When All That Twitters Is Not Told: Ethical Risks in Judicial Use of Social Media

But judges are also human, and just as social media is often a window into the less desirable personality traits of people from other walks of life, judges’ social media use has sometimes veered off into the inappropriate and inflammatory. In the polarized political climate that has characterized the United States in recent years, it is hardly surprising that some judges have given in to the temptation to venture onto social media to weigh in on political issues and controversies. In the spring 2021 issue of the Judicial Conduct Reporter, for example, Cynthia Gray of the National Center for State Courts has an illuminating article entitled Social Media Posts by Judges on Controversial Issues.³ In it, she describes a number of recent instances of judges who have been disciplined for social media posts about political or controversial issues. They include the following:

• Tennessee criminal court judge Jim Lammey, who received a public reprimand for making partisan Facebook posts on a wide range of political or politically charged issues, including sharing posts critical of the Democratic Party platform and then presidential candidate Hillary Clinton; undocumented immigrants; the Black Lives Matter movement; transgender bathrooms; professional athletes’ kneeling during the national anthem; and the credibility of various federal agencies.
• New York town justice Robert Schmidt, who received an admonishment in 2020 for Facebook posts that implied former President Bill Clinton had killed Jeffrey Epstein, and that mocked gun control laws.
• Texas county judge Daniel Burkeon, who received a public reprimand in 2018 for “improper and inappropriate” Facebook posts that railed against liberals, endorsed the extermination of Muslims, and applauded the election of Donald Trump.
• Minnesota judge Matthew Quinn, who received a public reprimand in 2021 for a number of “likes” and comments on his Facebook page reacting to posts endorsing or opposing multiple candidates for public office, as well as “liking” the Donald Trump Facebook page, posting pictures of himself at a Trump Boat Parade, and making comments both in favor of Trump and critical of President Joe Biden.
• Utah justice court judge Michael Kwan, who received a six-month suspension from the Utah Supreme Court in 2019 for Facebook posts critical of then candidate Donald Trump, as well as one shortly after Trump’s inauguration that said, “Welcome to the beginning of the fascist takeover.”

These are just a handful of the many instances in which judges have faced disciplinary action for violating canons of judicial conduct through their social media activity. Judges have been warned time and time again about the importance of being familiar with privacy settings for their social media pages, as well as about the assumption that even comments intended to be private may not remain so. In 2016, the New Mexico Supreme Court cautioned judges that they should “not participate in an online social networking site without being familiar with that site’s privacy settings and how to modify them.”⁴ In 2013, the American Bar Association (ABA) warned that “Judges must assume that comments posted to [a social media] site will not remain within the circle of the judge’s connections,” an admonition echoed by judicial ethics authorities in states like Massachusetts (judges must consider all “Facebook communications to be potentially public and, once made, wholly outside of the judge’s control”) and California (judges “must assume that all statements made on social media platforms will reach the widest possible audience regardless of whatever viewing restrictions or privacy settings a judge applies”).⁵

It is important to note that it’s not just overt activity on social media that can spell trouble for judges. Even more benign conduct, such as clicking a “like” or “heart” icon in response to someone else’s post or tweet, can raise doubts about a jurist’s impartiality. So can sharing or retweeting a link to what someone else has posted, or even “following” an individual or entity on Twitter with a connection to a pending case—however tangential that connection might seem. As the following discussion of cases from two Texas state courts and one California federal court illustrates, a judge’s undisclosed presence on Twitter can lead to questions about potential bias and even recusal motions.

A Pair of Cautionary Tales from Texas

Consistent with those judicial governing bodies and ethics authorities throughout the United States which have recognized that there are both benefits and risks presented by judicial use of social media platforms, the only two reported cases in Texas on the subject have signaled approval while urging caution. In Youkers v. State (a criminal case in which the trial judge appropriately reported ex parte contact via Facebook by the alleged victim’s father, a Facebook friend of the judge), Texas’s Fifth Court of Appeals noted social media’s value to judges in remaining engaged with the communities they serve as well as in facilitating political campaigns.⁶ At the same time, the court urged judges to be “mindful of their responsibilities under applicable judicial codes of conduct” and reminded them that the same ethical rules apply to online conduct. Two years later, in In re Honorable Michelle Slaughter, a Special Court of Review appointed by the Supreme Court of Texas heard the appeal of a judge who’d been disciplined (and recused) in connection with certain Facebook posts about the case before her.⁷ In holding that Judge Slaughter’s conduct did not warrant judicial discipline, the court stated that judges should be aware both that their conduct on social media is subject to existing ethical rules and that posts or tweets by judges about their own proceedings “create the very real possibility of a recusal (or even a mistrial) and may detract from the public trust and confidence in the administration of justice.”

