Judicial retweets ≠ endorsements.
That, in essence, is what the U.S. Court of Appeals for the Ninth Circuit ruled on Thursday in the first federal appellate court decision to address issues raised when jurists post to social media about cases that come before them.
“As a judge who tweeted, I never though[t] this was in serious question. But I appreciate the Ninth’s confirming that,” wrote former U.S. Magistrate Judge Paul Grewal on Twitter, in response to a news article about the decision. Grewal left the bench to head litigation at Facebook last year.
In the wake of the decision, The Recorder reached out to judicial Twitter users and legal experts to see what precautions judges should take to avoid the appearance of bias that can come with commenting publicly or forming links with litigating parties and lawyers via social media. Although judicial canons and codes of conduct caution against creating the appearance of impropriety, judges have largely been left to navigate how to engage in social media—or not—themselves.
“No one has said that it’s unethical for judges to use social media. You just want to make sure that when judges do it they understand the possible problems,” said U.S. District Senior Judge Jeremy Fogel of the Northern District of California, director of the Federal Judicial Center, the administrative, educational, and research arm of the federal judiciary.
Fogel said in a phone interview Thursday that he keeps a passive Twitter account that he uses essentially as a news feed. He said that swearing off social media altogether could create something of a technical literacy problem for the bench. “I think if you’re going to be a judge, particularly in an area where there’s a lot of technology cases, you want to have a familiarity with how things work,” he said.
“It’s a hot topic and we’re pretty careful to say, ‘Look if you want to have a passive Twitter account, that’s fine. But if you start tweeting it’s not only what you say, it’s how people respond to what you say,” Fogel said.
In the case underlying Thursday’s Ninth Circuit decision, lawyers for timber company Sierra Pacific Industries Inc. attempted to unwind a $122 million settlement reached with the federal government over claims stemming from a massive 2007 forest fire. They did so, in part, by pointing to a Twitter handle they claimed belonged to U.S. Senior Judge William Shubb in Sacramento, the judge overseeing the pact.
The Twitter account in question followed the account of the local U.S. Attorney’s Office handling the case and tweeted out a headline from a local business journal after the deal was approved headlined “Sierra Pacific still liable for Moonlight Fire damages.” The Ninth Circuit held that neither following the prosecutors’ office on Twitter nor tweeting out the headline post-settlement tweet warranted Shubb’s recusal.
Two jurists with prolific Twitter followings say they can’t remember tweeting out news stories about decisions that they’ve issued as the judge in the Sierra Pacific case did. “I can’t recall ever retweeting an article concerning one of my cases, but if I did, the opinion would have already been published,” wrote Chief Judge Stephen Dillard of Court of Appeals of Georgia, who has more than 10,000 followers on Twitter. “I would never tweet anything that could possibly be interpreted as a comment on a pending matter,” he wrote via Twitter direct message Friday.
Justice Don Willett of the Texas Supreme Court, who has more than 90,000 Twitter followers, said that he has “a few cardinal rules to avoid Twitter misfires and Facebook fumbles.”
“No discussing pending cases or matters that could come before me, and no partisan sharp elbows or bomb-throwing,” Willett wrote in an email Friday. Willett said that judges need to remain “judicious” and “stay above the political fray” on social media.
“I sometimes post links to news items, but I never add my personal two-cents worth on disputed legal issues or pending cases,” he wrote. Indeed, Willett linked on Twitter to a post of Thursday’s decision simply noting “9th Circuit decision today” and adding a scales-of-justice emoji.
Judge David Keenan, who was recently elected to the bench in Superior Court of King County, Washington, said that social media connections in some ways are analogous to what membership in civic organizations and social clubs would have been in the past. “Older judges get spun up about the mystery or social media,” he said. “It’s just one more club or group or committee that’s relevant for purposes of recusal.” Keenan, who has personal and professional Facebook pages as well as a Twitter handle with about 230 followers, said that a social media presence is a necessary tool for judges who like him have to campaign to maintain their seats. “I want to stay visible if I have to run another campaign,” he said.