Cristina Perez - Five Minute Recess

First Amendment issues are more prevalent than ever–from cyberspace to the ‘old school’ entertainment industry. Censorship in the entertainment industry will always be a hot topic. If certain content is ultimately displayed, purposefully or accidentally, networks can be significantly fined and publicly roasted.

Have we come a long way from “Leave It to Beaver?” Have you noticed that what was once considered inappropriate or obscene is now more tolerable? So, you may ask, what does “obscenity” even mean?

Constitutional Law 101: According to the infamous Miller v. California case, the Supreme Court stated that ‘obscenity’ is that subset of pornography—sexually explicit speech—which is (1) prurient; (2) patently offensive; and (3) lacking in significant scientific, literary, artistic or political value. The definition is determined by local community standards where the claims have been brought and using a “reasonable person” test.

So, what is considered acceptable content to a Los Angeles resident would definitely not fly with a Mississippian. Doesn’t this really mean unequal results? Yes! I’ve noticed that when one tries to apply local standards to national content generally the conservative opinion of the community prevails.

Now, how’s this for judicial entertainment. Listen up!

This week, Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged that he had posted explicit content materials on his personal Web site. Why is this important you ask? Because he is currently presiding over a sensational trial in Los Angeles involving the definition of “criminally obscene,” in which a filmmaker is accused of distributing videos depicting bestiality and hard core sex.

According to the Los Angeles Times, Kozinski’s material included a photograph of naked women on all fours painted like a farm animals, a video of a half-dressed man prancing around with a sexually aroused farm animal, images of masturbation, public and contortionist sex, a slide show striptease featuring a transsexual, a series of photographs of women’s crotches as seen through snug fitting clothing or underwear, and content with themes of defecation and urination. The newspaper said he also planned to delete a graphic step-by-step pictorial of a woman shaving her pubic hair.

Oddly, Kozinski, told the Times that he thought his Web site was private and that he was not aware the images could be seen by the public. He also said he had shared some material on the Web site with friends.

So, if the content was for his private viewing why would he share it? Kozinski also stated that the material is “degrading,” “just gross,” inappropriate, while other content he believed was “funny.”

Are you kidding me? Ok, some may argue this is art and a form of free expression but in the eyes of some the content is considered obscene. Now, while the material on his Web site and the pending case are quite different—some may not think so. I guess we should ask the Mississippian. Oh . . . my mistake, the trial is in Los Angeles, so a different “Los Angeles reasonable person” test will be applied to the facts of the case.

So, again I ask, why is this all relevant? You might even be saying, what’s the big deal? Who cares what he does on his own free time? He’s human. We all make mistakes in judgment. But, would this even be an issue if he viewed the material and did not post it?

Still, doesn’t this create an inherent conflict of interest on the pending trial? Can he impartially apply the law to the facts of the pending case? Should he recuse himself? Although he has not recused himself, just yesterday, Kozinski suspended the case. Hummm . . . interesting!

Some may consider Kozinski’s comments to the Times as odd, in that he said he didn’t think any of the material he posted on his Web site would qualify as obscene. Maybe so. But he continued by stating, “Is it prurient? I don’t know what to tell you. . . . I think it’s odd and interesting. It’s part of life.”

I guess the content in the trial he presides over is just “part of life” or maybe “funny” too.

See you in Court!