Judges and Blogging: An Ethical Minefield (Special Credit)
A recent decision from the Ninth Circuit highlights the problem when a judge participates in social media.
A variety of social media channels (“SMCs”) such as Facebook, Twitter, LinkedIn, and Instagram afford users ample opportunities to engage with friends, colleagues, and even strangers. According to a November 2016 Report issued by Pew Research Center, more than 75% of Americans utilize one or more SMCs and an increasing number of Americans interact with at least one on a daily basis.
Some of those users are judges, and when they participate, ethical issues are bound to arise.
Indeed, both the California and Federal Judicial Canons can be implicated by a judge’s use of an SMC. While various advisory opinions issued in the last decade provide valuable guidance, the constant evolution of SMCs requires contemporaneous analysis of how a judge’s use of an SMC implicates his or her ethical obligations.
Last July, the Ninth Circuit issued an instructive opinion in a case it deemed “a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases.” United States v. Sierra Pacific Industries, 862 F.3d 1157, 1175-1176 (9th Cir. 2017). As reflected in Sierra Pacific, judges must remain abreast of the technologies with which they interact, the nature of the communications they enable, and how and when their social media activity can become publicly available. The court specifically noted “the importance of maintaining the appearance of propriety both on and off the bench.” Id.
Can Judges Ethically Participate in SMCs?
The answer is yes, but as noted below, the complete answer is “Yes, but be very careful.”
In commentary to Canon 4A, the California Code of Judicial Ethics states that “a judge should not become isolated from the community in which he or she lives.” In 2017, we must recognize that a judge’s “community exists and increasingly interacts in the realm of cyberspace.” California Judges Ass’n, Judicial Ethics Comm., Opinion 66 (“Cal. Opinion 66”), p. 4. But just as in-person interactions can sometimes run afoul of the Judicial Canons, so too can digital communications. “The same rules that govern a judge’s ability to socialize and communicate in person, on paper and over the telephone apply to the Internet.” Id.
In 2009, the federal government filed an action against various defendants arising out of the 2007 Moonlight Fire near Plumas National Forest. On the eve of trial, the parties reached a settlement agreement and, at the request of the parties, the district court entered judgment dismissing the case with prejudice. Following entry of judgment, the defendants filed a motion for relief from judgment under FRCP 60(d)(3). The district court denied the motion. (The moonlight fire litigation was the cover story in the April 2015 printed edition of California Lawyer.)
The same day the district court denied the motion, the United States Attorney’s Office for the Easter District of California (“USAO”) published eight tweets about the outcome of the case. The defendants alleged that the district court judge who presided over the Rule 60 motion controlled a Twitter account that “followed” the USAO on Twitter. The defendants also argued that the judge’s Twitter account “tweeted” a link to an allegedly inaccurate news article about the case titled “Sierra Pacific still liable for Moonlight Fire damages.” The Twitter account in question did not publicly indicate it was associated with the judge or the court.
The defendants appealed the denial of the Rule 60 motion and, among other things, argued the district court judge should be disqualified on the basis of his Twitter activity. The Ninth Circuit assessed whether the judge’s failure to recuse himself constituted plain error.
Judicial Canons to Consider Online
In Sierra Pacific, the court applied the Code of Conduct for United State Judges and specifically considered whether the trial judge violated the following Canons:
- Canon 2A, which prohibits conduct that would give “an appearance of impropriety”;
- Canon 3A(4), which prohibits ex parte communications; and,
- Canon 3A(6), which prohibits “public comment on the merits of a matter pending.”
Each of these Canons has a California corollary; respectively, California Code of Judicial Ethics Canons 2A, 3B(7), and 3B(9). Although this is not an exhaustive list of Judicial Canons conceivably implicated by a judge’s use of SMC, judges should be particularly mindful of these Canons when assessing their SMC activity.
Avoiding An Appearance of Impropriety
A judge must consider “the nature of the site” he or she interacts with when evaluating whether his or her use of an SMC could create an appearance of impropriety. Cal. Opinion 66, p. 7. This is particularly true where a “judge engages in the use of social media while also listing his or her affiliation with the court.” Comm. on Codes of Conduct Advisory Opinion No. 112 (“Fed. Opinion 112”), p. 222.
In Sierra Pacific, the defendants argued that an appearance of impropriety resulted from the judge “following” the USAO on Twitter. The court considered the nature of Twitter, observing that it was not primarily a vehicle for private, personal interactions, but for public broadcasts: “news organizations, celebrities, and even high-up government officials use Twitter as an official means of communication, with the message intended for wide audiences.” In light of this context, the judge merely following the USAO Twitter account did “not evidence a personal relationship.” Absent evidence of “personal” interactions between the judge and the USAO, the judge simply following a Twitter account did not give rise to an appearance of impropriety.
