The proliferation of social media poses special concerns for judges and others who are bound by codes of ethics, particularly in an era where so little is truly private, and electronic pages are easily preserved and recirculated. The hasty or improvident post that is quickly withdrawn may endure and be seen far longer and wider than the creator intended or imagined.
Both the Commission and the Advisory Committee on Judicial Ethics have addressed judicial interactions on such internet platforms as Facebook and personal or professional websites, and they have articulated a common standard. Regardless of the forum – whether in person, writing or electronic media – a judge is bound by the Rules Governing Judicial Conduct to observe high standards of conduct and act at all times in a manner that promotes public confidence in judicial independence, integrity and impartiality.
In Formal Opinion 462 (2013), “Judge’s Use of Electronic Social Networking Media,” the American Bar Association cautioned judges who use electronic social media to “assume that comments posted [on such forums] will not remain within the circle of the judge’s connections.”
In Opinion 08-176 (2008), the New York Advisory Committee on Judicial Ethics stated that if a judge otherwise complies with the Rules Governing Judicial Conduct, he or she may join or make use of an internet-based social network but should exercise an appropriate degree of discretion in doing so. A judge should also stay abreast of the features of any such network because new developments may have an impact upon his or her judicial responsibilities.
Opinion 11-125 (2011) delineates various categories of relationship – acquaintance, close social relationship, and close personal relationship – and the different tests to apply in determining the appropriate category and whether, based on the nature of the relationship, disclosure and/or recusal is required. It should be required reading for all judges.1
In Opinion 13-39 (2013), citing Opinions 08-176 and 11-125, the Advisory Committee specifically addressed whether a judge must recuse from a case involving his or her “Facebook friends.” The Committee stated that “the mere status of being a ‘Facebook friend,’ without more, is an insufficient basis to require recusal,” and that there is no appearance of impropriety “based solely on having previously ‘friended’ certain individuals who are now involved in some manner in a pending action.” However, the Committee noted that “interpersonal relationships are varied, fact-dependent, and unique to the individuals involved.” Decisions to recuse would therefore be based on the “the nature of [the judges’] specific relationships with particular individuals and their ethical obligations resulting from those relationships.” A “mere ‘acquaintance[ship]’” would not require recusal. A “close social relationship,” however would require a judge to, “at the very least, disclose the relationship either in writing or on the record, even if the judge believes he/she can be fair and impartial.” See Opinion 11-125. Disqualification is required if a judge has a “close personal relationship” with a Facebook friend. Id.
In Opinion 14-05 (2014), the Advisory Committee addressed whether it is permissible to host a court website on a social network, specifically responding to an inquiry about the court establishing a Facebook page. The opinion noted that “many aspects of a social network could prove problematic for a court website,” and particularly highlighted the fact that Facebook and other social networks sell and display third-party advertisements without consulting the user. It also noted that such “advertisements are typically dynamic, in that they may change to reflect a particular user’s browsing history, and interactive, in that they invite users to navigate away from the visited page and explore other goods and services.” This would create at least an appearance that the court was endorsing or directing visitors to commercial products and services, and that would undermine the independence, impartiality and dignity of the judiciary and the courts.
In 2016, the Commission publicly admonished a judge who, inter alia, made comments on her Facebook page that were critical of the prosecution in a case against a local town council candidate. Matter of Whitmarsh, 2017 Annual Report 266. The judge violated the rule that prohibits public comments about any proceeding pending or impending in any court within the United States or its territories, and in doing so referred to her judicial position, thus violating a separate rule prohibiting the use of the prestige of office to advance a private interest. Sections 100.3(B)(8), 100.2(C) of the Rules Governing Judicial Conduct
In 2018, the Commission publicly admonished a judge who entered a property without permission and took photos that he posted on Facebook with disparaging comments about the occupant, then failed to remove the Facebook posts promptly after assuring the Commission he would do so. Matter of Fisher, 2019 Annual Report 126.
A judge must be wary of inviting or engaging in social media dialogue with lawyers, litigants, witnesses or others who may be involved in pending litigation. Particularly where pseudonyms are used, the judge may not know that a person who responds to his/her posting may be involved in a case before the judge or a judicial colleague. At the very least, the appearance of impropriety may be created in such a circumstance, particularly if others who access the social media page are aware that the judge’s correspondent is also involved in a matter pending before the judge.
The internet and social media era is still relatively new, and while the number of social-media-related complaints is still relatively small, it is growing. It will only be a matter of time before the Commission is confronted with variations, such as a judge allegedly abusing the prestige of judicial office on a dating website, on food or fashion blogs, or in online consumer reviews of restaurants or retail stores. Every such complaint will be individually evaluated, and as it did in Whitmarsh and Fisher, the Commission will determine whether the judge’s conduct complied with or violated judicial ethics, regardless of the social forum or platform in which it occurred. The Commission strongly encourages judges to remember that social media posts are fraught with potential ethical concerns. Think carefully before posting, especially when engaged in a heated discussion, and consider that a moment of reflection and restraint now may avert aggravation and disciplinary consequences later.