To Post or Not To Post: Judges’ Social Media Predicament
Judges are meant to be unbiased and unaffected by outside influences, exposing their every tweet and Facebook post to scrutiny. On the other hand, freedom of speech cannot be completely snatched away from judicial authorities in the name of their duty towards the public. Since social media has become an inextricable part of news gathering, reporting, and public debate, and with political clashes on its verge, the demand for an ethical discussion of social media policy for judicial authorities at the international level is growing.
Is there a way for judges to use social media responsibly? India and the U.S. take different approaches. Photo: iStock.
By: Safiyat Naseem
On May 12, 2021, Georgia Court of Appeals Judge Stephen Dillard spoke about social media on the Texas Appellate Podcast. “If you’re a judge and you’re not on social media, that’s political malpractice,” he said. “I’m not saying you’ve got to be on Facebook actively and posting memes, but you probably ought to understand how Facebook generally works because people communicate in vastly different ways than they used to . . . If you don’t understand these dynamics and the different personalities of social media platforms, there are going to be cases that come before you that are going to turn on these things.”
The young people who compose “Gen-Z” are surrounded by technology and the internet. Their main source of connection with one another is social media; they are saturated with its use, cursing it yet starting every day with it. However, a judge ironically does not have such privilege to use social media freely, as even a single comment posted by a judge has major repercussions. Some may label it as a violation of the right to equality & freedom of speech whereas others may counter it with the fact that a single judge represents the public at large. However, the permanence of social media often outweighs its reach and immediacy.
Judicial Ethics & Social Media in the United States
In Minnesota, the judge in the Matter of Judge Matthew M. Quinn (2021) was tagged in several photos on Facebook, including one in which he was wearing a MAGA hat and piloting a boat with at least two Trump flags in the Trump Boat Parade. He included a screenshot of himself in the parade from the St. Cloud Times, along with the response, "Here we are!” The judge also liked several Trump pages and posts. The Board held that it does not prohibit judges from using social media because it recognizes that the platform’s function is to keep in touch with family and friends, and judges may feel isolated as a result of their jobs, especially during the COVID-19 pandemic. However, Facebook use must align with the judicial code of conduct.
Similarly, In the Matter of Jackson, Public admonishment (2021), a judge commented negatively on a report on Facebook about a Wisconsin pharmacist who was arrested for allegedly losing several doses of the COVID-19 vaccine by leaving them out at room temperature overnight. The Judicial Investigation Commission said that “the definition of a ‘public statement' concerning Facebook is when a judicial officer opens his or her private profile to the general public.” The commission found that although a formal discipline was not essential, the violations were serious enough to warrant a public admonishment. Accordingly, the commission publicly admonished the judge for her conduct.
The Supreme Court of California updated the California Code of Judicial Ethics in 2018 (Advisory Committee commentary following canons 2 and 2A) and 2020 (Advisory Committee commentary following canon 2B) to add explicit advice on internet conduct and social media. Judges were reminded about the accessibility and durability of electronic communications in the 2018 amendment, and that the same ethical canons that regulate judicial activity in traditional contexts also apply in virtual contexts. The 2020 amendment forbids court officers from using crowdsourcing platforms to further the interests of commercial corporations.
On April 28, 2021, the California Supreme Court’s Committee on Judicial Ethics Opinions (“CJEO”) stated that judges have every right to use social media but it should be presumed that everything will be accessible to the general public regardless of the precautions taken to limit access to it. CJEO concluded in an advisory opinion posted on the committee’s website that social media can be used to make law-related statements but its communications are subject to the same ethical principles as any other judicial activity.
Judges, for example, are barred from making any statements on social media that would jeopardize their impartiality, denigrate the judiciary, or constitute forbidden political commentary. While judges are not allowed to comment on specific cases, they are encouraged to participate in their communities to improve the judicial system. Judges may use social media to make legal declarations in the same way they do in traditional venues, as long as they carefully consider what they want to post and monitor responses to assure continued compliance.
In the case of United States v. Sierra Pacific Industries, Inc., a federal judge tweeted a link to a news report about the decision of the case with the headline “Sierra Pacific still liable for Moonlight Fire damages.” The defendants challenged the judge's decision to reject their motions to set aside the federal settlement, citing the judge's tweet as one of the issues on appeal. Defendants contended that the judge violated the Code of Conduct for United States Judges, which requires judges to “avoid impropriety and the appearance of impropriety in all activities” (Canon 2), prohibits ex parte communications (Canon 3A(4)), and states that a judge “should not make public comment on the merits of a matter pending or impending in any court” (Canon 3A(6)).
The United States Court of Appeals for the Ninth Circuit upheld the federal judge's decision to dismiss the defendants' motion to set aside the settlement in July 2017. However, acknowledging the gravity of the issues raised by the judge's tweet, the court stated: “This case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases, and we reiterate the importance of maintaining the appearance of propriety both on and off the bench.”
Other issues include whether judges should use their real names on social media, whether they should have personal or professional profiles (or both), and whether they should engage (through adding friends, tweeting, liking, and sharing) on these sites.
