Social media endorsements

The prohibition on judges’ publicly endorsing political candidates applies on social media just as it does on any other forum or in any other format.  See California Judges’ Association Advisory Opinion 66 (2010).  The Mississippi Supreme Court recently reprimanded a judge for endorsing a political candidate on social media, in addition to other misconduct.  Commission on Judicial Performance v. Clinkscales (Mississippi Supreme Court June 9, 2016).  The judge had posted:  “Cast your vote in the Senate District 16 Special Election.  I will be voting for Angela Turner Lairy! . . .  Let’s not lose this seat!”  See also Inquiry Concerning Krause, 166 So. 3d 176 (Florida 2015) (30-day suspension without pay for a judge who used social media to ask her friends to help her judicial candidate-husband correct perceived misstatements by his opponent); In the Matter of Romero (New Mexico Supreme Court February 13, 2015) (permanent retirement of a judge who had endorsed candidates for public office on Facebook and continued to endorse them and post their campaign materials there after telling the Judicial Standards Commission he would stop).

The act of “liking” a campaign on Facebook, becoming a fan or “friending,” or the equivalent indication of support or approval of a candidate on any social media also constitutes an endorsement and, therefore, is prohibited.  See Massachusetts Advisory Opinion 2016-1; New Mexico Advisory Opinion Concerning Social Media (2016); New York Advisory Opinion 2015-121U.S. Advisory Opinion 112 (2014); ABA Formal Opinion 462 (2013).  See also Kansas Commission on Judicial Qualifications 2012 Annual Report (private cease and desist order for judge who “liked” a comment on a candidate’s Facebook page); Order of private reprimand (Kentucky Judicial Conduct Commission December 5, 2014) (private reprimand of a judge who “liked” the Facebook pages of lawyers and a judicial candidate and posted offensive comments about a lawyer on Facebook); Order of private reprimand (Kentucky Judicial Conduct Commission April 2, 2015 (private reprimand of a judge who “liked” the Facebook pages of lawyers, law firms, and candidates).

The prohibition on endorsements applies to judicial candidates as well as judges.  Thus, the Kentucky Judicial Conduct Commission publicly reprimanded a judicial candidate for “liking” a Facebook post that publicly endorsed a candidate for public office and making a contribution to a candidate.  In the Matter of Cohen, Agreed order of public reprimand (Kentucky Judicial Conduct Commission July 21, 2014).

At least 2 judicial ethics advisory committees have distinguished between social media “friending” of elected officials or individuals who are candidates and “liking” an election-related Facebook page, permitting the former and prohibiting the latter.  Noting many judges are friends in the real world with individuals who are running for office, the Utah committee stated that a judge may also be “friends” in the virtual world of social media with those candidates without violating the prohibition on endorsements.  Utah Informal Advisory Opinion 2012-1.  However, the committee warned judges to be careful about making any statements on the social media page that might create the appearance of an endorsement.  Moreover, noting many individuals who are candidates “have a Facebook page specifically designed to promote the individual’s candidacy,” the Committee advised that judges “may not be a ‘friend’ on that type of webpage, as that may constitute endorsement.”

Similarly, the Arizona committee stated that, if a state representative, for example, is running for re-election, a judge “may not be a ‘friend’ of the campaign committee’s Facebook page or ‘like’ that page, as such associations would indicate that the judge supports and is endorsing that individual’s reelection.”  Arizona Advisory Opinion 2014-1.  The committee noted that, if a judge clicks “like” on a Facebook page, her Facebook profile will thereafter indicate that she “likes” that other page.  However, the committee concluded that friending an elected state representative’s official Facebook page is not a prohibited endorsement (although it could raise a disqualification issue in a case in which the representative is a litigant, lawyer, witness, or other participant).

Most states have the prohibition on endorsements by judges and judicial candidates in their codes of judicial conduct, although some states allow endorsements of at least some judicial candidates at least at certain times.  Rule 4.1(A)(3) of the ABA Model Code of Judicial Conduct, for example, provides that a judge or judicial candidate shall not “publicly endorse or oppose a candidate for any public office,” while Rule 4.2(B)(3) allows a judicial candidate, including an incumbent judge running for re-election, “to publicly endorse or oppose candidates for the same judicial office for which he or she is running.”  The endorsement clause has survived constitutional challenge, most recently in Wolfson v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016).

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