Yelp, “likes,” and judicial prestige

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 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 web-site.

Another Facebook fail

Based on an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a  judge for sharing partisan posts on Facebook.  Lammey (Tennessee Board of Judicial Conduct November 15, 2019).  The judge also agreed to complete, either in person or online, a judicial ethics program or other educational program addressing ethical issues and the use of social media; to refrain from making any substantially similar comments or disseminating any substantially similar social media posts; and to keep his social media platforms on the private setting.

The judge shared on his Facebook accounts images that, the Board found, were partisan and clearly violated the code of judicial conduct.  The images were about issues such as the credibility of certain federal agencies, professional athletes kneeling during the national anthem, the effect of undocumented immigrants on the economy, opposition to certain positions in the Democratic party platform, bias in favor of then-presidential candidate Donald Trump and opposition to then-presidential candidate Hillary Clinton, the Black Lives Matter movement, media bias, fatal shootings by police officers, anti-Jihadist sentiment, transgender bathrooms and boys in girl’s locker rooms, and undocumented immigrants voting in Virginia.

The Board found that “after a complete and thorough investigation and under the limited and specific facts of this case, . . . there is no proof that [the judge] displayed any actual bias, prejudice, or impartiality toward any litigant that appeared before [him] . . . .”  However, the judge acknowledged that reasonable minds could easily have perceived “the dissemination of these types of articles and images on [his] social media platform” as prejudice or bias.

Screenshots of the Facebook posts shared by the judge were submitted by the organization Latino Memphis with a complaint in response to a newspaper article titled, “Memphis Judge Posts Facebook link to Holocaust denier’s Essay calling Immigrants ‘Foreign Mud.’”  The article was based on an interview the judge gave to a newspaper reporter about his policy of requiring undocumented immigrants to report to U.S. Immigration and Customs Enforcement as part of probation.  The article references an essay the judge shared on Facebook by David Cole, titled “Stop with the Golems, Already.”  The judge’s post commented, “interesting read . . . some four-letter words though.”  Cole, who is Jewish, argued that Jewish Americans “should not bring in people who want to do them harm,” saying, “In a perfect world, these rabbinical Rain Men would finally get the f*** over the Holocaust and end their war of hostility against the west.”  The Memphis Bar Association also filed a complaint based on the widespread media reports about the judge’s posts and his methods of dealing with immigrants.

The Board stated that any issues about the judge’s treatment of undocumented immigrants would be resolved by the  Court of Criminal Appeals.  The Board’s letter noted that it was “abundantly clear” that the judge had not written the essay; Cole “does not describe all immigrants as ‘mud,’” just those who want to do Jewish people harm; and its investigation revealed that Cole was not a Holocaust denier.  The Board also concluded that there was no proof that the judge made statements that were anti-Semitic, racist, or anti-immigration.

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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 web-site.

More Facebook fails

In May 2019, the New York State Commission on Judicial Conduct filed a complaint alleging that a judge had posted on “his Facebook account a picture of a noose with the annotation, ‘IF WE WANT TO MAKE AMERICA GREAT AGAIN WE WILL HAVE TO MAKE EVIL PEOPLE FEAR PUNISHMENT AGAIN.’”  The post was viewable by the public.  The judge’s Facebook account was under his name, and he had approximately 121 Facebook friends.

The judge and the Commission stipulated that the image and statement “conveyed and/or appeared to convey racial and/or political bias” and, therefore, that the judge had “failed to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  The judge resigned, agreed not to seek or accept judicial office in the future, and waived confidentiality to the limited extent that the stipulation can become public; the Commission concluded the proceeding.  In the Matter of Canning, Decision and Order (New York State Commission on Judicial Conduct September 12, 2019).  The post was attached as an exhibit to the complaint, which is attached to the stipulation.

