November 01, 2014

To Follow or not to Follow: The Brave New World of Social Media

By Justice Barbara A. Jackson

In recent years, social media sites have become inextricably interwoven within the fabric of society. A 2012 report notes that “[i]n the court community, 2012 will probably be remembered as the year when some courts went from viewing new media as a threat to embracing new media’s possibilities as a powerful tool.”1 That same study states that a little over 46 percent of judges surveyed used a social media profile site, with Facebook being the most popular choice of over 86 percent of users. In comparison, the general public is using social media in far higher numbers:

Recent studies indicate that 85% of all American adults use the Internet and engage in a wide variety of online behaviors, including using search engines to find information, sending and receiving e-mail, checking the weather, receiving news, reading about politics, and maintaining a social media profile. For younger Americans, the numbers are even higher, with 98% of adults between the ages of 18–29 going online. But the Internet is no longer just a young person’s domain. In fact, 83% of American adults between the ages of 50–64 use the Internet, and 56% of adults age 65 and older are online, with 34% of those using social networking sites and 18% doing so on a typical day.2

In light of these increasing numbers, historic resistance to judges’ use of social media needs to be reevaluated and prohibitions against use should be discarded in favor of appropriate guidelines for social media use.

Judges come from different backgrounds and reach the bench through different routes. Some of us also come to the bench in a wide variety of different manners: Some of us are elected, some of us are appointed by the executive and others by the legislature, still others are appointed and then confirmed—and this does not exhaust the variety of different methods of judicial selection. Because of our different backgrounds, our needs and interests relative to social media will differ vastly as well.

Justice Don Willett of the Texas Supreme Court may be the most well-known member of the judiciary using one popular form of social media: Twitter.3 To date, Justice Willett has over 7,000 followers and almost 12,000 tweets.4 In a recent article, Coverage Opinions suggests that Justice Willett’s participation in social media is “a look into the future of the judiciary.”5 Although he first joined Twitter in 2009, Willett is candid in stating that he

tweeted only sporadically until his 2012 reelection campaign ramped up. He says he tweets “mainly as a campaign communication tool. More and more people consume information online, especially political information. Bottom line: for someone who has to run for reelection in a state of 26 million people, it’s political malpractice not to engage via social media.” He also tells [Coverage] that “people find it rare and refreshing for a Supreme Court Justice to step out from behind the bench and demystify things. Folks are surprised that stiff judges can be comedic, authentic and informative.6

In the same interview, Justice Willett discusses his self-imposed rules for using Twitter, “One cardinal rule: I don’t throw partisan sharp elbows or discuss issues that could appear before the Court. While I post links to U.S. legal news, I never give my two cents on disputed legal issues or pending cases. I strive to keep things witty, informative and interesting.” He says about Twitter: “Succinctness is the enemy of nuance. It’s tough to be precise in 140 characters, so conveying tone/nuance is tough. I just self-censor and try to be careful.”7

The Model Code of Judicial Conduct mandates that a judge “respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.”8 In addition, judges must “expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens.”9 As noted in ABA Formal Opinion 462, governing “Judge’s Use of Electronic Social Networking Media,” or ESM,

All of a judge’s social contacts, however made and in whatever context, including ESM, are governed by the requirement that judges must at all times act in a manner “that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” and must “avoid impropriety and the appearance of impropriety.” This requires that the judge be sensitive to the appearance of relationships with others.10

The Formal Opinion points out the differences between in-person and digital social interactions, reiterating the cautions about judicial conduct.

The Formal Opinion also addresses judges who are elected and notes that the Model Code

does not address or restrict a judge’s or campaign committee’s method of communication. In jurisdictions where judges are elected, ESM has become a campaign tool to raise campaign funds and to provide information about the candidate. Websites and ESM promoting the candidacy of a judge or judicial candidate may be established and maintained by campaign committees to obtain public statements of support for the judge’s campaign so long as these sites are not started or maintained by the judge or judicial candidate personally.11

My own experience with ESM leads me to conclude that the policy enunciated in this Formal Opinion is unwise. I became interested in social media in 2009 for two reasons: First, my 30th class reunion was being planned on Facebook and, second, I recognized that my next campaign—which I anticipated would be three years away—was going to require some type of social media presence.

