Facebook fails

A judge asked the Massachusetts Committee on Judicial Ethics whether they were required to report that another judge had political posts, memes, links, and exchanges on a Facebook profile.  Massachusetts Advisory Opinion 2021-1.  The inquiring judge had, while on Facebook near the 2020 presidential election, viewed the apparently publicly accessible personal Facebook profile of a person they recognized from the name and photograph as a sitting Massachusetts judge, although the profile did not refer to the other judge’s judicial status.  The posts included:

  • “Expressions of support for one of the major party candidates for president;
  • References and links to negative coverage of the opposing major party’s candidate;
  • Statements that the opposing party’s candidate and his family are ‘corrupt;’
  • Posts ridiculing and demeaning two female politicians of the opposing party;
  • Derogatory comments about immigrant parents who were separated from their children at the southern border; [and]
  • Complaints about media bias in election reporting.”

In a post 10 days after the election, the other judge stated that the election was a “mess” with a link to commentary by a media personality claiming that it had been “fundamentally unfair, compromised by alleged voting irregularities, and manipulated for the political benefit of the opposing party.”

Rule 2.15(A) of the Massachusetts code of judicial conduct provides:

A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, integrity, trustworthiness, or fitness as a judge in other respects shall inform the Chief Justice of the Supreme Judicial Court, the Chief Justice of the court on which the judge sits, and if the judge is a Trial Court judge, the Chief Justice of the Trial Court.

The Massachusetts provision is identical to the model code provision except that it identifies chief judicial officers as the appropriate authority to which misconduct should be reported where the model code designates “the authority having responsibility for initiation of disciplinary process in connection with the violation to be reported.”

The committee concluded that the inquiring judge was required to report the posting judge under Rule 2.15(A).  First, the committee stated, the inquiring judge knew that the other judge had “posted the materials in question to the Facebook profile or, if the materials were posted by someone other than the judge, that the judge permitted the materials to remain on the judge’s Facebook profile.”  Second, the committee concluded that “the content on the judge’s Facebook profile violates several provisions of the Code that require judges to avoid conduct in their personal and professional lives that creates an appearance of bias.”  Third, the opinion found, “the violations raise a substantial question regarding the judge’s fitness as a judge because, by publicly posting and/or tolerating the presence of the materials in question, the judge failed to act in a manner that upholds the public’s confidence in the impartiality of the judiciary and maintains the dignity of judicial office.”  The opinion explained:

The Facebook posts at issue here expressed favor for a specific political candidate and for specific political viewpoints; denigrated and demeaned opposing political figures and viewpoints; contained content that gave the appearance of bias based on gender, ethnicity, and immigration status; and promoted a claim that the election had been manipulated for the political benefit of the opposing party.  The judge’s conduct in posting such materials, regardless of the particular political viewpoints expressed, calls into question the judge’s impartiality and “undermines public confidence in the judiciary,” . . . and therefore raises a substantial question regarding the judge’s fitness as a judge.

2 judges recently deactivated their Facebook accounts in response to complaints about inappropriate activity.

On learning that the Judicial Standards Board was investigating his Facebook posts and reactions endorsing and opposing candidates for U.S. President and U.S. Senate, a Minnesota judge immediately deactivated his Facebook account and admitted that his Facebook activity had been “imprudent, indecorous and contrary to the spirit of the Canons.”  In the Matter of Quinn, Public reprimand (Minnesota Board on Judicial Standards March 9, 2021).

The judge had been tagged on Facebook in numerous photographs showing him wearing a MAGA hat and piloting a boat displaying at least 2 Trump flags in the Trump Boat Parade on the Mississippi River in September 2020.  He also included a screenshot of photographs of himself in the parade published in the St. Cloud Times, with the response, “Here we are!”

