Several judicial discipline cases warn judges to resist the temptation to create social media posts that may interest or entertain the readers but do not reflect well on the dignity of the judiciary.
For example, one judge began a post with: “In the category of, You can’t make this stuff up!” The post purported to be a verbatim account of his conversation with the tenant in an eviction proceeding involving drugs found in an apartment. (Instead of names, the judge referred to the individuals by their role in the case – “landlord,” “tenant,” etc.)
A maintenance man testified to finding powder that tested positive for cocaine under the bathroom rug in the tenant’s apartment. The tenant testified that the heroin was not his — cocaine, not heroin, was his drug of choice and he keeps all of his drugs in a safe. When asked how the heroin got into his apartment, the tenant said, “I don’t know. Maybe one of the hookers I had in my apartment left it.”
The post ended: “Needless to say, the Court ruled in favor of the landlord.”
When one of his Facebook friends asked if this was a true story, the judge posted: “Yes. It goes without staying but the tenant wasn’t the brightest bulb in the chandelier.”
Publicly reprimanding the judge, the Arizona Commission on Judicial Conduct found that the post and reply “mocked the intelligence level of the tenant,” creating an appearance of impropriety and diminishing public confidence in the judiciary. Urie, Order (Arizona Commission on Judicial Conduct June 12, 2018). See also Massachusetts Advisory Opinion 2016-9 (judge should not tweet about a defendants using profanity or throwing urine and feces at a judge because “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”).
In publicly reprimanding a judge for comments posted on his Facebook page, the Minnesota Board on Judicial Standards found that the judge had “put his personal interest in creating interesting posts ahead of his duty to maintain the appearance of impartiality.” In the Matter of Bearse, Public reprimand (Minnesota Board on Judicial Standards November 20, 2015).
n one post, the judge had stated: “[L]isten to this and conclude that lawyers have more fun than people.” He then described a medical school graduate’s petition to expunge her disorderly conduct conviction based on her assault on her boyfriend after she found him having sex with her best friend. He explained that he had granted the petition even though it was filed about 2 years early under the statute and he would probably be reversed if the prosecution appealed.” Comments on the post included: “I am always heartened by the application of common sense. An excellent decision, in my opinion,” and “You’re back in the saddle again Judge.”
Those favorable comments, the Board stated, created the appearance that the judge’s decisions “could be influenced by the desire to make a good impression of himself on his Facebook page.”
The West Virginia Judicial Investigation Commission publicly admonished a judge for posting on his Facebook page a photo that showed him arraigning a woman on felony charges of forging her dying mother’s will to inherit more than $1,000,000. Public Admonishment of Hall (West Virginia Judicial Investigation Commission October 31, 2017). The photo came from a story run by a television station about the case. The caption underneath the photo read, “Police: Woman Exploits over One Million Dollars from Dying Mom,” and the news logo appeared to the right of the heading.
The post elicited comments from members of the public, including “[d]isgusting,” “[h]ang ‘em high Brent,” “[h]opefully you set a high bond,” and “I didn’t think anything could be lower than rescinding DACA. I was wrong.” Some comments expressed support for the judge’s handling of the arraignment, such as “[g]o Brent” and “[g]et ‘em Brent,” and “[t]hat face! Good one.”
The judge argued that, because the photo did not include “any comment, opinion, or statement,” it was not a comment about a pending case. The Commission strongly disagreed.
There is an old maxim that “a picture is worth a thousand words.” The saying is deigned to convey the concept that a single image often expresses an intricate idea better than any written description. By placing that still photo on his Facebook page, Respondent expressed to his Facebook friends the woman’s perceived guilt in a louder voice and in a more certain tone then if he had actually written the words himself.
The Commission emphasized that the judge’s post was “designed to elicit responses from his friends because that’s what Facebook is meant to be – an alternate public means of communication.” The Commission noted that the largely negative comments were “no surprise” and the judge’s “failure to remove them constituted a tacit endorsement,” concluding he had acted in a way that was “contrary to the neutral and detached demeanor of all judges but . . . undoubtedly popular with his friends.”