These days, nearly everyone is on social media. But what about judges? Do the ethical obligations unique to their role prevent them from participating on social media sites like Twitter? It’s an interesting question, and a number of jurisdictions have already addressed it. In November, Massachusetts joined their ranks when it issued CJE Opinion No. 2016-09 (http://www.mass.gov/courts/case-legal-res/ethics-opinions/judicial-ethics-opinions/cje-2016-09.html).
At issue was whether a judge’s use of Twitter violated any ethical obligations. At the outset, the Committee on Judicial Ethics noted that it had already issued opinions which outlined how and when judges may use Facebook and LinkedIn, but had not yet addressed the ethical issues encountered when a judge uses Twitter. The committee explained that the analytical framework remains the same regardless of the specific social media site at issue and that when judges use social media, it presents unique issues:
“(W)hen a judge is posting publicly as a judge, the judge must be exceptionally cautious. The reason is that the public may perceive the judge’s communications to have the imprimatur of the courts. … In general, a public, unrestricted Twitter account of an identified judge may be used only for informational and educational purposes.”
The committee acknowledged that judges are simply human, just like the rest of us. Accordingly, it concluded that judges may express personal opinions on Twitter, but their ability to do so is necessarily constrained by their judicial role:
“(T)he account … may reflect who the judge is as a person, as well as a judge, so long that the judge is careful not to implicitly or explicitly convey the judge’s opinions on pending or impending cases, political matters, or controversial or contested issues that may come before the courts. In addition, as to each piece of information revealed by the judge’s Twitter account (whether it is a tweet, a retweet, a ‘like,’ the identity of an account that the judge follows, or the identity of an account that follows the judge) the judge must consider whether it would cause a reasonable person to question the judge’s impartiality.”
The committee then turned to the specific type of tweets that the judge had posted to Twitter in the past in order to provide additional guidance as to the permissibility of each category of postings. The committee reached the following conclusions in regard to certain types of Twitter posts:
- Reporting court decisions on Twitter is permissible as long as the reports do not compromise or appear to compromise impartiality. Judges must avoid retweeting or linking to case reports from persons or organizations with legal opinions that are clearly on one side of contested and highly charged legal issues. Similarly, “mainstream media” stories on these issues should likewise be avoided, as “such reports may contain commentary or reaction favoring one point of view.”
- Judges must avoid posts that detract from the dignity of the judiciary and the court system, such as “excerpts from an examination in which a defendant used profanity when addressing the judge and another reporting that a defendant threw bottles of urine and feces at a judge following sentencing.”
- Posts by judges that include photographs of litigants, attorneys, court personnel and other judges generally require consent from any person whose image is posted.
Finally, the Committee addressed the propriety of judges following other Twitter accounts. Because the Twitter account of the judge in question was public, the committee concluded that special care must be taken by that judge when choosing who to follow on Twitter: “Because your Twitter account is publicly accessible … you must be cautious when selecting accounts to follow and avoid, for example, following the accounts of political candidates or parties.”
This opinion offers a common sense application of the ethical guidelines, and exhibits an understanding of Twitter and the implications of a judge using a public Twitter account. It is encouraging that the committee acknowledged that judges are people, too, and imposed reasonable limits on social media use in lieu of arbitrary, blanket restrictions. Let’s hope other jurisdictions that consider similar issues in the future follow suit.
Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at [email protected]