The judge also “liked” Donald J. Trump’s Facebook page and on that page:

  • Commented, “Trump will steam roll this election.  Those who’s [sic] eyes are closed move their mouths more to make up for their insecurities.  Stay strong; pray against evil,” on a video captioned, “We’re showing that we can create jobs, safeguard the environment, and keep energy prices low for America.”
  • “Liked” posts that stated:
    • “I will NEVER support Biden ever . . . . he’s been in politics for 49 years no wonder why the U.S. has so many problems.”
    • “I was thrilled to be back in WISCONSIN tonight with thousands of loyal, hardworking American Patriots!  47 days from now, we are going to win Wisconsin, and we are going to win 4 more years in the White House!  #MAGA.”
    • “One of the worst polls in 2016 was the @FoxNewsPoll.  They were so ridiculously wrong.  Fox said they were going to change pollsters, but they didn’t.  They totally over sample Democrats to a point that a child could see what is going on.  Rasmussen, which was accurate, at 52%.”
    • “Joe Biden is a disgrace.  A 47 year career waste.  Wake up people do we need someone like this as president.”
  • “Liked” a post regarding the Duluth News Tribune’s endorsement of Jason Lewis for U.S. Senate and commented on another post regarding the endorsement, “Whoa!  That is a weighty endorsement for Lewis and quite an indictment of [Senator Tina] Smith since she’s had years to work on her platform and record.  Clearly a big difference here.”
  • Commented, “Dips**t Biden.  Oops,” in response to an image that stated, “I’ve decided to cut back on political posts for a bit . . . instead I will share some word scrambles.  MURPT0022.” 

The Board stated that it does not discourage judges from using social media because it recognizes that judges maintain family and social connections through social media and often feel isolated due to their work, especially during the COVID-19 pandemic.  However, it emphasized that judges can and must participate in social media without violating the code of judicial conduct.

The Board found that the judge’s Facebook activity endorsed and opposed candidates for public office and “abuse[d] the prestige of judicial office to advance the personal or economic interests of the judge or others.”  The Board stated that the judge’s posts regarding his participation in the Trump Boat Parade “were the most flagrant example of his endorsement of a candidate for public office.”

The Board noted that, even though the judge “maintained a private Facebook page, not all of his activity remained private;” his “like” of the Trump page was public and his approximately 70 Facebook friends, some of whom are lawyers and judges, were able to view and publicize his Facebook activity.  The Board stated that “maintaining a private Facebook page, especially when a judge has a large group of Facebook friends, does not provide a shield for a judge who violates the Code.”

* * *
The West Virginia Judicial Investigation Commission publicly admonished a judge for comments she made on her Facebook page about a pharmacist arrested for destroying COVID-19 vaccine dosages and about the siege at the U.S. Capitol.  In the Matter of Jackson, Public admonishment (West Virginia Judicial Investigation Commission February 24, 2021).

On January 5, 2021, the judge posted a story on Facebook about the arrest of a Wisconsin pharmacist for allegedly destroying multiple doses of the COVID-19 vaccine by leaving them out a room temperature overnight, and she made negative comments about his alleged actions.  On the same day, Disciplinary Counsel contacted the judge and informed her that the comments violated the prohibition on public comments about pending cases, and the judge agreed to take the comments down.  Reminding the judge that she had previously been asked to take other Facebook posts down, Disciplinary Counsel explained that an ethics complaint would be opened against her if she did it again.

Despite that warning, from January 6-11, the judge repeatedly posted stories and/or inappropriate comments about the siege at the U.S. Capitol in Washington D.C. on her Facebook page.  For example, some of the comments were about former West Virginia House of Delegates member Derrick Evans, who allegedly participated in the siege and was the subject of federal criminal charges.

Facebook friend:          As the video ends, Evans shouts “Our house!  And then, “I don’t know where we’re going, but I’m following the crowd.”  What is he?  12?
Respondent:                  [Name] that is very disrespectful . . . to 12-year olds!
* * *
Facebook friend:          It sad, but I’m glad he was.  No one is above the law!
Respondent:                  [Name] it’s not sad!
Facebook friend:          It’s sad that delegates or any elected official would do this is what I mean.  I’m not sad he was arrested.  I’m sad and mad about what they all did!
Respondent:                  YES

Each of the judge’s posts elicited numerous responses.