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The Chief Justice of the Kentucky Supreme Court disqualified a trial judge from a lawsuit brought by the state Attorney General against the state Secretary of Labor because the judge had “liked” a Facebook post supporting the Attorney General’s campaign for governor.  In re Commonwealth of Kentucky, ex rel. Beshear and Jefferson County Teachers Association v. Dickerson (Kentucky Supreme Court September 27, 2019).

The judge was presiding over a suit brought by Andy Beshear the state Attorney General and a county teachers association seeking an injunction against subpoenas the Secretary of the Kentucky Labor Cabinet had issued to several school districts for information regarding teachers who had participated in “sick-outs” during the 2018 and 2019 legislative sessions.

Beshear is also the Democratic nominee for governor, opposing incumbent Governor Matt Bevin.  The judge liked a post in which a state representative said that he was “honored to sign a pledge card to vote for the Beshear/Coleman ticket in November.”  The Labor Secretary filed a motion to disqualify the judge based on that “like.”  The judge denied the motion; the Labor Secretary then invoked a Kentucky procedure that allows the Chief Justice to immediately review and decide whether grounds exist to appoint a different judge for the case.

The Chief Justice agreed with the Labor Secretary’s argument that “Governor Bevin is effectively a party to the lawsuit because ‘the Attorney General brought this lawsuit against Governor Bevin’s administration, and the Attorney General frequently promotes the lawsuit as part of his campaign for governor.’”

Noting several reprimands for similar conduct by the Judicial Conduct Commission, the Chief Justice concluded that the judge’s “liking” of a Facebook post supporting Beshear’s campaign was a per se violation of the code of judicial conduct.  The Chief Justice also stated that the fact that the judge “also ‘liked’ posts supportive of Governor Bevin’s campaign or of other Democratic and Republican candidates does not . . . right the wrong.  In fact, those ‘likes’ constitute additional violations . . . .”  The Chief Justice acknowledged that the Labor Secretary did not allege and there was nothing in the record to indicate that the judge had explicitly endorsed Beshear’s campaign or that he was biased against Governor Bevin or the Labor Secretary.  The Chief Justice also expressed his conviction that the judge “would preside over this case, as he has in so many other cases, in a completely fair, neutral, and unbiased manner.”  But the order emphasized that the standard for disqualification does not require actual proof of bias but simply circumstances that raise reasonable questions about the judge’s impartiality.  Thus, the Chief Justice held:  Given that the judge’s “‘like’ may reasonably be perceived as a public endorsement of a candidate’s campaign, that the candidate is a party in this case, and that this case involves a central issue in that candidate’s campaign, this is one such circumstance.”

The Chief Justice added:

This case should serve as a cautionary tale to all Kentucky judges who use social media.  As the Judicial Ethics Commission wisely admonished in its 2010 opinion, these services are “fraught with peril” for judges and should be used with extreme caution.  While judges are not ethically prohibited from using social media, their use is subject to the Code of Judicial Conduct in the same manner as other extrajudicial activities.  Judges should review their social-media presence to ensure it does not violate the Code of Judicial Conduct and should act prudently when “liking” pages, posts, or tweets or otherwise interacting with other users on social media.

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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 web-site.

More than a Facebook fail

Based on the findings and recommendation of the Judicial Conduct Commission, the Utah Supreme Court suspended a judge for 6 months without pay for (1) losing his temper with the clerk of court and using his authority to seek her removal from the premises; (2) “seemingly shirty and politically charged comments to a defendant in his courtroom;” and (3) a Facebook post that was critical of then-presidential candidate Donald Trump.  In re Kwan (Utah Supreme Court May 22, 2019).

(1) In February 2017, after learning that an administrative staff member had been promoted without his involvement, the judge confronted the Clerk of Court in a manner that multiple witnesses described as “angry,” “screaming,” and “intense.”  A short time later, the judge threatened in a notice for disciplinary action to put the Clerk of Court on unpaid suspension pending termination and directed that she be escorted from the premises in an e-mail that recipients understood to be a judicial order, in part, because it included a signature block.

