Watch Your Mouth, Your Honor: Lessons for Judges on Social Media

Judges across the country are getting more comfortable using social media — sometimes a little too comfortable.

Maintaining a public presence online can be a great thing for judges who want to build trust with the community, legal technology experts said. But as more jurists dive into the world of social networking, court-watchers are seeing a growing number of ethically questionable posts.

Some judicial behavior once ruled unacceptable is starting to be OK. A Florida appellate decisionlast week found a judge may add an attorney as a Facebook friend, marking a break with previous ethics guidance that made Florida one of the country’s most conservative jurisdictions for judges’ social media use.

“The court was very wise and basically said, ‘Technology is changing. Everybody’s on social media,’” said Nicole Black, a Rochester, New York, attorney and legal technology evangelist at software company MyCase. She added judges need to ensure they appear impartial, especially on cases before them.

Knowing how to draw the line can be tricky. Legal groups are stepping up to offer new guidance for judges wondering how best to use social media, including reports from the National Center for State Courts, which will make judicial social media use the central topic of its annual National College on Judicial Conduct and Ethics in October.

The American Bar Association this year published “Legal Ethics and Social Media: A Practitioner’s Handbook,” authored by University of Miami law professor Jan Jacobowitz and Dallas attorney John Browning of Passman & Jones.

“Initially, the judiciary and many lawyers as well just decided they were going to stay away from social media, that that was the safest approach,” Jacobowitz said. “Now, social media’s ubiquitous. It’s pervaded the whole practice of law, so more and more people are trying to participate in it before they totally understand it and then they’re getting in trouble.”

Here are some of the judicial social media posts that have gone viral for the wrong reasons this summer:

Patriotic or partisan? Ohio Supreme Court Justice Bill O’Neill excoriated the Cleveland Browns last week in a Facebook post, calling the players who knelt during the national anthem “draft dodging millionaire athletes” who disrespected veterans like him.

O’Neill is “obviously someone with very deeply held patriotic feelings, and he chose to express them on Facebook,” Browning said. “It brings up kind of a natural question that I’ve looked at in a number of articles: Can a judge be what I would call a ‘digital citizen’ and exercise his or her First Amendment rights online, the way any of us might, or should a judge be — no pun intended — more judicious about his or her online comments?”

Browning thinks judges should look to prolific tweeter and Texas Supreme Court Justice Don Willett as a guide.

“He expresses patriotism but doesn’t go beyond and veer off into partisan politics,” Browning said. “He expresses a fair amount of humor, which I think his Twitter followers appreciate, but … you’re not going to go on Twitter and find him discussing a pending case or counsel appearing before him.”

‘Snowflakes’ and ‘nut cases’: A Georgia magistrate judge resigned this month after taking heat for a Facebook post calling those who protested Confederate monuments “nut cases” and “snowflakes who have no concept of history.”

The chief magistrate said Judge James Hinkle’s “statements on social media have disrupted the mission of this court, which is to provide justice for all.” Those types of disruptive posts seem to be more frequent since the 2016 presidential election, Black said.

“There’s so many things that are happening that are contentious that everybody is feeling impassioned,” she said. “And because they’re so impassioned, they sometimes post things without thinking. … [But] the internet is forever. It doesn’t disappear, and they need to think twice.”

‘Despicable flag’: In another controversy driven by Confederate symbols, a newly installed Clarksdale, Mississippi, municipal judge ordered court officials last month to remove the state flag from his courtroom because it contains the Confederate battle emblem.

“It was such a great feeling to see the police officer drag the despicable flag from the courtroom during open court,” posted Judge Carlos Moore, the first black judge in the city, on Facebook. “Great first day!”

While judges have the prerogative to set courtroom rules, Browning said the Facebook post took the decision one step further in a way that might raise eyebrows.

Spouses’ views: A federal judge does not have to recuse himself from a case involving anti-abortion activists because his wife posted on social media about her support for Planned Parenthood, a San Francisco court ruled in June.

“No thoughtful or well-informed person would simply assume that one spouse’s views should always be ascribed or attributed to the other,” the court ruled, keeping U.S. District Judge William Orrick III on the case.

Judicial nominees: John Bush, now a judge for the U.S. Court of Appeals for the Sixth Circuit, drummed up controversy at his confirmation hearing last month over political blog posts he wrote as a lawyer. His posts contained what some found to be inflammatory conservative opinions about gay rights and abortion.

Browning, who is a judicial nominee himself, said he doesn’t share his political thoughts online. Other attorneys who aim to don robes one day might want to be similarly careful, he warned.

“It can be very dangerous for judicial candidates to go and share so much on social media,” he said. “There are judges who have gotten into trouble for even something that they thought was fairly well-intentioned: for example, clicking ‘like’ on someone else’s comment.”

Facebook comments: A judge in Travis County, Texas, drew criticism from the defense bar for a comment she made on a nonlawyer friend’s Facebook status about being home with a cold.

“I’ve had the worst cold but instead of staying home I’m being tortured by an attorney in a trial,” Judge Nancy Hohengarten wrote. “So, I’m actually jealous of you!”

Judges and attorneys need to remember that social media posts are not viewed the same way as offhand remarks made during a conversation at a restaurant or on the phone with a friend, Jacobowitz said.

When Jacobowitz was a trial attorney, “lawyers could be upset midday in a trial, and at lunchtime, be blowing off some steam about a judge to another lawyer in their firm, and it would never go any further than that,” she said. “But that same venting, when it’s put on social media, becomes problematic. That’s when I think individuals are not entirely aware.”

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