In a formal opinion, the California Judges Association Judicial Ethics Committee advised that, with qualifications, a judge may (1) write a review on a crowd-sourced site, such as Yelp and (2) use the “like” function on a social networking site. California Judges Association Formal Opinion 78 (2020).
For purposes of its analysis, the California committee defined “footprint” in the context of social media: “what others can see on the site as a result of the contribution and who can see it.” The committee explained that, even when “the content could be perceived as advancing the interest of another, if the footprint does not identify the user with any particularity” as a judge, the prestige of office “would not be implicated.”
As an example, the committee applied its analysis to Open Table, a site used to make reservations at restaurants that includes user reviews of the restaurants. It explained:
By default, reviewers are identified by their first name, the first initial of their last name and their city. A posting by “William S., a diner in SF,” gives you so little identifying information that there is no way to connect that review with any specific individual. Assuming William S. is a judge, nothing about being identified in that manner could be said to lend the prestige of the judicial office to that restaurant.
Would a review by William S. advance the interest of another? Possibly yes. But Canon 2B(2) does not read: A judge shall not in any manner, including any oral or written communication, advance the pecuniary or personal interests of the judge or others. Rather it reads: “A judge shall not lend the prestige of judicial office or use the judicial title in any manner, including any oral or written communication, to advance the pecuniary or personal interests of the judge or others.”
(The analogous provision in the current version of the American Bar Association Model Code of Judicial Conduct is Rule 1.3 and states: “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”)
In addition, the committee noted that a review on a third-party site, such as Yelp, is written not necessarily to benefit the business but to provide information to other users. Therefore, the opinion stated, a review on Yelp is more like a book review for a journal, which judges are allowed to write, than a laudatory letter to a business that could be used on its website, which judges may not write.
The committee noted that the footprint could be different on a site, such as Trip Advisor, that allows the user to select a username if the judge’s choice includes the judicial title or is readily associated with the judge.
The committee concluded that, before posting a review on a crowd-sourced site, a judge should consider:
1) How likely is it that a reader be able to identify the post as being written by a judge? 2) Where will the post appear? 3) Is there a reasonable possibility the business being reviewed could identify who the post is from and that person’s position? 4) How detailed is the review? and, 5) Who are you writing the review for?
Whether a judge can hit the “like” or thumbs-up icon on Facebook or other social media sites depends on where the icon is, the committee advised.
If a judge “likes” an establishment on its Facebook page, the committee explained, “the only thing that will show up on the establishment’s page is an addition to the number of ‘Likes’ the establishment has received,” not the judge’s username. The “like” will not appear on the judge’s Facebook page, and the judge’s friends will not receive any notice that the judge has clicked “like.” The committee noted that the judge’s “likes” will be listed on the judge’s profile so whether others can see them depends on what privacy settings the judge has implemented, with the most restrictive being “only me,” the most open being “public,” and several settings in between. The committee concluded:
- If only the judge can see the judge’s “likes,” the judge would not be lending the prestige of the judicial office to further the establishment.
- If anyone can see the judge’s “likes,” Canon 2B(2) “could very well be implicated.”
- If only “friends” can see the “likes,” whether the rule is implicated depends on how many friends the judge has and what their relationships is.
- If only a judge’s close friends and relatives can see the judge’s “likes,” Canon 2B(2) is probably not violated.
If a judge “likes” a comment on someone else’s page or a comment made on the judge’s homepage, the committee advised that Canon 2B(2) could be violated if the judge uses their “true name” or a pseudonym that others know belongs to the judge because whether others can see the “like” depends on the privacy settings of the original poster, not the judge. However, the committee stated, “if the only people who are aware of the pseudonym are family and close friends there may not be any problem. Canon 2B(2) doesn’t prevent a judge from telling a friend that they like a particular restaurant, book or movie.”
However, the committee also cautioned:
The problem with online interactions of that sort is that that they are generally much broader than face to face encounters. [A judge] may be commenting for the benefit of one individual, but [the] comment is going to be potentially shared with everyone that individual is connected with, and conceivably, everyone those people are connected with. Moreover, anyone who sees the “Like” can access [the judge’s] page by clicking on [the judge’s] username. If [the judge’s] privacy settings don’t limit the information that others can see, such as [the judge’s] own posts and profile information, the probability that others can identify [the judge] as a judge increase.
The committee also noted that “likes” are more widely disseminated on Twitter and Instagram and, therefore, there is a greater likelihood of the judge’s identity being ascertained on those platforms.
The committee emphasized that the code prohibits certain types of conduct online regardless whether the user can be identified as a judge: “A judge may not engage in such conduct, period.” The committee stated that “hitting the thumbs up symbol or the heart symbol” because something is interesting can reasonably be “perceived as an explicit endorsement of the content,” and, therefore, if subject to judicial discipline if direct advocacy of the content by a judge would be inappropriate.
“Liking” an offensive post could cast reasonable doubt on the judge’s capacity to act impartially and could demean the judicial office. There simply is no place for judges engaging in that type of conduct on an inherently public platform. Indeed, judges have been disciplined for posting and sharing links to posts that were perceived as racist and offensive.
Further, the committee stated that the prohibitions on judges engaging in certain political activity apply even when the judge is not using the judicial title or might not be otherwise be identifiable as a judge. “Although the prohibitions do not apply to private comment and only to public endorsement or opposition, “social network platforms are, by their very nature, public,” the committee cautioned.
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A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct Reporter. Part 1 was a general introduction to the topic and a discussion of issues related to judicial duties: “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases. Part 2 covered off-bench conduct: conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct. Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics web-site.