Can Judges Tweet? Judicial Ethics in the Social Media Age

fosterby Hon. Robert B. Foster

Voice of the Judiciary

The rise of social media has created questions for judges that would not have occurred to anyone ten or fifteen years ago. May a judge have a Facebook page? Must judges delete their Linked-In accounts after being appointed to the bench? Is it possible to use a Twitter account consistent with the Code of Judicial Conduct? These three questions are a modern twist on the dilemma judges have always faced: how does a judge maintain the integrity, independence, and impartiality of the judiciary without losing all contact with the world about which the judge is asked to pass judgment?

The answer to these questions starts with the Code, most recently revised effective January 1, 2016. The Committee on Judicial Ethics (CJE) is the SJC-appointed body charged with interpreting the Code and answering specific questions about the Code’s application. Much of its work consists of letter opinions, issued in response to judges’ questions. In 2016, the CJE issued letter opinions answering these three questions yes, no, and yes, but only under certain conditions that ensure that the judge acts online consistently with the Code.

The first letter opinion concerns judges’ use of Facebook. For the few people left who are unfamiliar with it, Facebook is an online social media platform. Participants create a page about themselves on which they can post news and personal information. Importantly, Facebook members “friend” other members, so that they can see their friends’ posts and their friends can see theirs, and can comment on or indicate they “like” others’ posts. In the letter opinion, the CJE set forth some of the provisions of the Code that use of Facebook implicates. These include Rule 1.2, requiring judges to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary” and to avoid even the appearance of impropriety; Rule 1.3, which bars the abuse of the judicial office to advance the personal or economic interests of the judge or others; Rule 2.3, barring bias, prejudice or harassment; Rule 2.4, requiring judges not to permit personal, financial, or political interests or relationships to influence or appear to influence their judgment; Rule 2.9 against ex parte communications; Rule 2.10 against judicial speech on pending matters; Rule 2.11 on disqualification; and Rule 4.1 prohibiting judges from participating in political and campaign activities. All these are swept up in Rule 3.1, “which provides that a judge must conduct all extrajudicial activities in a manner that does not interfere with Code principles and provisions.”

Applying these provisions, the CJE found that judges could use Facebook, even identifying themselves as judges, so long as they do not do things like comment on pending matters, make political or commercial endorsements or comments, do anything that looks like an ex parte communication or suggests that anyone is in a position to influence the judge, or post anything that conflicts with the dignity of judicial office. Moreover, a judge must not “friend” any attorney who might appear before the judge. In short, the CJE reminded judges that Facebook is public, and any comment, and even any “like” of another person’s post, is a public communication that must be made within the strictures of the Code.

The next letter opinion concerned a judge’s use of Linked In. Linked In is a kind of professional Facebook, a “business-oriented social networking site.” Applying the principles set forth in its Facebook letter opinion, the CJE stated that the Code allows the use of Linked In so long as the judge is “not . . . connected with any attorney who is reasonably likely to appear before the judge.” The judge must not only avoid connecting with such attorneys, but must also disconnect with any attorneys with whom the judge is currently connected.

The last of the three letter opinions concerns a judge’s use of Twitter. As the CJE quite cogently explains, Twitter is a social network that permits users to post “tweets” of up to 140 characters, plus images or videos. “Twitter is meant to be shared; users follow selected other users.” A user’s homepage includes a “feed” that displays tweets from the Twitter accounts the user is following. A user can post selected tweets from the feed, a practice known as “retweeting.” Importantly, “[u]nless the user indicates otherwise, the act of retweeting generally suggests that the user endorses the views expressed.” A user’s tweets and retweets show up on the feeds of the user’s followers, and are also publicly available to anyone who visits twitter.com.