The defendants also argued that an appearance of impropriety resulted from the judge tweeting a link to an “erroneous” news article about the case. But “[e]ven assuming the judge owned or controlled the disputed Twitter account” the Twitter account did not publicly identify the judge, the court, or any member of the judiciary.
These findings underscore several important things.
First, the nature of Twitter was important. Whereas the court determined Twitter is utilized primarily “as an official means of communication” (862 F.3d at 1174), that may not be true of other SMCs such as Facebook or Instagram.
Relatedly, the court also considered how the USAO—the party the judge interacted with online—utilized social media. In this case, it was an organization sharing official announcements publicly. The outcome may have been different if the judge was “friends” with an individual attorney on Facebook, and that attorney’s Facebook profile included primarily photos of her family. This suggests that judges need to monitor the activity of any person or organization that they “follow” or “friend” on social media.
Finally, the judge’s activity online was anonymous. Because the Twitter profile did not identify the judge by name or refer to the court, the account’s activity was substantially less likely to give an appearance of impropriety.
Ex Parte Problems
“The potential that a judge may receive improper ex parte communications is much greater when the judge is interacting with attorneys who may appear in the judge’s court.” Cal. Opinion 66, p.10. But this does not mean that a judge should altogether avoid interacting with attorneys who may appear in his or her court. Rather, judges must simply “take care to avoid comments and interactions that may be interpreted as ex parte communications.” A.B.A. Formal Opinion 462, p.2.
In Sierra Pacific, the defendants argued that the judge received impermissible ex parte communications when he received the tweets published by the USAO in violation of Canon 3A(4). But, as noted, the USAO Twitter account in question published only public news items and “none of the challenged tweets were specifically directed from the U.S. Attorney to the judge.” Sierra Pacific, 862 F.3d at 1175. Citing the Committee on Codes of Conduct’s Advisory Opinion, the court explained that “concerns of improper communications arise in the context of the exchange of frequent messages, wall posts, or tweets between a judge or judicial employee and a friend on a social network who is also counsel in a case pending before the court.” Id.
Notably, the Federal and California Canons are not perfectly congruent with respect to the prohibition on ex parte communications. California Canon 3B(7) states that “a judge shall not independently investigate facts in a proceeding … [t]his prohibition extends to information available in all media, including electronic” While Federal Canon 3A(4) merely states that “a judge should not initiate, permit, or consider ex parte communications….”
Although Sierra Pacific instructs that a federal judge might permissibly follow an attorney appearing before him or her on Twitter–so long as there are not frequent personal messages between them–it would be imprudent for a California judge to do so. The act of “following” such an account may be construed as an independent investigation of available electronic media in violation of Canon 3B(7). If a California judge interacts with attorneys who may appear before him or her online, the judge should take prophylactic measures to insure those interactions cease whenever the attorney does appear before the judge.
California judges should also always disclose any online social networking relationship with counsel appearing before them. Cal. Opinion 66, p. 10. “The need for disclosure arises from the peculiar nature of online social networking sites, where evidence of the connection between the lawyer and the judge is widespread but the nature of the connection might not be readily apparent.” Id.
Reserving Public Commentary on Pending Cases
“[A]ny comments a judge makes on a social media networking site should be treated as public comments within the meaning of Canon 3B(9).” Cal. Opinion 66, p.5. A judge should never “assume that comments made on a social networking site are private.” Id. p.4. Judges should especially avoid online activity that “broadly hints at the likely outcome of a pending case, divulges confidential case processing procedures, or reveals non-public information about the status of jury deliberations.” Fed. Opinion 112, p.225
In Sierra Pacific, the defendant alleged that the judge impermissibly tweeted a link to an article about the case that painted defendants in an inaccurate light. The court considered it significant that the alleged public commentary included only a link to a public article, without any additional editorializing by the judge: “[t]he tweet consisted only of the title and link to a publicly available news article about the case in a local newspaper, without any further commentary.” But the court continued, “[e]ven if the judge’s choice of the particular article he posted and its allegedly inaccurate title could be construed as public commentary … not every violation of the Code of Conduct” requires recusal. 862 F.3d at 1175.
So while the Sierra Pacific court found persuasive that the judge shared the news article without comment, it stopped short of concluding such social media activity did not or could not “be construed as public commentary.”
Notwithstanding the ruling in Sierra Pacific, judges should avoid any social media posts about cases pending before them, including sharing articles about the cases. Moreover, though the judge in Sierra Pacific believed he was participating in Twitter anonymously, judges should also heed the cautionary advisory opinion and never “assume that comments made on a social networking site are private.” Cal. Opinion 66, p.4.
Participation in social media is an everyday fact of life for just about everyone. But for judges, such activity requires great sensitivity, great discretion, and great caution. Nothing less will preserve the court’s integrity and assure all who appear in a judicial forum that they are in a place where a neutral, unbiased official will dispense justice.
Andrew M. Massara is an associate at Long and Levit in San Francisco. He concentrates on the defense of lawyers and other professionals, employers, and businesses.