by 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.