28 of the 100 elected judges who responded to a 2014 survey said their campaigns had used social media. 2014 Conference of Court Public Information Officers New Media Survey, at page 44. That percentage seems low compared to campaigns for other elective offices and is, therefore, likely to increase. The New Mexico Supreme Court recently acknowledged “the utility of an online presence in judicial election campaigns . . . .” State v. Thomas, 2016 N.M. LEXIS 149 (New Mexico 2016).
A judicial election campaign may use social media to promote the candidate by, for example, creating a Facebook page. (This post will use the terms for actions on Facebook to describe conduct on social media in general, but the principles apply to analogous actions on other social media platforms. Where relevant, this post will also rely on advisory opinions discussing web-sites, not just interactive social media.) As the Florida advisory committee explained, the code of judicial conduct “does not address or restrict a judge’s or campaign committee’s method of communication but rather addresses its substance.” Florida Advisory Opinion 2009-20. Accord North Dakota Advisory Opinion 2016-2; ABA Formal Opinion 462 (2013).
A candidate’s social networking pages may allow visitors to list themselves as “fans” or supporters of the candidate. Florida Advisory Opinion 2009-20. The Florida committee stated that lawyers who practice before the judge may be fans of a judge’s campaign page even though the committee prohibits judges from being Facebook “friends” with lawyers who appear before them. The distinction, the committee explained, is that, unlike a “friend” request on a personal page, on a campaign’s social networking site, the “judge or the campaign cannot accept or reject the listing of the fan,” and, therefore, “the listing of a lawyer’s name does not convey the impression that the lawyer is in a special position to influence the judge.” See also ABA Formal Opinion 462 (2013) (“it is unlikely to raise an ethics issue for a judge if someone ‘likes’ or becomes a ‘fan’ of the judge through the judge’s [electronic social media] political campaign site if the campaign is not required to accept or reject a request in order for a name to appear on the campaign’s page”).
Most judicial ethics opinions on the issue seem to assume, without expressly requiring, that a campaign page will be separate from candidate’s personal or official page. The Missouri committee advised that “when a judge chooses to use social media as part of the judge’s election campaign, best practice would suggest that a separate public social media site be used.” Missouri Advisory Opinion 186 (2015). The committee stated that the “site should be limited to the judge’s identity, qualifications, present position or other facts that are relevant to allowing the voters to make an informed decision.”
The 37 judges who in the 2014 survey said they were not sure if their campaigns used social media should pay more attention in any future campaigns. Keeping informed is the only way a candidate can comply with the code of judicial conduct requirements that a judicial candidate “take reasonable measures to ensure” that the campaign committee does not engage in activity that the candidate is prohibited from doing and “review and approve the content of all campaign statements and materials produced by the candidate or his or her campaign committee . . . before their dissemination.” Rules 4.1(B) and Rule 4.2(A)(3). There is no exception to those requirements for social media even if a judicial candidate entrusts her campaign’s social media component to her campaign committee. (A candidate also retains that responsibility if she delegates maintenance of a social media site to a third person other than a campaign committee. New Mexico Advisory Opinion Concerning Social Media (2016).)
Thus, the candidate is responsible for what the committee places on the internet and must ensure that the committee does not make statements there that the candidate cannot make. See Florida Advisory Opinion 2012-15. For example, the Missouri committee stated that, like judicial candidates, judicial campaign social media sites “must not misrepresent any facts, make pledges or promises of conduct in office other than the faithful and impartial performance of judicial duties or make statements that detract from the dignity of judicial office.” Missouri Advisory Opinion 186 (2015). The requirement that a judicial candidate “maintain the dignity appropriate to judicial office” was deleted from the model code in the 2007 revisions (although the requirement still applies to judges at all times), and many states no longer have it in their rules for judicial campaigns. It does seem like a best practice, however, if not a requirement, for social media efforts and other campaign conduct. See New Mexico Advisory Opinion Concerning Social Media (2016).
A campaign social media page “may not endorse or solicit funds for another candidate for public office” because a judicial candidate may not do so. New Mexico Advisory Opinion Concerning Social Media (2016). This includes any communication of approval or support, such as “liking” another candidate’s social media page.