As two Texas judges have learned, even seemingly benign behavior on Twitter—retweeting or “liking” the tweets of others, or following someone connected to the case before her—can result in recusal, voluntary or otherwise. In 2016, Judge Staci Williams of Dallas County’s 101st Judicial District Court was presiding over State Fair of Texas v. Riggs & Ray, P.C. The lawsuit had been brought by the ostensibly nonprofit corporation that oversees the annual State Fair of Texas against an Austin law firm that had filed an open records request seeking extensive financial records, contracts, and correspondence between fair executives and various Dallas government officials. The litigation was closely followed and covered by certain local journalists, including on Twitter. Beginning in the summer of 2016, Judge Williams’s activity on her official Twitter account began to attract the plaintiff’s attention. In July, she retweeted, without comment, a tweet by a local radio host and political commentator referencing the case, linking to an article sympathetic to the defendant’s position and praising the judge. On another date, Judge Williams had “liked” a tweet by a Dallas City Council member that linked to another news article by a different journalist that was again sharply critical of the plaintiff and its position.

In Twitter parlance, retweeting without comment or indication of disagreement is commonly understood to signify approval, while “likes” are usually understood to show appreciation for a tweet. Reacting to the judge’s retweet and “like”—publicly posted approval by Judge Williams of tweets linked to reporting that was highly critical of one party’s position in the case—the plaintiff filed a motion to recuse on November 29, 2016. In December, Judge Williams voluntarily recused herself and asked for a new judge to be assigned to the case. Regardless of whether this Twitter activity truly reflected a lack of impartiality, one can certainly understand why one party might question the judge’s impartiality; at the very least, such activity created the appearance of bias or impropriety.

But instead of a retweet or a “like,” what about a judge who follows one of the parties on Twitter? That was the question posed in a 2015 Texas case, Texas Ethics Commission v. Michael Quinn Sullivan.⁸ In that case, the Texas Ethics Commission (TEC) (a state agency charged with administering and enforcing statutes governing elections and related governmental processes) filed an action against Sullivan (a conservative activist and president of an influential conservative-leaning organization) for failure to register as a political lobbyist. Sullivan appealed the TEC’s decision in that case by filing suit in Denton County, Texas, his alleged county of residence. The TEC disputed his residency and filed a motion to transfer venue; Sullivan responded by filing a motion to dismiss the TEC’s claims under Texas’s anti-SLAPP law. On February 18, 2015, the case was heard by Judge Steve Burgess of the 158th Judicial District Court, and he denied the motion to transfer venue and granted Sullivan’s motion to dismiss.

That same day, however, a reporter for the Fort Worth Star-Telegram tweeted about the hearing, noting that Judge Burgess was a Twitter follower of Sullivan. The next day, the same reporter posted on Twitter that “1 day after ruling in [Sullivan’s] favor without disclosing he’s a Twitter follower, judge deletes account.” On February 23, the TEC filed a motion to recuse Judge Burgess, arguing that the jurist’s following of Sullivan on Twitter not only called into question Burgess’s impartiality but also made it likely that Burgess and Sullivan had ex parte communications using the platform. The later accusation had no foundation; for two Twitter users to communicate privately, both must follow each other—and there was no indication that Sullivan likewise followed Judge Burgess. Moreover, it was hardly unusual that an elected Republican judge like Steve Burgess, in a decidedly Republican county and state, might choose to follow the Twitter account of the leader of an influential conservative organization known for its endorsements of Republican political candidates—including judges. Certainly, there was no indication that, of Sullivan’s nearly 15,000 Twitter followers, Judge Burgess and Sullivan enjoyed any real relationship.

