In a letter opinion, the Massachusetts Committee on Judicial Ethics advised that a judge should not participate in the Women’s March on Washington scheduled for January 21, 2017. Massachusetts Letter Opinion 2016-10. The opinion states:
The Women’s March is scheduled to take place the day after the Presidential Inauguration. Though the organizers emphasize that the Women’s March is intended to be inclusive and welcoming to everyone who supports women’s rights, the political overtones are unmistakable. The organizers reference the “rhetoric of the past election cycle” that has “insulted, demonized, and threatened . . . immigrants of all statuses, Muslims and those of diverse religious faiths, people who identify as LGBTQIA, Native people, Black and Brown people, people with disabilities, [and] survivors of sexual assault.” A primary purpose of the Women’s March is to “send a bold message to [the] new administration on their first day in office.”
We understand that you wish to participate in the Women’s March to stand up against misogyny, racism, and other biases and bigotries that threaten the rule of law. The public and the media are, however, likely to focus on the timing of the event and the organizers’ announced desire to “send a message” to the new President on his first day in office. We believe that a reasonable person would perceive the Women’s March as a political protest, and the Code therefore prohibits your participation.
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The Massachusetts Committee has also issued a letter opinion on judges using Twitter, which is the first comprehensive advisory opinion to focus on that social media platform. Massachusetts Advisory Opinion 2016-9. The opinion was in response to an inquiry from a judge who has a Twitter account with a handle that includes “judge” followed by his surname and who includes a photo of himself wearing a judicial robe in numerous tweets. His posts, the accounts he follows, and the identities of his followers can be viewed by the public at large.
The committee emphasized: “As is also true with other forms of social media, each judge who uses Twitter must err on the side of caution and be aware that posts a judge-user considers neutral may nonetheless lead a reasonable person to question the judge’s impartiality.”
The Committee is of the opinion that, when a judge is posting publicly as a judge, the judge must be exceptionally cautious. The reason is that the public may perceive the judge’s communications to have the imprimatur of the courts. In general, a public, unrestricted Twitter account of an identified judge may be used only for informational and educational purposes. If the judge so desires, the account also may reflect who the judge is as a person, as well as a judge, so long that the judge is careful not to implicitly or explicitly convey the judge’s opinions on pending or impending cases, political matters, or controversial or contested issues that may come before the courts. In addition, as to each piece of information revealed by the judge’s Twitter account (whether it is a tweet, a retweet, a “like,” the identity of an account that the judge follows, or the identity of an account that follows the judge) the judge must consider whether it would cause a reasonable person to question the judge’s impartiality.
Noting that many of the judge’s Twitter posts fell into certain categories, the committee gave advice for each category.
- The committee stated that tweets that “share upcoming and past bar events and other news of general interest to members of the Bar (e.g. the establishment of new specialty courts, the election of bar leaders, the nomination of judges) . . . are consistent with the Code.”
- With respect to the judge’s tweets advising “trial lawyers on trial practice (e.g., preparing clients to testify, delivering closing arguments, conducting cross-examination),” the opinion stated that “purely educational posts are consistent with the Code, but posts that a reasonable person may regard as demonstrating personal bias or improper comment on a pending case are not.” The committee advised that the judge “must make certain that the posts do not reflect [his] reaction, whether complimentary or critical, to the in-court behavior of any readily identifiable person,” noting that avoiding “a close temporal proximity” between the behavior and the related tweet “will help ensure that such posts are perceived to be purely educational.” The committee also noted that the judge’s posts must “offer only practice tips and not legal advice.”
- The judge posts tweets on selected cases decided by other courts, including the Massachusetts Supreme Judicial Court and the U.S. Supreme Court, often on decisions concerning racial discrimination and/or police misconduct, or both, including issues the judge confronts on a regular basis, such as assessing the credibility of police officers. The committee stated that “[r]eporting court decisions, even on selective topics, is consistent with the Code, but only if the reports do not compromise or appear to compromise [the judge’s] impartiality.” To avoid conduct that a reasonable person may regard as demonstrating partiality, the committee advised, the judge’s “Tweets or retweets must be from official or neutral sources such as court websites or libraries. [The judge] must not retweet or link to case reports from persons or organizations with legal opinions that are clearly on one side of contested and highly-charged legal issues. Reports even by ‘mainstream media’ should be avoided, as such reports may contain commentary or reaction favoring one point of view.”
- The committee cautioned the judge about “posts intended to reveal the existence of racism and implicit bias in the courts.” The opinion noted that “Massachusetts court leaders comment on and are taking steps to address these important concerns,” but cautioned that such “posts must serve a legitimate educational or informational purpose” and the judge “must avoid posts that individually or as a pattern would lead a reasonable person to conclude [he has] a predisposition or bias that calls [his] impartiality into question.”
- The judge has posted, for example, “excerpts from an examination in which a defendant used profanity when addressing [a] judge and another reporting that a defendant threw bottles of urine and feces at a judge following sentencing.” The committee advised the judge to avoid posts of this nature because they detract from the dignity of the judiciary and the court system as “a reasonable person may perceive these posts to be needlessly offensive, or as making light of behavior by litigants who may have mental health problems.”
- The judge has posted “photographs that appear to show litigants, attorneys, court personnel, and judges” in his courtroom or lobby and photos that include children. The opinion stated that privacy and safety concerns require the judge to obtain consent from any person (or from a parent, in the case of a minor) whose image he posts, unless he is “retweeting a photo that was previously disseminated to the public by the press, an organization or association of judges or lawyers, or other similar source.”
- The opinion stated that “posts that generally reflect pride in [the judge’s] personal characteristics, background, and achievements” do not indicate personal bias or prejudice and are consistent with the code, noting “[i]t is long-settled that a judge’s gender, race, or other personal characteristics are not grounds for a reasonable person to question the judge’s ability to interpret and apply the law fairly and impartially.”
The committee emphasized that “each judge who uses Twitter or other forms of social media must, of course, consider whether the application of this advice in the judge’s individual circumstances will be consistent with the Code,” considering, for example, “whether a particular post or communication would be improper in light of cases pending before that judge and that judge’s typical caseload.” With respect to retweets, the committee stated a judge should consider both the content and the source of the posts. The committee also stated that, because the list of accounts the judge follows is public, the judge “must be cautious when selecting accounts to follow and avoid, for example, following the accounts of political candidates or parties.”