A judicial candidate who is on a slate with other candidates may, according to the New York advisory committee, permit his campaign committee to add the committees of those other candidates as Facebook “friends” and/or to click “like” on their campaign committees’ pages because that link creates “no more appearance of an impermissible ‘endorsement’ than campaigning door-to-door or appearing in joint advertisements with other candidates,” which is expressly allowed by the code. New York Advisory Opinion 2015-121. However, the committee added that a judicial candidate must instruct his “campaign committee to refrain from any comments that would create an appearance the candidate directly or indirectly publicly endorses other candidates . . . , including by making any comments on other candidates’ qualifications . . . .” Further, the committee emphasized that any such Facebook connections must be made from the committee’s page, not from the candidate’s personal account. See also New York Joint Advisory Opinions 2012-84/2012-95(B)-(G) (a judicial candidate may include a link from her campaign web-site to a political organization’s web-site that contains information promoting her campaign).
All restrictions on judicial candidates and campaigns apply on-line as well as in-person, but the exact rules vary from state-to-state. The model code restrictions (Rule 4.1) that seem particularly relevant to social media prohibit a judicial candidate from:
- Making speeches on behalf of a political organization;
- Publicly endorsing or opposing a candidate for any public office;
- Soliciting funds for a political organization or a candidate for public office;
- Personally soliciting or accepting campaign contributions other than through a campaign committee;
- Publicly identifying as a candidate of a political organization;
- Seeking, accepting, or using endorsements from a political organization;
- Knowingly or with reckless disregard for the truth making a false or misleading statement;
- Making a statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court; and
- In connection with cases, controversies, or issues that are likely to come before the court, making pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.
Because the code prohibits a judicial candidate from personally soliciting campaign funds except through a campaign committee (Rule 4.1(A)(4)), the Florida judicial ethics committee advised that “Websites and Facebook pages promoting the candidacy of a judge or judicial candidates should be established and maintained by these committees, and not by the judge or judicial candidate personally.” Florida Advisory Opinion 2010-28. See also Florida Advisory Opinion 2008-11 (a campaign web-site maintained personally by a judge may not refer to and facilitate the giving of financial and other support to the judge’s re-election campaign, but the judge’s campaign committee may create and maintain a campaign web-site that does so). A judicial campaign site that solicits funds must make it clear that the candidate does not maintain it personally. Florida Advisory Opinion 2012-15. The word “contribute” may be placed under “volunteer, endorse, education, experience, family, and photos” if the site is clearly managed by the committee and does not give the appearance that the candidate is managing the site or its content. Florida Advisory Opinion 2010-21.
The North Dakota committee advised that a judicial candidate “may establish electronic social media pages along with his/her campaign committee and participate in those aspects of maintaining the social media pages that do not involve financial solicitation on behalf of the candidate.” North Dakota Advisory Opinion 2016-2. The committee stated that social media pages established by the candidate or the candidate’s committee may link to a web-page that provides a place that allows for visitors to contribute to the candidate’s campaign. See also New York Advisory Opinion 2007-135 (although a judge may not solicit campaign contributions on her own web-site, the judge’s campaign committee may do so on a web-site it sponsors if all donations are directed to the committee and not to the judge herself).
The New Mexico Supreme Court recently recommended that a judicial campaign social media site be established and maintained by the campaign committee, not a judicial candidate personally. State v. Thomas, 2016 N.M. LEXIS 149 (New Mexico 2016). The New Mexico judicial ethics committee advised that a judicial campaign committee may use a social media site to raise funds but that, because of the personal solicitation clause, a judicial candidate who maintains a social media site may not engage in fund-raising on his site and any financial contributions must be donated directly to his campaign committee. New Mexico Advisory Opinion Concerning Social Media (2016). (To comply with requirements specific to New Mexico, the opinion added, a judicial candidate must ensure that his committee tries to avoid soliciting contributions from litigants in pending cases, fund-raising results cannot be shared with the candidate, and the candidate must not access fund-raising information on the site.)
The New Mexico committee also advised that a “candidate should be cautious when inviting people to ‘like’ or ‘share’ a campaign page or post and take care to avoid any suggestion that in context might be perceived as a direct, personal solicitation of contributions . . . .” The committee added that a “candidate may include a link from a campaign social media page to a web page maintained by the campaign committee, but any solicitation for contributions should be incidental to the structure of the page.”
Similarly, the Louisiana committee stated that a judicial candidate may link her personal web-site or social media page to her campaign committee’s social media page even if the campaign page is used in part to solicit funds, but not if it is used solely for fund solicitation. Louisiana Advisory Opinion 271 (2016). However, the committee explained, the link must be to a home page, not directly to a contribution page, although a link to a page that in turn links to a separate contribution page is permitted. In addition, the committee stated, “when providing the link, the judicial candidate should make no mention of campaign contributions, but state something very general, such as: ‘To find out more about my campaign, visit my campaign committee’s website at the following link.’”