In her response to Disciplinary Counsel’s complaint, the judge said:

Please be advised that on January 11, 2021, I deactivated my Facebook account. I am embarrassed by my actions and sincerely apologize. I must point out in my defense that my Facebook page was not accessible to the public but was viewable only by my friends and family. I was expressing my feeling to friends, not the general public. My second point is that nothing on my page identified me as a judge, although of course, my friends know that. You have been more than patient with me, and I regret any inconvenience this has caused you. I have no plans to reactivate my Facebook account until I retire. . . .

The Commission stated that “the concept of a ‘public comment’ applies to Facebook whether a judicial officer opens his or her personal page only to family and friends or to the public at large. For purposes of the term ‘public,’ the [Commission] believes the portion of the definition contained in Black’s Law Dictionary which states that the ‘word does not mean all the people nor most of the people nor very many of the people of a place but so many of them as contradistinguishes them from a few’ is appropriate . . . .” The Commission continued:

At all times when engaged on social media judges should remember the immortal words of industrialist Henry Ford that “[u]nder pressure, the mouth speaks when the brain is disengaged and sometimes unwittingly, the gearshift is in reverse when it should be in neutral.” Judges can never go wrong when they limit their Facebook posts to comments about family, pets, sports or the weather. In all other respects, a judge must maintain his/her impartiality particularly when commenting about issues that may come before the court.

Law enforcement alignment
Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for posting on his Facebook page 2 photographs of himself wearing a sheriff’s uniform and personal comments expressing his appreciation for law enforcement officers and describing his appearance at a “Back the Blue” event.  In the Matter of Peck, Determination (New York State Commission on Judicial Conduct March 19, 2021).

The judge’s Facebook page is viewable by the public.  The judge retired from the Ontario County Sheriff’s Office in December 2017.

On July 19, 2020, the judge attended a “Back the Blue” event in which a procession of motorists drove their vehicles to show support for law enforcement.  For approximately 30 minutes, the judge displayed a sign approximately 2 feet by 3 feet on which he had painted “Thank You” in blue lettering.

On July 21, the judge’s Facebook page displayed a “cover photo” depicting himself in his Ontario County Sheriff’s uniform while standing with 3 other individuals, one of whom was his daughter who was wearing a similar uniform.  The photograph was taken at his daughter’s police academy graduation in August 2018.  By July 21, the judge’s “cover photo” had approximately 277 Facebook “likes,” 2 “shares,” and 37 comments from other Facebook users.  

The judge also posted:

Today, my daughter … and I stood at the side of the road and watched in appreciation as hundreds of motorcycles and other vehicles passed by …  It was the Back the Blue ride in support of law enforcement …

I always tell her that she and her brothers and sisters in blue are still appreciated in OUR community.  Today’s event, and the overwhelming number of participants is a true example of that appreciation.  We both had tears streaming down our cheeks as folks waved and honked, acknowledging our sign thanking them for their support.

It is a tough time for law enforcement.  To those of my friends who served or continue to, always remember that you have chosen the noblest of professions and you ARE making a difference …

With this post was a photograph of the judge and his daughter wearing Ontario County Sheriff’s Office uniforms, taken at his daughter’s police academy graduation in August 2018.  By July 21, this post had approximately 940 Facebook “likes,” 355 “shares,” and 219 comments from other Facebook users.  Among the comments was one that identified him as “Judge!”

In April 2019, the Commission had issued the judge a letter of dismissal and caution for posting a comment criticizing a candidate in an election for county sheriff.

The Commission found that the judge’s “public Facebook post in which he aligned himself with and expressed his strong support for law enforcement personnel, casts doubt on respondent’s ability to act impartially when he presided over matters which involved law enforcement personnel.”

* * *
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 website.

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