The letter opinion addresses how a current judge uses Twitter. It begins by reiterating the Code provisions implicated by the use of social media that the CJE discussed in its Facebook opinion. It repeats that judges are not barred from using social media, so long as that use is consistent with the Code. It goes on to note, however, that use of Twitter raises some particular issues. The Twitter account in question identifies the user as a judge, and “when a judge is posting publicly as a judge, the judge must be exceptionally cautious” because “the public may perceive the judge’s communications to have the imprimatur of the courts.” Therefore, in general “a public, unrestricted Twitter account of an identified judge may be used only for informational and educational purposes.” Specifically, a judge may share upcoming and past bar events and news of general interest to the bar, report on case decisions of the SJC or other courts, and advise lawyers on trial practice. The judge must be careful, however, not to do so in ways that appear to compromise the judge’s impartiality or demonstrate a personal bias or opinion for or against a person or a political issue. The letter opinion also reminds judges that these considerations also apply to retweets, and to the list of other Twitter accounts that a judge follows, as all of these are public.

As the CJE recognizes, it does no good for a judge to withdraw completely from society. Judges must maintain contact with the world that they are asked to judge; they must have some understanding of the social circumstances of the people who appear before them. Thus, judges are entitled to have friends, to have conversations at parties, to attend public and social events. The caveat is that they must do so within the confines and requirements of the Code and in a way that does not call into question their fairness and impartiality or that of the judiciary. Social media in their various forms are an amplification of the direct social contacts and interactions of a judge. Social media make it possible for a judge to interact with friends over a far wider range than in person. The big difference is that these interactions are far more public than a conversation at a dinner party. The simple rule for judges who use social media is to keep this in mind and not to say anything on Facebook or Twitter that they could or would not say in any other public setting.

Hon. Robert B. Foster is an Associate Justice of the Massachusetts Land Court.  Before his 2011 appointment, he practiced with Rackemann, Sawyer & Brewster, P.C.  He is a graduate of Haverford College and Harvard Law School.

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Chatting With Jurors in Jury Rooms

Kaplan_Mitchellby Hon. Mitchell Kaplan

Voice of the Judiciary

Before I was appointed a judge, if someone had asked me to list the most interesting things that a trial judge does, I doubt that I would have included chatting with jurors after they have rendered their verdict. However, over the last seven years I have found those post-verdict conversations to be enlightening, reaffirming, and frequently entertaining.

In each county, Superior Court judges are assigned on a rotating basis, each week, to welcome the day’s pool of prospective jurors, as required by law.  See G.L. c. 234A, § 65.  Depending on the county in which you are sitting, your turn comes up every couple months.  Judges take different approaches in their greetings. Part of my approach is try to convince my audience, some of whom are usually skeptical, that most people find jury service an interesting and rewarding experience. I go on to say that when we (judges) speak to jurors who have been seated on juries after they have returned their verdicts, we find that sometimes they have made new friends, they have learned something more about our criminal or civil justice system, and they always feel that they have made an important contribution to their community.  I say this to encourage our potential jurors to serve, and also because I believe it is true.

While I have had the good fortune to speak to a great many juries over the past seven years, these are just personal observations and, therefore, only anecdotal.  After I receive a verdict (or declare a mistrial) and formally thank the jurors for their service, I always tell the jurors in open court that I would like to thank them in a less formal setting in the jury room.  I make it clear that this isn’t an order and they are free to go, but if they have time I hope they will stay a few moments.  I don’t think that any juror has ever left before my court officer escorted me to the jury room.  While some juries are polite, but clearly anxious to disperse and go on about their business, the majority of juries have questions they want to ask, suggestions they want to offer, or generally want to chat about their experience.  I think that juries that have “bonded” during their service are more likely to linger.

After explaining that I do not want to know anything about what jurors said to one another or the course of their deliberations, which I hope they will hold confidential (although having returned their verdict they are freed from any legal obligations not to speak to others), I ask if any juror has any question, comment or observations.  Sometimes that prompts a number of jurors to speak up and sometimes I have to prod with a few questions of my own before a conversation ensues.  Here are some general observations.

Jurors take their responsibilities very seriously–they truly understand that they have been the judges of the facts of the case. Obviously, the subject matter of cases varies.  Some cases are clearly more difficult to decide; some are more emotional; and in some the consequences of the verdict are clearly enormous. Frequently, jurors are physically exhausted at the end of their deliberations.  It is not uncommon to find jurors in tears or fighting them back.  I suspect sometimes that may be because a juror has been convinced to change his or her view of the evidence or a fact.  Sometimes, it is because they have had to make an emotionally difficult decision.

