Peter Scheer, a lawyer, journalist, and executive director of the California First Amendment Coalition (CFAC)writes the following although he might reconsider his first sentence:

As the whole world now knows, federal appeals court judge Alex Kozinski has looked website. This revelation, and the invasion of privacy that it entails, are apparently justified by the fact that Kozinski is currently presiding, as a temporary trial judge, over a high-profile obscenity prosecution in Los Angeles.

Before this public flogging of a gifted jurist proceeds much further, let’s stop to consider that Kozinski has done nothing illegal. The files on his computer, while certainly embarrassing, are constitutionally protected.

Kozinski has the right, under the First Amendment, to possess pornographic materials on his own computer. It is a right that we all have, and for good reason: in a free society, government has no business regulating private choices about what movies to see, books to read or photos to view.

Although Kozinski is a public figure, he has done nothing in his public life to invite this scrutiny of his private life. Former New York Governor Eliot Spitzer had, as a prosecutor, aggressively pursued prostitutes and their customers. Senator Larry Craig, before getting busted for soliciting sex in a public bathroom, had exploited anti-gay sentiment for political advantage. But Kozinski doesn’t fit the role of hypocrite-gets-his-due. He is miscast in this stock morality tale of politics and scandal.

If Kozinski is removed from the LA obscenity trial because he has viewed and owns pornographic materials, then the judge who replaces him and the judges who hear appeals in the case also will have to be screened for exposure to pornography. Do we really want to go down this road?

Even though Kozinski has done nothing wrong, he is being pressed from all sides to disqualify himself from the federal trial of smut producer Ira Isaacs, presumably on the theory that because Kozinski has viewed pornography, and owns pornography, he cannot be objective in making evidentiary and legal rulings in the case.

Fine. But if Kozinski is removed from the case on that basis, any judge assigned to replace him must also be disqualified if he or she has viewed or possesses pornographic materials. Ditto for the appellate judges who will decide the appeals from the obscenity prosecution. Will all the judges be required to consent to an inspection of their hard drives? Will they be interrogated under oath about their sexual tastes and practices?

This, I submit, is not a road that we should go down.

Kozinski has been done a terrible disservice by whoever leaked to news organizations personal files from the judge’s computer and private website. Let’s not compound this unfairness by setting a precedent that we will come to regret.

P.S. Full disclosure: Alex Kozinski is a friend. (A distant friend, but a friend nonetheless.)