Kozinski Wins on Disabling Federal Court Filters; Scott Glover Worries Instead About Some E-Mail Gag List
Amazing. Scott Glover of the L.A. Times authors a story about a 20-page decision (.pdf) from the Judicial Council of the Third Circuit Court of Appeals, relating to significant issues of censorship and national security — and Glover focuses the entire story on an inconsequential footnote about an e-mail gag list. Why? Because Glover wrote a story about the gag list. So that’s what he cares about.
The opinion dismisses a complaint against Chief Judge Alex Kozinski for allegedly disabling electronic sensors (in effect content filters) from the computers for three federal circuit courts of appeals. The topic of the opinion was the subject of great controversy when the events in question occurred, with accusations and defenses appearing in the pages of the Wall Street Journal and the New York Times. The controversy pitted Kozinski’s libertarian views (that the employees of the federal courts must be trusted to access any sort of material without censorship) against security concerns raised by the former Director of the Administrative Office of the U.S. Courts (maintaining that Judge Kozinski’s actions created a security breach that potentially opened our country’s most guarded secrets to the scrutiny of any talented hacker with an internet connection). The opinion addresses the contentions at length and determines that the complaint must be dismissed because it was previously litigated and decided years ago:
The Complaint seeks to reopen a matter addressed and completely resolved in 2001 by the Judicial conference of the United States. No further review is warranted. Reopening this matter would disregard the finality of the resolution in 2001, and any new inquiry would not only be improper but would also be prejudiced by the unexplained and unreasonable delay in the filing of the Complaint. Accordingly, we will dismiss the Complaint.
Oh — and also, the Judicial Council drops a footnote — the last of 10 footnotes, in fact — mentioning Judge Kozinski’s e-mail gag list which he used to send “ribald jokes” over a few years. The opinion notes that Kozinski has discontinued the list and apologized — which, the Judicial Council says, is enough to conclude the matter. Reading the brief footnote, you can easily picture the judges shrugging their shoulders as they are forced to discuss this trivial issue. Yawn.
And yet . . . what does reporter Scott Glover see as the big story here?
The apology for the gag list.
I kid you not.
The story is titled “Judge Alex Kozinski apologizes for distributing crude jokes.” The deck headline reads: “A panel concludes its investigation of the 9th Circuit’s chief judge after he says he has stopped e-mailing his ‘gag list.’ No action is taken against him.” And the opening lines state:
Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, has apologized for having maintained an e-mail “gag list” in which he distributed crude jokes and other humorous material, according to an opinion made public Tuesday.
Nowhere does Glover’s story mention that this momentous issue was decided via a footnote. Which is more than it deserved.
Paragraphs 8 and 9 of Glover’s 10-paragraph story mention the electronic filters issue, in passing (“The Judicial Council dismissed that complaint too . . .”). But what’s a story about disabling electronic filters to three federal courts of appeals, when there’s a footnote about an e-mail gag list to write about?!?!?!
Naturally, Glover considers the gag list story to be important, because he thinks he is the guy who broke that “story.” The fact that it is a stupid non-story does not trump that pride of ownership.
Actually, as I demonstrated in this December 2008 post, Glover didn’t even break the story; the Wall Street Journal Law Blog had already published about the gag list several months earlier. Nor was the story significant; in my post, I gave several specific examples of the silly jokes sent on the gag list. As I said in my post: “So the L.A. Times has published an old story, about humorous jokes sent to consenting adults. Again, how is this a story?”
Answer: it wasn’t. And a Judicial Council’s minor footnote addressing it doesn’t change that fact.
P.S. I just found Glover’s article for his student newspaper from July 21, 1969:
Yesterday astronaut Neil Armstrong was overheard cracking inappropriate jokes while eating cornflakes and Tang. Several shocked observers reported an inappropriate analogy from the normally reserved astronaut involving rockets and craters. Inquiries from the Los Angeles Times reveal that an investigation may or may not occur.
Also, Armstrong became the first man to walk on the moon yesterday.
He’s always had a nose for news!