Legal blogs are a-buzzin’ over the story of the porn stash of Alex Kozinski, Chief Justice of the 9th Circuit Court of Appeals. Some time ago Kozinski posted sexually explicit pictures on his personal, publicly-available website. The pictures have since been removed. I’ve read nothing to suggest that the pictures were obscene or otherwise outside the protection of the First Amendment but their presence on Kozinski’s website is news because (1) he is one of the highest-ranking federal judges in the country, (2) Kozinski has courted notoriety before (follow the links for details), (3) he is presiding over an obscenity case in Los Angeles from which some calling for his recusal, and (4) well, it’s porn. I intended to ignore the whole kerfluffle–Kozinski is guilty of bad judgment, perhaps, but so what?–then remembered that Internet law students know Kozinski as the author of the majority and subsequent en banc opinions in Fair Housing Councils v. Roommates.com CDA s.230. Trivial news, I know, on a day when the U.S. Supreme Court slapped down the Bush administration and ruled 5-4 that Guantanamo detainees have the right to habeas corpus, but in 11 hours I’m leaving for a week-long bike trip across Oregon and the Kozinski porn story better fits my mood.
Last week the 9th Circuit Court of Appeals issued its decision in Kahle v Gonzales, rejecting the plaintiffs’ argument that Congress’s transformation of copyright protection from an “opt-in” system to an “opt-out” system requires First Amendment strict scrutiny analysis. The plaintiffs supported their challenge with a theory implied from the Supreme Court’s decision in Eldred v Ashcroft, the 2003 decision rejecting Constitutional challenges to the Sonny Bono Copyright Term Extension Act of 1998. The 9th Circuit ruled that the Supreme Court’s Eldred decision “effectively addressed and denied Plaintiffs’ arguments” and affirmed the district court’s dismissal of their complaint. Christopher Sprigman and Larry Lessig–plaintiffs’ counsel, along with Jennifer Granick–posted comments on the 9th Circuit’s decision here and here.