Despite all of this, another judge was appointed to hear the recusal motion, and that judge granted it. Should following a party automatically warrant recusal? Courts and judicial ethics opinions have already addressed the question of a judge’s Facebook friendships with parties, counsel, and even expert witnesses, with most noting that such a tenuous connection is not disqualifying—absent other indications of a special relationship or position of influence, or the potential for bias. In Judge Burgess’s case, the appearance of impropriety was likely not helped by either his failure to disclose the connection or his deletion of his Twitter account after the journalist’s revelation. But as we shall see, a more troubling picture emerges when you have a presiding judge who not only follows the counsel for one side in a case but who also engages in questionable retweets as well.

A Federal Judge, a High-Profile Case, and Twitter

In a case that nearly reached the U.S. Supreme Court, a federal judge was almost recused because of his Twitter activity. In the 2017 case of United States v. Sierra Pacific Industries, Inc., U.S. District Court Judge William B. Shubb was presiding over a case arising out of a 2007 wildfire that had devastated nearly 65,000 acres in California.⁹ The federal government, which blamed lumber producer Sierra Pacific, reached a settlement that the lumber company sought to vacate. Judge Shubb denied Sierra Pacific’s motion. It appealed, pointing out that not only was Judge Shubb a Twitter follower of the federal prosecutors on the case—and so had received tweets about the merits of the case from the prosecutors’ Twitter account—but also that he himself had tweeted about the case from his then public Twitter account (@Nostalgist1).

On the same day that Judge Shubb denied Sierra Pacific’s motion to set aside the settlement, the U.S. Attorney’s Office for the Eastern District of California posted multiple tweets about the case. In addition, Judge Shubb tweeted a link to a news article about his ruling, bearing the headline Sierra Pacific Still Liable for Moonlight Fire Damage. This irked the lumber giant, which had expressly denied liability as part of the settlement. The defendants appealed, arguing (among other grounds) that the judge had violated multiple canons of the Code of Conduct for U.S. Judges. These included Canon 2, calling for judges “to avoid impropriety and the appearance of impropriety in all activities”; Canon 3A(4), prohibiting ex parte communications or any “communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers”; and Canon 3A(6), mandating that a judge “should not make public comment on the merits of a matter pending or impending in any court.” Sierra Pacific also argued that, under Canon 3C, Judge Shubb was required to disqualify himself “in any proceeding in which his impartiality might reasonably be questioned.”

While the case was on appeal, the federal prosecutors notified Judge Shubb that his Twitter activity had become an issue. Shortly thereafter, the judge changed his Twitter account from “public” to “protected,” a privacy setting permitting only certain authorized followers to view his tweets.

In July 2017, the U.S. Court of Appeals for the Ninth Circuit affirmed the trial court’s ruling and declined to require Judge Shubb’s recusal on procedural grounds. However, the court recognized the significance of the issue arising out of Judge Shubb’s Twitter activity, saying, “[T]his case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases, and we reiterate the importance of maintaining the appearance of propriety both on and off the bench.”

Undaunted, Sierra Pacific filed a petition for writ of certiorari to the U.S. Supreme Court. The question presented asked whether a district court judge’s impartiality might reasonably be questioned “when he not only follows the prosecution on social media, but also, just hours after denying relief to the opposing party, tweets a headline and link to a news article concerning the proceedings pending before him.” Despite the questions raised, however, in June 2018, the U.S. Supreme Court denied the petition for writ of certiorari.

Conclusion

The Ninth Circuit may not have felt that, given Twitter’s importance as a news source, a judge merely following the government prosecutors on Twitter doesn’t evidence the personal relationship needed for recusal. And, as noted earlier, most ethics opinions and disciplinary cases have noted that digital connection between a judge and litigant—like being a Facebook “friend” or a Twitter follower—is less meaningful than “real-world” relationships. ABA Formal Opinion 462—Judge’s Use of Electronic Social Networking Media—is just one such opinion that indicates the existence of such a connection alone may not warrant disclosure, much less recusal or disqualification. But under Rule 1.2 of the Model Code of Judicial Conduct, judges are admonished to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Rule 2.11(A)(1) of the ABA Model Code states that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned,” including circumstances where the judge “has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.”