As it turned out, I ran for my current seat on the Supreme Court of North Carolina in 2010 and I concluded approximately four months prior to the November election that I needed to have a presence on Twitter, in addition to Facebook and LinkedIn.12 Although I was comfortable with Facebook by then, Twitter was a brave new world, daunting in its 140-character limit, so I hired a 20-something social media consultant to help run my Twitter account. I quickly learned that this was not a great idea. Although she was very bright and talented, she came from the traditional partisan campaign structure, and I found myself deleting her tweets because they were not sufficiently circumspect.13 Since then, I have done all my own tweeting for many of the reasons set forth in Formal Opinion 462 and have followed generally the same self-imposed guidelines utilized by Justice Willett.

I think it is very difficult to delegate the communication responsibility for your campaign to someone who does not have a keen understanding of what it means to be a judge, and many of our young, enthusiastic campaign workers simply lack the life experience to discern what is and is not appropriate. If a judge chooses to participate in the fast-paced world of ESM, fully delegating that responsibility may prove perilous.

There are obvious differences between in-person and digital social interactions. In contrast to fluid face-to-face conversation that usually is limited to the participants, messages, videos, or photographs posted to ESM may be disseminated to thousands of people without the consent or knowledge of the original poster. Such data have long—perhaps permanent—digital lives that may be recovered, circulated, or printed years after being created. In addition, relationships over the Internet are more difficult to manage because, in the absence of in-person visual or vocal cues, messages may be taken out of context, misinterpreted, or relayed incorrectly.

The Formal Opinion is among a number of useful first steps aimed at bringing to the attention of the bench and bar the possibilities and pitfalls of judicial involvement in social media. Arguably, however, there are internal inconsistencies in the Formal Opinion that raise concern. For example, the opinion states, “A judge who has an ESM connection with a lawyer or party who has a pending or impending matter before the court must evaluate that ESM connection to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court.”14 But then, on the next page, the opinion states, “[N]othing requires a judge to search all of the judge’s ESM connections if a judge does not have specific knowledge of an ESM connection that rises to the level of an actual or perceived problematic relationship with any individual.”15 It seems that both statements cannot be correct. Either a judge must constantly be aware of all of his or her ESM connections to potential parties or he or she is not required to do so. Given the magnitude of contacts an individual may have over a range of ESM sites, this task may be impractical, if not impossible.

In addition, the Formal Opinion states that judges have an obligation to manage the privacy settings on their ESM sites to ensure that their views on political issues do not become public. However, an earlier statement in the opinion advises, “Judges must assume that comments posted to an ESM site will not remain within the circle of the judge’s connections.”16 Taking this statement literally, it means that judges should never comment on political or public policy matters on ESM sites because the comments will not remain private, and tinkering with privacy settings will not help. Of course, as a practical matter, the larger issue is, should a judge ever comment on “political issues”?

Finally, any policy adopted necessarily must address the fact that judges come to the bench through different routes and retain their offices in a variety of ways. There are, inter alios, judges appointed for life, judges elected who periodically seek reelection through either partisan or nonpartisan elections, judges elected or appointed who retain office through retention elections, and judges appointed through merit selection who retain office through contested elections or retention. A narrow approach to the social media issue will not fully address the concerns raised by judges who confront such diverse scenarios. Instead, a broad, principled set of guidelines will better ensure that members of the judiciary are able to utilize social media, or ESM, in an ethical manner, which is the ultimate goal of any such policy guidelines.

