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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

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