The Court recognized that even “attempting his or her best efforts,” a judge might “fail to handle an administrative matter with the highest degree of patience and courtesy.”  However, it concluded, the judge had acted “well outside the bounds of any acceptable range of behavior,” noting that following his “outburst” he had inappropriately attempted “to use the judicial office to impose severe consequences” on a court employee.

(2) In January 2017, in an exchange during a hearing with a defendant who had failed to pay his fines, the judge “appeared to demean the defendant and included political commentary regarding President Trump’s immigration and tax policies:”

Judge:              So, what happened with your fine payments?
Defendant:      So, I, just, live paycheck to paycheck . . . .
Judge:              Ok.  So, when you set up the pay plan you were hoping you would have the money and it didn’t pan out that way?
Defendant:      And I did not call, but I plan on when I get my taxes to just pay off all my court fines, because I cannot end up in jail again for not complying.
Judge:  You do realize that we have a new president, and you think we are getting any money back?
Defendant:      I hope.
Judge:              You hope?
Defendant:      I pray and I cross my fingers.
Judge:              Ok.  Prayer might be the answer.  ‘Cause, he just signed an order to start building the wall and he has no money to do that, and so if you think you are going to get taxes back this year, uh — yeah, maybe, maybe not.  But don’t worry[,] there is a tax cut for the wealthy so if you make over $500,000 you’re getting a tax cut.  You’re right[] there[,] right?  Pretty close?  All[]right, so do you have a plan?  Other than just get the tax cut and pay it off?

Noting the judge’s contention that he “intended to be funny, not rude,” the Court stated:  “It is an immutable and universal rule that judges are not as funny as they think they are.  If someone laughs at a judge’s joke, there is a decent chance that the laughter was dictated by the courtroom’s power dynamic and not by a genuine belief that the joke was funny.”  The Court noted that the judge had been publicly reprimanded in 2005 for telling an attorney that he seemed to be raising the “Clinton defense,” a reference to President Clinton.  In re Kwan, Order of Reprimand (Utah Supreme Court November 1, 2005).  Thus, the Court concluded, the judge’s “in-court political comment regarding President Donald Trump” continued a pattern of behavior and demonstrated “an ongoing failure to exercise appropriate judgment and restraint when making statements during judicial proceedings.”

(3) During 2016, the judge repeatedly posted comments and shared articles on his Facebook and LinkedIn accounts regarding then-presidential candidate Donald Trump.  On September 26, the night of the first presidential debate between Trump and Hillary Clinton, the judge wrote:

Contradictory:  person who got rich by not paying people for their work but complains about NATO not paying their fair share.
Food for thought:  If a person tries to show their ties to a community by talking about their investments and properties and not about the people of the community, it speaks to that person’s priorities.
Quick question:  Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of?  What does that say . . . about your business practices?
Wish she said:  “Donald, I’m used to having a man interrupt and dismiss me when I speak because egotistical men hav[e] been trying to do that to me for my entire career.”

The judge conceded that his comment about the IRS audits violated the code of judicial conduct and was not protected constitutional speech because it expressly criticized a specific political candidate.  The Court explained that, although the judge’s “comments addressed a candidate for national political office, and Judge Kwan may not decide national-scale issues as a justice court judge, those issues may still bear, or appear to bear, in some respects on questions that arise in his courtroom.  Or cause those who disagree with Judge Kwan’s politics to believe that they will not receive a fair shake when they appear before him.”  The Court emphasized that its primary concern was not that the judge “voiced his views on a range of political issues via his criticisms of Donald Trump” but that he “implicitly used the esteem associated with his judicial office as a platform from which to criticize a candidate for elected office.”  It explained:

Fulfillment of judicial duties does not come without personal sacrifice of some opportunities and privileges available to the public at large.  And as a person the public entrusts to decide issues with utmost fairness, independence, and impartiality, a judge must at times set aside the power of his or her voice—which becomes inextricably tied to his or her position—as a tool to publicly influence the results of a local, regional, or national election.

