More social media fails

Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 18 months without pay for soliciting funds for the Red Cross on his Facebook page, in addition to other misconduct.  In the Matter of Johns (South Carolina Supreme Court October 13, 2021).

In September 2018, the judge posted on his Facebook page:  “For my birthday this year, I’m asking for donations to American Red Cross.  I’ve chosen this nonprofit because of food, water, and much more provided for those affected by Hurricane Florence in NC & SC.”  In the introduction to his Facebook page, the judge identified himself as a probate judge and stated that he managed the Oconee County Probate Court.

In 2016, the Court had suspended the judge for 6 months based on his social media posts commenting on a pending matter, endorsing a presidential candidate, and fundraising for a local church.  In re Johns, 793 S.E.2d 296 (2016).  The Court noted that, at the time of the previous sanction , the judge had removed any reference to himself as a judge from his Facebook page, stated that he was “deeply embarrassed,” and assured the Court that, in the future, on Facebook or any other social media, he would not refer “to anything involving his court,” make political posts, or post fundraising information.  In the current case, the Court stated:  “Despite these assurances, Respondent restored the reference in his Facebook profile identifying himself as a Probate Judge with the Oconee County Probate Court and again used social media for fundraising purposes.  In light of Respondent’s prior misconduct, we find a substantial suspension from judicial duties is appropriate.”

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Based on the judge’s resignation and agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings against a former justice of the peace; in a notice of formal proceedings, the Commission had alleged that the judge, in addition to other misconduct, made Facebook posts or allowed posts to appear on her Facebook page that (a) promoted, advertised, and/or expressed her support for consumer products, businesses, and other commercial endeavors; (b) indicated her support for and association with law enforcement, the Blue Lives Matter movement, and the U.S. Border Patrol; (c) expressed her contempt or disdain for criminal defendants; (d) promoted fundraising efforts by civic, charitable, and educational organizations and made directed solicitations for personal and local causes; and (e) promoted the campaigns of several candidates for public office.  Fernandez, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct October 22, 2021).

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The California Commission on Judicial Performance publicly admonished a judge for (1) participating in a Facebook group called “Recall George Gascón,” referring to the county district attorney, and (2) posting tweets, re-tweeting content, and liking tweets by others that expressed partisan views on controversial issues, suggested bias against particular classes of people, and were “undignified and indecorous.”  In the Matter Concerning O’Gara, Decision and order imposing public admonishment (California Commission on Judicial Performance September 14, 2021).

3 days after George Gascón was sworn in as the new District Attorney of Los Angeles County, the judge used his personal Facebook account to join a recently created Facebook group called “Recall George Gascón.”  Subsequently, he posted comments that engaged with group members in response to other members’ posts and “liked” 2 comments by other group members. 

Finding that the judge’s Facebook activity gave the appearance of bias against the District Attorney, the Commission concluded:  “The judge was an active participant in a group with more than 16,000 members, formed to oppose an elected official, giving the appearance that he endorsed the group’s stated goals and activity.  Judge O’Gara posted remarks expressing a partisan viewpoint, and ‘liked’ other users’ comments expressing similarly partisan viewpoints.”  The Commission also found that because the judge heard cases prosecuted by the district attorney’s office while he participated in the group, the judge’s “Facebook activity constituted making public comments about pending or impending proceedings in a court.”

The judge maintained a public Twitter account, with the username @mjogara and the display name “Michael J. O’Gara.”  The Commission’s decision includes screenshots of the judge’s tweets, re-tweets, and likes between 2014 and 2021.  Some of the judge’s tweets or likes were in response to tweets by comedian John Cleese, comedian Jim Gaffigan, actor George Takei, and actor James Woods.

The Commission found that the judge’s Twitter activity gave the appearance of bias and that he “posted undignified, indecorous remarks in response to public figures, and appeared to espouse partisan and controversial viewpoints.”  The Commission also found that the judge liked tweets by other users that “appeared to reflect strong political points of view and opinions on controversial issues” such as immigration, the death penalty, and police reform; suggested bias against people of Chinese descent, victims of sexual assault, Muslims, and immigrants; and “were seemingly critical of those exercising their First Amendment right to protest, such as supporters of the Black Lives Matter movement” and participants in the Women’s March.

In his response to the Commission, the judge expressed contrition and acknowledged that his actions on social media were “inappropriate.” The judge has removed himself from the Facebook group and deleted the Twitter app from his phone and deactivated his account.

Rejecting the judge’s defense that he did not intend his social media activity to act as an endorsement of any specific partisan positions, the Commission stated that, “‘Likes’ are, on their face, indicia that a person likes content.”  The Commission noted that, “Facebook is a forum with over one billion active monthly users” and that “Twitter is a forum with over three hundred million active monthly users, each of whom may, if they wish, screenshot or share content generated by another user.”  By commenting on a Facebook post or tweeting or re-tweeting content, the Commission stated, the judge “effectively distributed material to an unlimited number of persons, over whose actions he had no control.”  The Commission noted that the harm done by the judge’s social media activity was compounded because the judge’s followers “included the official account for the City of Glendale, at least one Los Angeles deputy district attorney, and multiple private attorneys.”

The Commission quoted the California Judicial Conduct Handbook:

Public involvement on either side in ongoing debates about controversial social and political issues is improper.  Such issues (e.g., abortion and same-sex marriage) are frequently the subject of public debate and litigation.  A judge who is politically active may be perceived to have prejudged issues that may come before the courts.  Public involvement politicizes the judicial institution, demeans the judiciary, and impairs judicial independence and impartiality.

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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 ReporterPart 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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