Following one party or its counsel on Twitter, combined with behavior that denotes tacit approval of or agreement with that party’s statements—such as a “like” or a retweet—can certainly call into question a judge’s impartiality and lend at least the appearance of impropriety. Consider, for example, the case of Barron County Circuit Court Judge Michael Bitney of Wisconsin. In 2017, Judge Bitney presided over a contested hearing in a custody dispute between mother Angela Carroll and father Timothy Miller. After the hearing, but before rendering a decision, Judge Bitney accepted a Facebook “friend” request from Carroll. Over the course of the next 25 days, Carroll “liked” 16 of the judge’s Facebook posts, “loved” two more, commented on two of his posts, and shared and “liked” several third-party posts that related to a contested issue at the hearing (domestic violence). Judge Bitney did not “like” or comment on any of Carroll’s posts, nor did he reply to any of her comments on his posts. However, the judge never disclosed the Facebook friendship or Carroll’s communications, and he ultimately ruled entirely in the mother’s favor.

On the same day as his decision, Carroll posted “the Honorable judge has granted everything we requested.” Miller, the husband, discovered the Facebook connection and moved for reconsideration of the ruling and for Judge Bitney’s disqualification. While Judge Bitney admitted to the Facebook interactions, he maintained that he was impartial. The appellate court reversed and remanded the case, with directions to have it heard before a different judge. On appeal to the Wisconsin Supreme Court, the high court affirmed the appellate decision, concluding that “the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation.”

The Wisconsin Supreme Court based its conclusion that “a serious risk of actual bias” had been shown on the totality of the circumstances. These included the timing of the Facebook friendship (it was sent after evidence and briefing were submitted, implying Carroll’s desire to influence Judge Bitney’s decision, and Judge Bitney accepted it, gaining access to off-the-record facts relevant to the dispute); the volume of Carroll’s posts and the likelihood Judge Bitney viewed these posts and comments; the content of the Facebook activity as it related to the nature of the pending proceeding (Carroll had essentially 25 more days to portray herself in the best possible light, through her Facebook access to the judge); and Judge Bitney’s lack of disclosure (which deprived Miller of an opportunity to refute what Carroll was posting and sharing).

The court observed that while it was not determining the “general propriety” of judicial use of social media, it did caution that “judges should recognize that online interactions, like real-world interactions, must be treated with a degree of care.” In her concurring opinion, Justice Annette Ziegler urged even more vigilance, reminding judges that their social media use “may expose both the judge and the judiciary as a whole to an appearance of bias or impropriety.”

Using social media platforms like Twitter can be a tremendous positive for judges to demystify the judiciary, display their humanity, and remove distance from the communities they serve. And with judges elected in 39 states, Twitter and other platforms are invaluable tools for raising visibility, building awareness, and leveraging the support of key influencers and opinion leaders. At the same time, however, judges must be mindful of the power, specific features, and limitations of Twitter, as well as the fact that the ethical restrictions applicable to every other means of communication are equally applicable to social media. To prevent recusal, jurists must carefully consider not just what they themselves post or tweet, but also how they react to the tweets and posts of others—as well as who they follow. Whether crafting a 40-page opinion or a 140-character tweet, judges should always be judicious.

Endnotes

1. Ying Lin, 10 Twitter Statistics Every Marketer Should Know in 2021, Oberlo (Jan. 25, 2021), https://www.oberlo.com/blog/twitter-statistics.

2. See, e.g., Hon. Stephen A. Dillard & Hon. Bridget McCormack, The Robed Tweeter: Two Judges’ Views on Public Engagement, 20 J. Appellate Practice & Access 2 (Fall 2019); Hon. John G. Browning, The Judge as Digital Citizen: Pros, Cons, and Ethical Limitations on Judicial Use of New Media, 8 Faulkner L. Rev. 131 (2016–2017).

3. Cynthia Gray, Social Media Posts by Judges on Controversial Issues, 43 Jud. Conduct Rep. No. 1, Spring 2021, at 2.

4. State v. Thomas, 376 P.3d 184 (New Mexico 2016).

5. ABA Formal Op. 462, Judge’s Use of Electronic Social Networking Media (Feb. 21, 2013); Mass. Advisory Op. 2016-1; Cal. Expedited Op. 2021-42.

6. 400 S.W. 200 (Tex. Ct. App. 2013).

7. Docket No. 15-0001 (Special Ct. of Rev. of Tex. Sept. 30, 2015).

8. Texas Ethics Commission v. Michael Quinn Sullivan, 2015 WL 6759306 (Tex. App.–Fort Worth 2015, petition denied).

9. United States v. Sierra Pac. Indus., 862 F. 3d 1157 (9th Cir. 2017).