August 12, 2019 Feature

Stumbling Online

By Cynthia Gray

Judges (although always only a few) struck up inappropriate relationships, independently investigated facts, publicly commented on pending cases, and made controversial, biased statements before Facebook, so it is the mode of communication rather than the type of misconduct that distinguishes the spate of judicial discipline cases involving social media that began in 2009 and has accelerated since with no sign of abatement.1 Although the advice to exercise “constant vigil” is apt for everything a judge does, not just social media,2 there seems to be something about social media that is a multiplier for misconduct, perhaps the “online disinhibition effect” that has been identified for users in general.3 Moreover, given the high standards to which they are held, the ease of communication on social media poses particular dangers for judges by “encourag[ing] informality,” “foster[ing] an illusory sense of privacy,” and “enabl[ing] too-hasty communications that, once posted, are surprisingly permanent.”4

As illustrated by judicial discipline cases, several social media missteps keep tripping up judges.

Delegation of social media management without sufficient supervision has gotten several judges in trouble. For example, the Texas State Commission on Judicial Conduct admonished a judge for posts advertising a school supply drive and other charitable fund-raising even though a member of his judicial staff handled his Facebook page and many posts were made without his prior authorization.5

Similarly, several judicial candidates have been sanctioned for comments on their campaign Facebook pages that violated the code of judicial conduct even though the page was established and maintained by a campaign manager or consultant. For example, the Nevada Commission on Judicial Discipline reprimanded a former judge for a photoshopped picture of her and an actor that her campaign manager had posted on her campaign Facebook page, which misled the public that “the Rock” had endorsed her campaign.6 The Commission found that the judge had not taken reasonable measures to ensure that her campaign representatives complied with the code of judicial conduct, noting that her contract with her campaign manager did not require prior approval for posts and that they had not discussed the prohibitions in the code. The Commission reminded judicial candidates that having campaign-related social media platforms maintained by a campaign committee or others does not insulate the candidate from the requirements of the code.

The gratification that comes with others’ “likes,” “shares,” and LOL comments can tempt judges to aim for attention-grabbing, rather than confidence-building, posts. For example, an Arizona judge began a post about an eviction proceeding over which he had presided with, “In the category of, You can’t make this stuff up!” and responded to a comment on the post with, “It goes without staying [sic] but the tenant wasn’t the brightest bulb in the chandelier.”7

A Minnesota judge began a Facebook post, “listen to this and conclude that lawyers have more fun than people” and then described a medical school graduate’s petition to expunge her conviction for disorderly conduct based on her assault on her boyfriend whom she had found having sex with her best friend. He explained that he granted the petition although “[s]he is about two years early based on our new statute.” Others’ comments on the judge’s post stated, for example, “I am always heartened by the application of common sense. An excellent decision, in my opinion.” Those favorable comments, the Minnesota Board on Judicial Standards concluded, created the appearance that the judge’s “decisions on cases could be influenced by the desire to make a good impression of himself on his Facebook page.”8 In a public reprimand, the Board found that the judge had “put his personal interest in creating interesting posts ahead of his duty to maintain the appearance of impartiality.” Similarly, the West Virginia Judicial Investigation Commission publicly admonished a judge for a post that was “contrary to the neutral and detached demeanor of all judges but was undoubtedly popular with his friends.”9

Several judges have been disciplined for Facebook posts that they believed could not be viewed by anyone except their “friends,” when in fact they could be viewed by everyone, illustrating the perils of participating on social media without becoming familiar with privacy settings.10 However, although regulating who can see posts may reduce the possibility of a viral violation, notoriety is still possible no matter what the setting as members of a judge’s inner circle may innocently or maliciously rebroadcast a judge’s posts. Therefore, judges should consider “any statement posted online to be a public statement and take care to limit such actions accordingly.”11 Moreover, it is unclear whether even among family and close friends online judges can let their guard down about being dignified or using the prestige of office, for example, and it is unlikely that strict privacy settings would immunize a judge’s comments on pending cases or controversial statements on hot-button issues.

Several discipline cases illustrate the difficulty some judges have had applying familiar code provisions in the unfamiliar setting of social media. For example, the Washington State Commission on Judicial Conduct admonished two judicial officers for Facebook posts soliciting contributions to nonprofit organizations.12 Stating that most judges “are quite conscious that they may not solicit funds for themselves or others in face-to-face encounters,” the Commission concluded that there is no “meaningful or workable distinction between in-person and written or electronic solicitations. . . .” In both cases, the Commission noted, “social media is a relatively new form of communication,” and more guidance is needed.

Suggestions

Although, like everyone else, judges can take part in social media, like everywhere else, judges must anticipate intensive scrutiny on social media and accept burdensome restrictions that do not apply to other users.13 Thus, a judge should not try her hand at social media unless she is committed to doing the initial work and making the continuing effort necessary to comply with the code of judicial conduct while friending, tweeting, Instagramming, or otherwise posting.

For example, before participating on social media, a judge should

  • Reread the code of judicial conduct, thinking about how each rule may raise issues online.
  • Read the resource materials available on judicial ethics and social media.14
  • Ask her state’s judicial ethics committee for an advisory opinion on issues such as friending attorneys and using the judicial title on social media.
  • Become knowledgeable about each social media site, its terms, and privacy and security settings by reading the FAQs, taking online tutorials, and asking friends, family, and colleagues for advice and assistance.

While on social media, a judge

  • Should not lower her ethical guard just because she is looking at a screen.
  • Should assume everything she says and does can become public regardless what her privacy settings are.
  • Should remember that her “likes” and “shares” will be considered endorsements of the content even if that is not what she intended.
  • Should consider closing an account if problems arise.
  • Should not do anything anonymously or under a pseudonym that she could not or would not otherwise do.
  • Should not delegate responsibility for social media accounts to court staff or others, at least without specific instructions and frequent review.
  • Should think thrice before clicking. 