The Court noted that the judge’s Facebook account was “private,” but that the judge did not argue that that privacy setting exempted his comments from regulation, explaining that the judge had not disclosed how many friends had access to his Facebook account, did not suggest “that those individuals would not share his comments or postings more widely,” and acknowledged that “his posts [might] be reposted by his friends.’”

Following the presidential election, the judge continued to post comments and articles regarding Trump and also posted comments or shared articles on other topics including immigration, gun violence, and voter participation.  The Court gave “illustrative examples—not a comprehensive recitation” of the posts, noting his posts regarding Trump “were laden with blunt, and sometimes indelicate, criticism.”

On November 8, the judge wrote a lengthy post on voter participation that opened: “Dear Generation X and Millennial Voters, So many people have tried to convince you of the importance of your participation in this year’s election. . . .  Let me join in the effort . . . by giving you the cold, hard truth:  You have to vote to stop your elders from screwing up your future!  What kind of future do you want?  Want help with your student loan debt?  Want affordable tuition?  Affordable health insurance? . . .  Grab a friend and Go Vote.”

3 days after the presidential election, the judge remarked, “Think I’ll go to the shelter to adopt a cat before the President-Elect grabs them all . . . .”

The day President Trump was inaugurated, the judge commented, “Welcome to governing.  Will you dig your heels in and spend the next four years undermining our country’s reputation and standing in the world? . . .  Will you continue to demonstrate your inability to govern and political incompetence?”

On February 13, the judge posted, “Welcome to the beginning of the fascist takeover.  [W]e need to . . . be diligent in questioning Congressional Republicans if they are going to be the American Reichstag and refuse to stand up for the Constitution, refuse to uphold their oath of office and enable the tyrants to consolidate their power.”

The judge argued that the Commission could not “regulate speech addressing social or political issues or ‘public officials in general,’” but only speech that “expressly criticizes or praises” a specific political candidate.  The judge acknowledged that his post-election statements about Trump were “direct, critical, and strident” but contended that they were not about a candidate for office and were “synonymous” with his “views on issues such as racism, civil rights, the plight of refugees, and constitutional limits on the executive branch.’”

The Court held that it could not resolve the “interesting and important constitutional issues” raised by the judge because he had not challenged the code restrictions on speech in a declaratory judgment action before violating them as required by the “contemporaneous constitutional objection requirement” it has imposed in previous cases.  The Court has held that “a judge may not raise a constitutional challenge for the first time in a judicial disciplinary proceeding” but must comply with “the law as it exists at the time” while challenging it in other proceedings.  Otherwise, the Court explained, judges may “appear to consider themselves above the law,” undermining public confidence in the judicial system.

The Court also concluded that accepting the judge’s constitutional contentions would not change the outcome of the case because the judge’s post referring to IRS audits and the judge’s other misconduct “amply justify” a 6-month suspension without pay.  The Court gave “significant weight” to the 2 letters of education the judge had received from the Commission, the 2 public reprimands he had received from the Court, and the 2 advisory opinions he had asked for and received that “offered substantial guidance” to him on inappropriate political commentary.  The Court held that a suspension of less than 6 months “would fail to adequately address the degree to which Judge Kwan has varied from our judicial code, the repeat nature of Judge Kwan’s conduct, his disregard of the specific guidance and former discipline he has received, and the importance of the principles his conduct has trampled,” noting “every time a judicial officer engages in misconduct, he or she spends the goodwill of the judiciary as a whole” and “readily” concluding that the judge “has been spending our goodwill.”  Noting that “previous endeavors to help Judge Kwan correct this behavior have not been successful,” the Court “regretfully conclude[d] that a sanction less severe than suspension without pay will suffer the same fate as our prior attempts.”

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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 web-site.

 

Interesting posts

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.”

More Facebook fails

Based on stipulations and agreements, the Washington State Commission on Judicial Conduct recently admonished 2 judicial officers for Facebook posts soliciting contributions to non-profit organizations.  (A public admonishment is “the least severe disciplinary action available” to the Washington Commission.)