The ABA advisory committee stated that “Websites and [electronic social media] promoting the candidacy of a judge or judicial candidate may be established and maintained by campaign committees to obtain public statements of support for the judge’s campaign so long as these sites are not started or maintained by the judge or judicial candidate personally.” ABA Formal Opinion 462 (2013). However, the 2007 ABA Model Code of Judicial Conduct does not prohibit judicial candidates from personally soliciting public statements of support (the 1990 model code did), so the basis for that advice is unclear unless the reference should have been to personal solicitations of contributions.
The North Dakota code prohibits a candidate from personally soliciting public statements of support and financial contributions except by “in-person oral solicitations to groups of 25 or more people” or by signing “printed or electronic materials” distributed by the campaign committee. Thus, the advisory committee stated that a candidate may ask a visitor to a campaign social media page to “like” or “share” the page. North Dakota Advisory Opinion 2016-2. That a person may respond to a candidate’s public post or group solicitation by visiting a web-page where funds are solicited does not raise the concerns addressed by the rule, the committee concluded. The committee did caution that, “on social media, just as in person, a candidate should avoid the sort of direct personal solicitation that could lead to allegations of bias, such as personal solicitations directed at individuals by private message or email.”
Ex parte communications, comments on pending cases
The West Virginia advisory committee stated that a judge should not post on her campaign web-site videos in which she answers questions about family law because she would be engaging in the impermissible practice of law and “potentially” in ex parte communications. West Virginia Advisory Opinion 2016-1. The committee stated that a judge or judicial candidate could post videos about procedures and what statutes say on child support calculations, for example, but “should be very careful to ensure that the explanations do not cross the line into legal advice or discussions concerning pending or impending matters.” The committee also warned that such videos are likely to generate follow-up questions that a judge cannot answer.
The New Mexico Supreme Court stated that a judge who is a candidate should post no personal messages on a campaign social media page “other than a statement regarding qualifications,” should not allow public comments, and should not engage in any dialogue, “especially regarding any pending matters that could either be interpreted as ex parte communications or give the appearance of impropriety.” State v. Thomas, 2016 N.M. LEXIS 149 (New Mexico 2016). The Court did not address arguments that the trial judge’s social media posts about the case required reversal of a defendant’s convictions because it had reversed the conviction on the grounds that a prosecution witness testified via Skype, denying the defendant his right to confront adverse witnesses. However, the Court took the opportunity to discuss its concerns about judges’ use of social media, cautioning judges to avoid both impropriety and the appearance of impropriety. During the trial, the judge had posted on his campaign Facebook page, “I am on the third day of presiding over my ‘first’ first-degree murder trial as a judge.” After trial, but before sentencing, the judge had stated, “In the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch. Justice was served. Thank you for your prayers.”
Noting the interactive nature of social media sites, the New Mexico advisory committee identified a “potential for non-parties to post comments on pending cases” on a candidate’s social media page that “may lead to the appearance that the judge is participating in ex parte communications or statements concerning pending or impending cases . . . .” New Mexico Advisory Opinion Concerning Social Media (2016). The committee cautioned a judge to guard against such an appearance, and, if an ex parte communication does occur, to take the remedial action required by the code, that is, prompt notification of the parties and an opportunity to respond.
The committee noted that a judicial campaign committee may act as a “buffer” if the committee maintains the campaign social media site, rather than the judge. The committee emphasized that a campaign committee “must vigilantly scrutinize the site to avoid any appearance that the judge is receiving ex parte communications and/or participating in improper communications.”
The New Mexico advisory committee also considered whether a campaign committee must fully insulate the judge from any improper communications, noting the committee could remove a communication without comment if the judge does not know about it. The committee suggested that some ex parte communications would require a response that the judge would have to approve, which would necessitate remedial action in the case. It seems, however, that a campaign committee should be able to effectively “screen” most if not all inappropriate on-line comments, eliminating the need for disclosure to the judge and, therefore, to the parties in a case, just as court staff may “screen” ex parte attempts to communicate with a judge in more traditional contexts. See, e.g., New York Advisory Opinion 2015-178 (a housing court judge who repeatedly receives attempted ex parte communications from elected officials on behalf of their tenant-constituents should, if possible, have staff members return such communications to the sender without exposing the judge to the substance; if the judge does not review the communication, disclosure is not required, and the judge has no further obligation).