One of the benefits of adopting a broad approach is that it will be flexible enough to encompass the proliferation of social media sites that continues to occur. Judges may utilize some of these sites professionally and for advancement of their reelection to office—Facebook, Twitter, LinkedIn, and Instagram are obvious examples—but they also may enjoy using some of these sites to engage with friends and family, or in further pursuit of hobbies—Pinterest, GoodReads, Houzz, and Flixster are notable examples.

With these objectives in mind, it may be reasonable to look to several guiding principles for social media usage suggested by Professor Michael Crowell at the University of North Carolina at Chapel Hill School of Government. Professor Crowell has written at some length on ESM in his paper “Judicial Ethics and Social Networking Sites.”17 He suggests the following guidelines, distilled from reviewing the ethics opinions generated as of August 2012:

  1. Judges may join on-line social networks.
  2. Social networks create opportunities and temptations for ex parte communication that judges must be careful to avoid.
  3. Judges are still judges when posting materials on their social networking pages and need to realize that the kinds of comments and photographs posted by others may not be appropriate for them.
  4. Judges need to avoid on-line ties to organizations that discriminate, just as they are prohibited from joining such organizations.
  5. Judges also need to avoid on-line ties to organizations that may be advocates before the court.
  6. Judges need to avoid posting comments on social network sites or taking other actions on such sites that lend the prestige of the judge’s office to the advancement of a private interest.18

These principles are straightforward, but they cover a broad range of issues that confront judges who wish to use social media. Professor Crowell wisely cautions that “[j]udges also should be aware of the security issues that come with social networking. A judge’s page on Facebook or MySpace or other social network can provide lots of information to someone who is dissatisfied with the judge’s decisions and wants to do harm.”19

Yet, the judiciary skirts/declines/ignores participation in ESM and other forms of participation not only at its own peril, but also as a detriment to the parties who appear before it. As noted by U.S. Supreme Court Justice Samuel Alito recently in his dissent in Brown v. Entertainment Merchants Association,20

In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology.21

Justice Elena Kagan—the youngest member of the Court—later had this to say about the Court’s lack of proficiency with modern technology: “The justices are not necessarily the most technologically sophisticated people,” adding that while clerks regularly e-mail each other, the Court as a whole “hasn’t really ‘gotten to’ email.”22 She goes on to note that this may “sound quaint and endearing, until you remember that these are the people charged with interpreting the law of the land on issues like online privacy and digital surveillance.”23 The progression of technology and its continued presence before our courts are precisely what argues for members of the judiciary staying engaged and understanding how various forms of ESM work. If we do not have some basic understanding of the medium, how do we evaluate it as judges?

Still, all this communication contains many traps for the unwary. It is inherently spontaneous, and spontaneity can be the downfall of anyone in public life. One ill-chosen post, photo, or tweet sent in a moment of anger, frustration, or misplaced humor can do irreparable damage. So, although many individuals have privacy settings on their accounts, I have chosen not to place any restrictions on access to my accounts. I think this helps keep me keenly aware of what I am posting and how it will be perceived; however, this may not be the best course of action for everyone, as one federal district court judge recently learned. While I was a master’s student at Duke, my research led me to stumble upon the regrettable term “bench slapping.”24 The most recent, very well-publicized example of a bench slap is U.S. District Court Judge Richard Kopf’s blog post about SCOTUS’s Hobby Lobby opinion.25 In his post, Judge Kopf states, “Next term is the time for the Supreme Court to go quiescent. . . . As the kids say, it is time for the Court to stfu.”26 This turned into the bench slap heard round the world and has resulted in Judge Kopf backing away from blogging in the short term.27 This post reminds us that no matter what forum we are in, judges are still judges.

Endnotes

1. Conference of Court Pub. Info. Officers, 2012 CCPIO New Media Survey 2 (July 31, 2012), http://ccpio.org/wp-content/uploads/2012/08/CCOIO-2012-New-Media-ReportFINAL.pdf.