In both orders, the Commission emphasized that the “prohibition against judicial solicitation of money does not reflect on the worthiness or virtue of the charity or cause in question” and “a near blanket prohibition upon fundraising by judicial officers is necessary as it would be impossible to exercise principled distinctions based on the nature of the charity involved, and it would be improper to have a government agency such as a conduct commission make such value choices.”  Noting that most judges “are quite conscious that they may not solicit funds for themselves or others in face-to-face encounters,” the Commission stated that “there is not a meaningful or workable distinction between in-person and written or electronic solicitations (although solicitations could be more or less egregious, depending on the context).”  The Commission noted that “social media is a relatively new form of communication,” “the law tends to lag behind technology,” and “[t]here has not yet been a Commission opinion addressing social media, so need for guidance is greater than in other areas.”

Thus, the Commission publicly admonished a supreme court justice for 2 posts soliciting support for non-profit organizations.  In re Yu, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).

Since 2013, the justice has maintained a Facebook page that, “[i]n Facebook parlance,” is a “government official” page that anyone can access and that no one can “friend.”  She does not solicit “followers” for the page.  The page identifies the justice as a member of the judiciary.  The justice is actively engaged in the community, she uses the page to educate viewers about matters related to the judicial branch, and her posts are intended to make the court and judicial officers more accessible and transparent to the public.

On April 22, 2018, the justice posted on her Facebook page:

Join Lifelong for Dining Out For Life on April 26!

On Thursday, April 26, raise your fork for Dining Out For Life!  Join Lifelong at one of 90 restaurants in the Greater Seattle Area who are set to donate 30-50% of their proceeds to vital programs that support people facing serious illness and poverty in our community.

https://www.diningdutforlife.com/seattle

Lifelong is a non-profit organization that provides recovery assistance for persons suffering from drug abuse and addiction.

On April 28, the justice posted on her Facebook page about Real Change, a weekly newspaper that employs homeless and previously homeless people as vendors.

I know many of you wonder what you might do about homelessness.  There are a myriad of policy issues that deserve your attention.  I can’t advise you on any of them.  But, here is one concrete thing you can do each week:  buy the “Real Change” newspaper from a vendor that you see on the street comers in Seattle.  They buy the paper for .60 and sell it for $2.00.  It is a business for each vendor.  The paper has interesting articles on housing, poverty, and other social issues.  If you don’t have cash, most will take payment with Venmo.  But how hard can it be to withdraw some cash each month, stuff it in your pocket, and just commit to buying the paper each week?  Support these folks who are just trying hard to earn some money in an honest way.

Screenshots of the 2 posts are included in the Commission order.

The Commission explained:

While these Facebook posts present no articulable element of coercion, the Commission finds that it is still an abuse of the prestige of judicial office.  The prestige is appropriately reserved for the service of the office itself, and not to be used for the individual benefit of the judge or others, regardless how generally good the cause may be.

Given the nature of her Facebook communications, the justice did not believe the posts rose to the level of a solicitation, but she acknowledged that the Commission is the body charged with interpreting facts and enforcing the code and deferred to its determination that the posts violated the code.  Recognizing that greater guidance is needed on the increasingly prevalent use of social media, the justice believes the stipulation will provide such guidance and raise awareness of the risks of sharing information on social media that could be construed as solicitations or endorsements.

The Commission also publicly admonished a judge for a post on his Facebook page encouraging people to attend a charity fund-raiser.  In re Svaren, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).  The judge had attended a “pancake feed” held to benefit the families of people killed during a mass shooting at the Cascade Mall in September 2016.  On his Facebook page, which is titled “Judge David Svaren,” the judge posted photos of signs at the event and text that read:

The Burlington Fire Department Pancake Feed is happening now and 100% of the proceeds go to benefit the families of the victims of the recent tragedy at Cascade Mall.  Please consider attending, it runs until noon today.