I believe that jurors take very seriously their oath to apply my instructions to the facts as they find them.  Personally, I don’t think that I have ever witnessed jury nullification.  To the contrary, I have had jurors in tears in a personal injury case because they had found for the defendant, even though the plaintiff was very sympathetic or had suffered a debilitating injury.  They had concluded that the defendant just was not negligent.  On a number of occasions in criminal cases, it has been clear that the jurors thought that the defendant was probably guilty of the crime, but the prosecution had not proven guilt beyond a reasonable doubt.  Conversely, jurors have found defendants guilty, but expressed concern over the potential length of the sentence.

Frequently, jurors ask me if there was any additional evidence that had been excluded from trial.  More often this comes up in criminal cases, but sometimes in civil cases as well.  I don’t have the sense that the jurors are angry that evidence was not presented, they just wish that they had more material on which to base their decisions.  I think that collectively juries are very good at figuring out where the missing pieces are in the chain of evidence or events.

A recurring comment is that jurors do not want the lawyers to repeat the same point, over and over.  Innumerable times juries have told me that they got it the first time, certainly the second time, and by the fifth time they really didn’t want to hear about it again. Indeed, some juries find the repetition condescending not convincing.  Often juries will point out that the trial bogged down over “stuff” that was not relevant to their decision making.  It was as if the lawyer was afraid to leave something out.  I think that jurors appreciate charts and graphs that make data understandable, although they will do their best to sort through materials themselves if they have to. In one case in which critical evidence was on a surveillance video, a technologically savvy juror displayed the video frame by frame during deliberations.  Juries tell me that they try to get past which lawyer they liked the best, but obviously they appreciate lawyers who make their job easier.

I think that even in an informal setting there is a tendency for jurors to tell judges what they think the judge would like to hear.  Nonetheless, when I ask, jurors overwhelming tell me that their jury service has been a rewarding experience and they would like to do it again—but not too soon (especially when the trial takes more than a week).

I truly believe that if lawyers, or the public, were flies on the wall when judges chatted with jurors after a trial, it would make them believe what I believe, that while jury trials may not be the perfect way to resolve disputed issues of fact, they are the best way so far devised.

Mitchell Kaplan is a justice of the Superior Court and currently sits on the Business Litigation Session of the court.  He was previously a partner at Choate, Hall, & Stewart and served as a law clerk to Hon. Joseph L. Tauro, USDC.


The Road to Race and Implicit Bias Eradication

Desmond_Kennethby Hon. Kenneth V. Desmond, Jr.

Voice of the Judiciary

Throughout the past several decades, State and Federal appellate courts have candidly acknowledged the implicit biases of litigants and jurors.  Although social science research has found that judges are just as susceptible to unconscious bias as the rest of the population, the paucity of case law acknowledging judicial bias underscores the need for introspection.  Since confronting subconscious attitudes and stereotypes is challenging for many, the process of eradicating the influence of race and implicit bias on the Massachusetts judicial system is likely to take many years.  Chinese philosopher Lao-Tzu said “the journey of a thousand miles begins with one step.”  With that in mind, the Trial Court recently took the first step of its “thousand mile journey” to eliminate the influence of implicit bias by establishing the Departmental Race and Implicit Bias Advisory Committee.

The Committee was formed in response to feedback from attendees of the September 2015 All Court Conference on Race and Implicit Bias.  According to Chief Justice Ralph Gants, the decision to hold the All Court Conference was prompted by recent events in Ferguson, New York, Baltimore, and Cleveland that “raised important questions about the intersection of race and justice in our country.”  The Supreme Judicial Court recognized the value of examining the court’s role in “addressing race as it affects the pursuit of justice,” and “resolved to open a dialogue among Massachusetts judges” to consider the way implicit bias impacts the Commonwealth’s courts.  The subsequent formation of the Committee was a way for the Trial Court to continue that dialogue at the departmental level.

In the most basic sense, implicit bias is “thoughts about other people you didn’t know you had.”  Consequently, it is often difficult for individuals who do not fall victim to the impact of certain biases to identify the ways they are manifested.  Within the Trial Court, however, implicit racial, cultural, gender and other biases have opportunities to exhibit themselves in myriad ways.

