Two Florida appellate courts have reviewed a judge’s participation in Facebook and the need for recusal, and reached polar conclusions. In a 2012 case, the Fourth District granted a petition for writ of prohibition to disqualify a trial judge who was “friends” on Facebook with the prosecutor handling the matter, relying on a Florida Code of Judicial Conduct Canon for its decision. In a summer of 2017 decision, another panel, the Third District, declined to issue such an order in a matter where the defense counsel was a “friend” of the judge, holding that mere “friend” status was not sufficient to conclude that the judge could not be impartial.
What about New Jersey? Should a judge be allowed to preside over a matter where he or she is a “friend” on Facebook of counsel, of the prosecutor? Is the appearance of impropriety under New Jersey’s Code of Judicial Conduct invoked? More importantly and more basically, should a judge participate in any way in social media, sharing information on the internet?
Individual cases of judges’ social media activity are within the jurisdiction of the Advisory Committee on Judicial Conduct, but more general guidance is required. The Supreme Court is providing it. Chief Justice Rabner has assembled a working group of lawyers and judges on Judges’ Use of Social Media, chaired by retired Justice Virginia Long.
The Long Committee is scheduled to make recommendations on these difficult issues by early next year. Without going into specifics, which we are ill-equipped to provide, we suggest that the committee might be usefully guided by the U.S. Supreme Court’s opinion last term in Packingham v. North Carolina. Invalidating as overbroad a state statute that prohibited convicted sex offenders from making any use of the internet for any purpose, Justice Kennedy’s opinion for a unanimous court laid down three general principles. First, it recognized that modern life is largely lived online. Second, it cautioned that technology was evolving so rapidly that the courts should be careful in declaring broad rules to govern it. Third, with that caveat, the court applied existing principles of First Amendment overbreadth to the new medium.
Although Packingham dealt specifically with sex offenders’ access to the internet, it provides broader guidance about how judges should approach the fast-evolving online world. In governing judges’ use of social media, Packingham counsels that absolute prohibitions may be too harsh. It requires considerations of the peculiarities of the new medium—for example, that a social media “friend” may be a very different and less intimate relation than an actual friendship. Most importantly, it counsels that the committee, taking the nature of the new medium into account, apply to social media use existing principles requiring judges to avoid actual or apparent conflicts of interest, as well as avoiding forms of self-promotion and political activity that might bring the courts into disrepute.
Editorial Board members Virginia Long and Edwin Stern recused from this editorial.