videos. . . . It makes no difference whether the person with the porn site is left or right, smart or dull, a judge or anybody else." The editorial also called on him to recuse himself from the obscenity trial "because the website controversy has become a distraction and will undermine public trust in the verdict." This he did. He also asked for an investigation to clear his name, which is being conducted by colleagues on the Philadelphia-based Third Circuit.
Scott Glover, the Times reporter who broke the story, did not initially reveal his source. In a follow-up three days later, he disclosed that he got the files from "Beverly Hills attorney Cyrus Sanai, who was engaged in a dispute with the judge." This was all that the Times ever told its readers about Sanai. Here is the rest of the story:
The Sanai-Kozinski dispute began with a September 2005 article by Sanai in the Recorder, a San Francisco-based newspaper for lawyers. Titled "Taking the Kozinski Challenge," it criticized Kozinski's defense, in testimony before Congress, of a federal rule barring judges from citing unpublished decisions as precedent. Kozinski fired back a week later with an article of his own, in which he noted that Sanai had failed to disclose his interest in the matter:
Mr. Sanai's article urges us to "grant en banc rehearing [an appeal before an 11-judge panel] of the next decision, published or unpublished, which asks the court to resolve the split among H.C., Napolitano and Mothershed." A petition for en banc rehearing raising this very issue crossed my desk just as Mr. Sanai's article appeared in print. The name of the case? Sanai v. Sanai.Earlier, a three-judge Ninth Circuit panel had thrown out Sanai's lawsuit seeking federal jurisdiction over his parents' prolonged divorce case. Kozinski noted that Sanai "and certain members of his family have hounded a state trial judge off their case . . .; been held in contempt . . . and had their ninth sortie to our court in the same case designated as 'frivolous' and 'an improper dilatory tactic' by the district court. A detached observer, Mr. Sanai is not."
Sanai responded to this by filing a misconduct complaint against Kozinski, alleging that the judge had improperly commented on the merits of a pending case. In December 2006, then Chief Judge Mary Schroeder ruled in Kozinski's favor. She noted that because the 11-judge panel had unanimously rejected Sanai's petition for a rehearing, "[Kozinski's] statements could not affect any vote on the matter." She also said that Kozinski had apologized for any appearance of impropriety.
The online version of Kozinski's article included a link to a document from the state trial judge, Joseph Thibodeau, which Kozinski had placed on alex.kozinski.com. This is how Sanai came to visit Kozinski's server. "I discovered this information on Xmas Eve, 2007," Sanai wrote in an e-mail to blogger Howard Bashman. "I was interested in his site because of my renewed misconduct complaint against Judge Kozinski, which focused on, among other things, his placement of the transcript of Judge Thibodeau on alex.kozinski.com."
Sanai apparently began nosing aroundd the server and found a directory called "stuff," which according to Kozinski's wife "contained a hodgepodge of miscellaneous humorous items," some 300 in all, of which about half a dozen were of a sexual nature. By Sanai's account, he downloaded these and pitched the story to several newspapers, including the Recorder, the Los Angeles Times, and the Wall Street Journal. No one bit--until June, when Sanai contacted Glover, who was covering the obscenity trial.
On July 5, three and a half weeks after breaking the story, the paper piled on with a second editorial, opining, based on no new information, that "a woman alleging workplace harassment or discrimination" would "have reason to question [Kozinski's] ability to impartially consider her complaints, given that he apparently enjoys material that demeans women." (To say nothing of donkeys!)
In truth, it is the Times that has failed the test of fairness and honesty. One can see why this might have struck Glover and his editors as an irresistible story. But if they couldn't present it without exaggeration--calling a personal server a "website" and raunchy humor "porn"--they should have realized there wasn't much to it.
Glover never explained the nature of the dispute between Sanai and Kozinski or how Sanai came into possession of the files from Kozinski's server. If he had, his readers would have understood that this was a story not about a judge's perversity or hypocrisy but about new dangers to privacy in the Internet age. Having made the mistake of running with the story, the Times owes readers an explanation of how a vexatious litigant persuaded a major newspaper to become a party to his smear campaign.
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