After being interviewed for the article, Kozinski immediately blocked public access to the site. Two days after the story was published, he declared a mistrial in the obscenity case and called for an investigation of his own actions. Because Kozinski is chief judge of the 9th Circuit, the case was transferred to the 3rd Circuit.
Kozinski's supporters saw vindication in the outcome, noting that the panel accepted his position that he had never intended the material to become public and that the judges had not censured or reprimanded him.
"The conduct involved was intended to be private. The judge took reasonable, although insufficient, steps to keep it private, and that behavior does not constitute judicial misconduct," said Steven Lubet of the Northwestern University School of Law, one of five legal scholars who wrote to the panel stating that Kozinski had committed no misconduct.
Arthur Hellman, a University of Pittsburgh law professor who has written about the 9th Circuit and the federal judicial disciplinary process, said in a telephone interview Thursday that the opinion was a "very carefully, very self-consciously written decision."
"It's wrong to say it cleared him," Hellman said. "The opinion very carefully does not say that."
The panel noted that "some media reports in June 2008" were incorrect when they "suggested that the judge maintained, and intended to maintain, a public website." The opinion did not say which publications had used that description. The Times stories referred to the site as "publicly accessible." The opinion affirmed that the site was "publicly accessible" and traced the history of Kozinski's actions regarding access to it.
According to the opinion, Kozinski decided to connect his family's private server to the Internet in 2002, "as a convenient means to access personal files while away from home." Items in the "/stuff" directory, where the explicit files were located, were moved onto the server. Kozinski testified that he'd been collecting the items over the years, and that some had never been opened.
As The Times reported in earlier stories, visitors to the server were greeted with a screen that read: "Ain't nothing here. Y'all best be moving on, Compadre."
Only users who knew to add "/stuff" to the address would have found the objectionable material, which was "a small fraction of a vast aggregation of various items that the judge had received by e-mail over many years," according to the opinion.