After a few weeks, the judge removed the post after reviewing it and realizing it may violate the code.  The judge was unable to recall or explain why he had not recognized at the time he made it that the post would violate the code.

In mitigation, the Commission noted, for example, that the judge has a long history of productive service as a judicial officer, had no prior discipline, cooperated with the Commission’s proceeding, and “recognized the problematic nature of the conduct, and removed the post even prior to contact from the Commission.”  However, the Commission concluded that its “failure to act on a case involving a Code violation on social media, even one with strong mitigators, could wrongly signal to judges and the public that online Code violations are somehow exempt from enforcement.”

See also In re Prewitt, Order (Missouri Supreme Court November 24, 2015) (public reprimand for, in addition to other misconduct, numerous posts on Facebook about charitable fund-raising events that noted a judge’s support for the organizations and encouraged others to contribute); In the Matter of Johns, 793 S.E.2d 296 (South Carolina 2016) (6-month suspension without pay for Facebook posts about a fund-raiser for a church, in addition to other misconduct); Private Warning and Order of Additional Education of a Municipal Court Judge (Texas State Commission on Judicial Conduct August 23, 2012) (private warning for entries on a Facebook page that indicated to the public that the judge was an organizer for a charitable fund-raiser); Pennsylvania Judicial Conduct Board Annual Report (2017) (private letter of caution to judge who re-posted a photographic advertisement of a fund-raising event for a charitable institution); Public Admonition of Metts (Texas State Commission on Judicial Conduct October 3, 2018) (public admonishment for organizing a school supply drive using court staff and advertising it in Facebook posts, soliciting donations to an individual in a Facebook post, and advertising his donation of a rifle to a charitable organization’s raffle in a Facebook post).

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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 here.

Facebook codes

The current version of the American Bar Association Model Code of Judicial Conduct does not make any reference to social media, not surprising since, when it was adopted in 2007, Facebook had only been available outside of colleges for 1 year, Twitter was only 1 year old, and Instagram and Snapchat had not even been created.  Even without an express reference, however, as numerous cases and advisory opinions have stated, the code obviously applies with equal force to virtual actions and on-line comments and in cyberspace as well as to more traditional forums for communication.

In addition, 4 states have adopted provisions in their codes that remind judges of their ethical obligations while on social media.

Most recently, the California Supreme Court adopted new language to commentary to Canon 2A that states:

A judge must exercise caution when engaging in any type of electronic communication, including communication by text or email, or when participating in online social networking sites or otherwise posting material on the Internet, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet.  The same canons that govern a judge’s ability to socialize in person, on paper, or over the telephone apply to electronic communications, including use of the Internet and social networking sites.  Those canons include, but are not limited to Canon 2B(2) (lending the prestige of judicial office), 3B(7) (ex parte communications), 3B(9) (public comment on pending or impending proceedings), 3E(2) (disclosure of information relevant to disqualification), and 4A (conducting extrajudicial activities to avoid casting doubt on the judge’s capacity to act impartially, demeaning the judicial office, or frequent disqualification).

Comment 5, Rule 3.1 of the Idaho code of judicial conduct states:

While judges are not prohibited from participating in online social networks, such as Facebook, Instagram, Snapchat, and the like, they should exercise restraint and caution in doing so.  A judge should not identify himself as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.

The West Virginia code includes a comment to Rule 3.1 that emphasizes:  “The same Rules of the Code of Judicial Conduct that govern a judicial officer’s ability to socialize and communicate in person, on paper, or over the telephone also apply to the Internet and social networking sites like Facebook.”

The preamble to the New Mexico code encourages judges and judicial candidates “to pay extra attention to issues surrounding emerging technology, including those regarding social media” and urges them “to exercise extreme caution in its use so as not to violate the Code.”

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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 (http://tinyurl.com/y99relfw) 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 (https://tinyurl.com/y8mdda4d) 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 here  https://www.ncsc.org/~/media/Files/PDF/Topics/Center%20for%20Judicial%20Ethics/SocialMediaandJudicialEthics%20Update.ashx