2. Julian L. Bibb IV, Note, The Modern Justice’s Dilemma: How to Harness Social Media to Garner Reelection Support While Maintaining Ethical Propriety, 38 J. Legal. Prof. 295, 295 (2014) (internal footnotes omitted).

3. Declarations: The Coverage Opinions Interview Justice Don Willett of the Supreme Court of Texas, Coverage Opinions (May 7, 2014), http://www.coverageopinions.info/Vol3Issue8/Declara tions.html.

4. Justice Don Willett, Twitter, https://twitter.com/JusticeWillett (last visited Aug. 1, 2014).

5. See Declarations, supra note 3.

6. Id.

7. Id.

8. Model Code of Judicial Conduct pmbl. (2011).

9. Id. at R. 1.2 cmt. 2.

10. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 462 (2013) (citing Model Code Rule 1.2). But see Dahlia Lithwick & Graham Vyse, Tweet Justice, Slate (Apr. 30, 2010), http://www.slate.com/articles/news_and_politics/juris prudence/2010/04/tweet_justice.html (describing how a state judge circumvents ethical rules prohibiting ex parte communications between judges and lawyers by asking lawyers to “de-friend” her from their ESM page when they’re trying cases before her; the judge also used her ESM account to monitor status updates by lawyers who appeared before her) (internal footnote omitted).

11. ABA Comm. on Ethics & Prof’l Responsibility, supra note 10 (footnote omitted).

12. I actually learned about LinkedIn at a campaign event from a professional woman who told me that I needed to be on LinkedIn because its reach was far greater than Facebook’s. Although I joined LinkedIn in 2010, I did not have a sufficient understanding of it nor sufficient contacts to utilize it well during that campaign.

13. For example, I had to remove a number of tweets that appeared to be endorsing partisan political positions.

14. ABA Comm. on Ethics & Prof’l Responsibility, supra note 10.

15. Id.

16. Id.

17. Michael Crowell, Judicial Ethics and Social Networking Sites, U.N.C. Sch. Gov’t (Aug. 10, 2012), http://www.sog.unc.edu/sites/www.sog.unc.edu/files/RS01-Drennan-Judges%20social%20 networking%20Aug%2012.pdf.

18. Id.

19. Id.

20. 131 S. Ct. 2729, 2742 (2011) (Alito, J., dissenting).

21. Id.

22. See Will Oremus, Elena Kagan Admits Supreme Court Justices Haven’t Quite Figured Out Email Yet, Slate (Aug. 20, 2013), http://www.slate.com/blogs/future_tense/2013/08/20/elena_kagan_supreme_court_justices_haven_t_gotten_to_email_use_paper_memos.html.

23. Id.

24. “A benchslap is when a judge humiliates an attorney, insults another judge, or reverses a lower court in a particularly demeaning manner.” Benchslap Definition, UrbanDictionary.com, http://www.urbandictionary.com/define.php?term=benchslap (last visited Aug. 1, 2014). According to the New York Times, David Lat coined the term “bench-slap.” Jonathan Miller, He Fought the Law. They Both Won., N.Y. Times, Jan. 22, 2006, http://www.nytimes.com/2006/01/22/technology/22njCOVER.html.

25. Judge Richard George Kopf, Remembering Alexander Bickel’s Passive Virtues and the Hobby Lobby Cases, Hercules and the Umpire: The Role of the Federal Judge (July 5, 2014), http://herculesandtheumpire.com/2014/07/05/remembering-alexander-bickels-passive-virtues-and-the-hobby-lobby-cases/.

26. Id. “STFU” is an acronym for “shut the f*** up.”

27. See Colin Campbell, Judge Might Give Up Blogging After Telling Supreme Court to “STFU,Bus. Insider (July 7, 2014), http://www.businessinsider.com/judge-richard-kopf-may-give-up-blogging-after-telling-supreme-court-stfu-2014-7.