Endnotes

1. See Social Media and Judicial Ethics: Part 1, 39 Jud. Conduct Rep., no. 1, Spring 2017, at 1, https://tinyurl.com/y5qlnkoz; Social Media and Judicial Ethics: Part 2, 39 Jud. Conduct Rep., no. 2, summer 2017, at 2, https://tinyurl.com/y2ezdswu.

2. Ohio Advisory Op. 2010-7 (Dec. 3, 2010), https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_10-007.pdf.

3. Online disinhibition effect “is the lack of restraint one feels when communicating online in comparison to communicating in-person. Possible influencing factors toward online disinhibition include anonymity, invisibility, asynchronous communication, empathy deficit, in addition to individual factors like personality and culture background.” Online Disinhibition Effect, Wikipedia, https://en.wikipedia.org/wiki/Online_disinhibition_effect.

4. In re Whitmarsh, Determination (N.Y. Comm’n on Jud. Conduct Dec. 28, 2016), http://tinyurl.com/hrd76e3.

5. Pub. Admonition of Metts, CJC No. 17-1329-CO (Tex. Comm’n on Jud. Conduct Oct. 3, 2018), https://tinyurl.com/ycm2gp77. See also Pub. Reprimand of Lopez, CJC Nos. 16-0513-MU & 16-0540-MU (Tex. Comm’n on Jud. Conduct June 6, 2018), https://tinyurl.com/ybmfteyn (reprimand for campaign advertisements for other candidates posted on his Facebook page, in addition to other misconduct, even though he had not authorized the posts and did not know about them until he received the Commission’s inquiry).

6. In re Almase, Case No. 77227, Findings of Fact, Conclusions of Law & Imposition of Discipline (Nev. Comm’n on Jud. Discipline Oct. 22, 2018), https://tinyurl.com/y865qdxy. See also Inquiry Concerning Santino, 257 So. 3d 25 (Fla. 2018) (removal of judge for criticism of her campaign opponent for representing criminal defendants on a Facebook page that was created by an electioneering communications organization formed by her campaign consultant).

7. Urie, Complaint 18-119, Order (Ariz. Comm’n on Jud. Conduct June 12, 2018), https://tinyurl.com/y9d9surv. The Arizona Commission on Judicial Conduct publicly reprimanded the judge for mocking the tenant. The post described a maintenance man’s testimony in an eviction case about finding heroin under the bathroom rug in the tenant’s apartment. (The judge referred to the individuals by their role in the case rather than name.) The tenant testified that the heroin was not his, explaining that cocaine was his drug of choice and he keeps his drugs in a safe. When asked how the heroin got into his apartment, the tenant replied: “I don’t know. Maybe one of the hookers I had in my apartment left it.” The judge’s 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 [sic] but the tenant wasn’t the brightest bulb in the chandelier.”

8. In re Bearse, File No. 15-17, Public Reprimand (Minn. Bd. on Jud. Standards Nov. 20, 2015), https://tinyurl.com/hzvhmln.

9. In re Hall, Complaint No. 114-2017, Public Admonishment (W. Va. Jud. Investigation Comm’n Oct. 31, 2017), http://tinyurl.com/yc3x8aly. The judge had posted on his Facebook page a photo showing him conducting an initial appearance. The post elicited several comments in support of the judge’s handling of the arraignment, such as “[g]o Brent” and “[g]et ’em Brent,” and “[t]hat face! Good one.”

10. In re Bearse, Public Reprimand (reprimand for Facebook comments about cases that anyone but judge had believed could be viewed only by approximately 80 family members, friends, and members of his church); In re Whitmarsh, Determination (N.Y. Comm’n on Jud. Conduct Dec. 28, 2016), http://tinyurl.com/hrd76e3 (admonishment for criticizing on Facebook a felony complaint against a town council candidate the judge had intended to be seen only by her 352 Facebook “friends,” apparently forgetting that she had set her privacy settings to “public” for an unrelated reason a few years earlier).

11. State v. Thomas, 376 P.3d 184 (N.M. 2016).

12. In re Svaren, CJC No. 8348-F-182, Stipulation, Agreement, and Order (Wash. Comm’n on Jud. Conduct Dec. 7, 2018), http://tinyurl.com/yd8drd98 (admonishment, based on a stipulation and agreement, for a Facebook post encouraging people to attend a charity pancake feed); In re Yu, CJC No. 8960-F-183, Stipulation, Agreement, and Order (Wash. Comm’n on Jud. Conduct Dec. 7, 2018), http://tinyurl.com/yava9qfm (admonishment, based on a stipulation and agreement, for two Facebook posts soliciting support for nonprofit organizations).

13. Model Code of Jud. Conduct r. 1.2, cmt. 2 (Am. Bar Ass’n 2007), https://tinyurl.com/y5yfzmpj.

14. For example, the National Center for State Courts published a two-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics in the spring and summer 2017 issues of the Judicial Conduct Reporter. Part 1, supra note 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, supra note 1, covered off-bench conduct: conduct that undermines public confidence in the judiciary, commenting on issues, abuse of the prestige of office, provision of legal advice, disclosure of nonpublic information, charitable activities, political activities, and campaign conduct. In addition, the Center keeps a running update of advisory opinions and disqualification case law since publication of the article on its website (https://tinyurl.com/y64asbmx) and frequently posts about the issue on its blog (https://ncscjudicialethicsblog.org).

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By Cynthia Gray

Cynthia Gray is director of the Center for Judicial Ethics of the National Center for State Courts.