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July 29, 2021 Practice Points

CA Supreme Court Judicial Ethics Committee Issues Opinion on Social Media Posts

Being careful when posting material on social media is important for arbitrators as well as judges because arbitrators, like judges, issue binding decisions that can be challenged for bias or other cause based on what the arbitrator has written.

By Mitchell Marinello

On April 28, 2021, the California Supreme Court Committee on Judicial Ethics Opinions issued its advisory Expedited Opinion 2021-042 regarding social media posts by California State judges relating to the law, the legal system or the administration of justice. The opinion is interesting and may be instructive for arbitrators too.

The summary paragraph of the opinion captures the bottom line:

Judges may use social media to make statements relating to the law, the legal system, or the administration of justice, but should consider the following when posting or engaging with others online: (1) the same standards for judicial communications that apply in face-to-face settings apply with equal force to online statements and social media posts; (2) due to lack of control over the dissemination and permanence of online statements, judges must exercise caution and restraint and should assume the widest possible audience; (3) while statements concerning the law, the legal system, or the administration of justice are generally permissible, judges may not engage in prohibited social or political commentary on social media; and (4) judges must carefully evaluate what they intend to post and continually monitor their social media communications and posts to ensure public confidence in the integrity, independence, and impartiality of the judiciary.

The opinion also states:

When applied to online activities, it is permissible for judges to use social media to comment on legislation affecting the judiciary or legal system, so long as the commentary would not violate other canons or rules. (Canon 5D.) For example, statements must not: (1) undermine public confidence in the judiciary or suggest bias (canons 1, 2 & 2A); (2) relate to pending matters or potential pending matters (canon 2A); (3) stray into unlawful activities or demean the judicial office (canons 2A & 4A(2)); (4) constitute prohibited political activities (canon 5); (5) convey a special position of influence or use title to promote the interests of others (canon 2B(1) & (2); or (6) interfere with the performance of judicial duties (canons 3 & 4A(3)). ….
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Judges must therefore exercise caution to ensure that public statements directly relate to the law, the legal system, or the administration of justice rather than their personal social or political views. (Canon 5 [judges shall not engage in political activity inconsistent with the independence, integrity, or impartiality of the judiciary]3; Public Censure of Gianquinto, supra, pp. 33–34 [judge disciplined for statements relating to presidential policies, immigration, racial issues, and political views]; In re Kwan (Utah 2019) 443 P. 3d 1228, 1232, 1237–1239 [judge suspended for social media posts extensively criticizing a sitting president, among other violations]; N.Y. Advisory Com. on Jud. Ethics, Advisory Opinion No. 2019-120 [a judge may publicly support legislative and constitutional changes affecting court structure and operations but should use caution when expressing opinions on social media].)

Being careful when posting material on social media is important for arbitrators as well as judges because arbitrators, like judges, issue binding decisions that can be challenged for bias or other cause based on what the arbitrator has written. In addition, given the divisive and hyper-sensitive nature of political discussions in the current social media environment, posting controversial statements can lead to unwanted attention and even harassment from certain members of the audience. 

Mitchell Marinello is a partner at Novack and Macey LLP in Chicago, Illinois.


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