Implicit racial bias, for example, can manifest in the form of erroneous assumptions that a person of color is not a judge, attorney, or officer of the court.  Implicit racial bias may also explain the disparity between the number of non-Hispanic whites and persons of color given the opportunity to participate in Drug Court, which offers offenders an opportunity for rehabilitation instead of incarceration.  Indeed, while non-Hispanic whites in Massachusetts use illicit substances at slightly higher rates than members of racial and ethnic minorities, incarceration rates for distribution offenses that do not carry mandatory minimum sentences are six times higher for persons who identify as black.  Juveniles are not exempt from the subconscious biases that fuel these trends.  Of all the youths arrested for weapons offenses in 2010, white youths were arrested at approximately double the rate of black youths.  However, of all the youths that were held in custody for weapons offenses, black youths comprised 52% while white youths represented a mere 16%.

Implicit cultural biases can lead Trial Court staff members to erroneous conclusions about a constituent’s demeanor.  A judge or clerk interpreting a lack of eye contact as representative of disinterest may be less patient with a litigant who avoids eye contact than a judge or clerk who knows that in many cultures, eye contact is a sign of disrespect.  Implicit gender biases have the potential to impact the outcome of familial disputes, such as the distribution of assets in a divorce or the likelihood of a male obtaining a protective order from an abusive partner as compared to the chances of a female requesting one on the same basis.  One study found that 65% of transgender Massachusetts residents had experienced discrimination in an area of public accommodation.  Discriminatory, or even preferential treatment may also arise from implicit biases concerning sexual preference, age, weight, disability, and religion, among others.

By way of the Committee, the Trial Court seeks to create a system that embraces and understands all people regardless of their identity.  The Committee is comprised of Chief Justice Paula Carey and Court Administrator Harry Spence as well as one or more individuals (mostly judges) from each Trial Court Department who have been appointed by their respective chief justices.  Committee members are charged with initiating a dialogue about implicit bias within their department and encouraging others to get involved with the effort to help all Trial Court staff members recognize that an egalitarian judicial system is the only way to build and promote public confidence and trust that the Trial Court will administer justice impartially to everyone that it serves.

The Committee recognizes that the implicit associations we hold “do not necessarily align with our declared beliefs,” and seeks to implement checks and balances that give Trial court staff members pause before they make a decision.  Already, the Committee has created bench cards to be distributed all Trial Court justices and clerks that encourage them to engage in “more deliberative, effortful processing” when making a decision, and thereby discourage low-effort decision-making that relies on intuition informed by stereotypes or prejudice.

The Committee also understands that exposure to stigmatized group members “can help individuals negate stereotypes . . . and ‘unlearn’ the associations that underlie implicit bias.”  Accordingly, the Committee intends to identify and encourage the use of diverse recruiting resources, and advance staff members’ cultural awareness through workshops and other forms of training.  This fall, the Committee plans to introduce a resource bank on the Trial Court’s intranet to ensure that the materials distributed at these trainings are accessible to all.  To create a judicial system that is user-friendly for everyone, the Committee also plans to assess the experiences of Trial Court users through surveys and focus groups, and is considering the implementation of educational opportunities for pro se litigants who are struggling to comply with their legal obligations.

If you are interested in assessing your own implicit biases, Harvard University’s Project Implicit has free online tests available that allow you to assess subconscious preferences based on race, gender, and sexuality, among others.

Chief Justice Paula Carey recognizes that “issues related to race, bias and power are among the most difficult to confront, discuss and address since they are embedded in an organization’s structures and practices, they are often invisible to many, and they prompt defensive reactions.”  She believes that taking these issues on will be “a challenging journey but well worth the effort.”

Judge Kenneth V. Desmond, Jr. has served on the Massachusetts Judiciary for eleven years. He was appointed to the Massachusetts Superior Court in December 2012 and prior to that served on the Boston Municipal Court. He is a Trustee of the Flaschner Judicial Institute and Chair of the Trial Court’s Departmental Race and Implicit Bias Advisory Committee. Judge Desmond is a graduate of Tufts University and Boston College Law School.