The Florida Supreme Court's Judicial Ethics Advisory Committee released an opinion in November 2009 advocating against "judicial friendships," stating that a judge cannot accept friend requests from lawyers who may appear before them, as such relationships give the impression to others that these legal “friends” are in a privileged position to influence the judge. However, The American Bar Association opinion of 2013 is in opposition to the Florida Advisory Committee’s opinion and acknowledges that "judicious usage" of electronic social media (referred to as ESM) can be a helpful instrument for public outreach.
While there is a set of rules on this matter in the United States, in India there are hardly any judges on social media.
Judicial Ethics & Social Media in India
The oft-repeated maxim that "justice should not only be done but also appear to be done" places the onus on the judge’s demeanor, overall communication, social etiquette and behavior, and signals that judges who participate in a public forum on social media should be aware that they are exposing themselves to abuse. In India, there’s indifference regarding this subject as it has not entered the realm of judicial debate and consideration – but there are well-defined and extensive rules & regulations abroad, especially in the United States.
Justice Sharad Arvind Bobde, India's Ex-Chief Justice, has spoken out against online judicial attacks, observing that "criticizing the judge rather than the decision is defamation." In the guise of freedom of expression, judges' reputations are being shattered. Judges are assigned to provide justice and to maintain the public's respect and confidence in court; the fundamental guarantee of a fair trial necessitates judicial independence, honesty, and impartiality. As a result, the judge must demonstrate and endorse these judicial ethics in both institutional and interpersonal contexts.
Furthermore, Article 50 of the Indian Constitution, which distinguishes the judiciary from the executive, has solidified the judiciary's integrity and independence, and a judge’s oath compels him to carry out his duties without fear, favor, affection, or malice. Favoritism towards friends or relatives is a characteristic of social misconduct. A judge should be impartial and neutral, and free of bias, according to the natural justice doctrine (nemo debet esse judex in propria causa). The delicate nature of a judge's responsibilities necessitates a certain level of detachment.
In Kameshwar v. State of Bihar, the Supreme Court of India held that “by the mere fact a person enters government service, he does not cease to be a citizen of India or disentitle himself to the rights conferred by this article.” The right to freedom of speech and expression guaranteed by the Indian constitution under Article 19(1)(a) is a fundamental right that is interpreted liberally. Under Part III of the Indian Constitution, Judges are granted basic rights and have the right to free speech and expression. Furthermore, in Abraham Kuruvilla v. S.C.T. Institute of Medical Sciences & Technology and Others, the Court stated that adequate and coherent evidence is necessary to prove bias. It is necessary to demonstrate not only the existence of a factual bias but also that there has been a miscarriage of justice due to it. After that, the acceptable probabilities and human behavior is taken into account to decide the issue.
The best course of action in light of the Chief Justice of India's admission that "we don't know what steps to take" is the 2019 Guidelines on the Use of Social Media by Judges from the United Nations Office on Drugs and Crime (UNODC). These guidelines state the benefits and drawbacks of using social media and include guidance and training frameworks that are compliant with international and regional judicial conduct and ethical principles.
The United Nations Economic and Social Council adopted the Bangalore Principles of Judicial Conduct in 2006, which defined the standards that judges must uphold, including freedom, impartiality, honesty, propriety, equality, competence, and diligence.
There are good reasons to be cautious when it comes to this subject. Judges should be unbiased and unaffected by outside influences, so every tweet and Facebook post will be scrutinized for any indication of prejudice or corruption. A judge who “friended” or “followed” someone on Twitter today might be standing in front of him tomorrow as a petitioner or an accuser.
However, closeness of relationship cannot be established solely based on Facebook friendship to justify a reasonable suspicion of bias. The mere allegation of a relationship with one party is inadequate to establish biases or favoritism. As a result, whether a judge has contact with or an interest in the matter over which he is presiding, the judge is not obligated to disqualify himself; but the judicial responsibility, dignity, impartiality, and independence limits the judicial officer's right to free speech and expression.
Moreover, judges writing on social media will be a huge boost to judicial accountability, providing the public with a clear picture and insights into judicial thought. It will be a welcomed change from the opacity with which judges conduct themselves.
Context is key in this regard. Balance is required between judicial independence and the belief of justice seekers in the judicial system. Also, scholars, judges, bar associations, and ethics committees must routinely assess whether additional ethical constraints and rules are required as long as these phenomena exist on social media.
If a judge's involvement on social media sites raises suspicions of bias in the minds of those who come before him or her, it can be a barrier to promoting judicial honesty and ethics. Thus, a solemn rejection of social media is impractical, but a selective, well-intentioned approach is the way to go.
Safiyat Naseem is a Final Year Law Student of Jamia Millia Islamia, New Delhi, India, graduating in 2021. She is an Editor of Lex Lexicon Journal and serves as a Reviewer at Indian Law Institute Law Review. Her research and prior publication focuses on Egregious Conditions of the Working Class amid Pandemic, incongruous Labor Laws and Human Rights.