The judge as digital citizen: pros, cons, and ethical limitations on judicial use of new media.

• Author: Browning, John G.
• Position: Symposium: The Role of the Judge in the Anglo-American Tradition

1. INTRODUCTION

   We live in an increasingly wired world in which daily existence (for the roughly three-quarters of the population with one or more social networking profiles) is a dizzying blur of Facebook status updates (293,000 every minute), tweets (a billion processed every 48 hours), YouTube video uploads (over 400 hours of footage every minute), and the like. (1) Over 1.5 billion users worldwide are on Facebook, with other social networking sites and applications, like Instagram and Snapchat, scrambling mightily to catch up. (2) People are living more and more of their lives online and sharing more of themselves than ever before; many, in fact, would regard this as over-sharing. Not surprisingly, social media use by judges has grown as well. A national survey of judges by the Conference of Court Public Information Officers (CCPIO) showed that social media use among the judiciary grew from 40 percent in 2010 to 86 percent in 2013 -- illustrating that the judiciary is finally joining the public it serves where the public has chosen to congregate. (3) Yet, according to the CCPIO's 2014 survey, less than half (44.5 percent) of the responding judges agree that judges can use Facebook without ethical concerns. (4)

   Judges have long been criticized for being inaccessible and a source of mystery to the public they serve. One reason for the increased use of social media by judges may be the growing importance of these platforms in political races. With thirty-nine states using some form of election to select their trial judges, and thirty-nine states using some form of election to select their appellate court judges, use of social networking platforms as a political tool in the United States has become necessary to professional survival. (5) In addition, as learned observer Texas Supreme Court Justice Don Willett (the "Tweeter Laureate" of Texas) noted, "harnessing technology is indispensable to openness" and is "another fruitful way for the judiciary to engage citizens." (6) The American Bar Association ("ABA") agrees. (7) In its Formal Opinion

   462, issued in 2013, the ABA approved of judges' social media use (including "friending" attorneys) and called it "a valuable tool for public outreach." (8)

   Yet, even as more and more judges assume roles as digital citizens, there is a persistent need for guidance for judges on the ethical boundary lines of social media use. At least sixteen states have either issued formal judicial ethics opinions or decided cases on this topic, and the number continues to grow--as does the number of judges facing disciplinary issues over social media use. (9) Most of these ethics bodies, such as those in New York and Ohio, have concluded that it is generally permissible for judges to have a social networking presence and to connect online with attorneys as long as they are careful to avoid the appearance of impropriety, avoid ex parte communications, and otherwise comply with applicable ethical rules. (10) Such jurisdictions are quick to remind us that interactions involving judges via social media must be evaluated in the same way as other interactions employing more traditional avenues of communication. (11) Avoiding ex parte communications or the implications of special influence is just as critical in cyberspace as it is on the golf course, at a restaurant, or in any other setting. However, in the most restrictive states, like Florida and California, judges cannot be "friends" with attorneys appearing before them. (12)

   Punishing judges for reaching out to and connecting on social media with the community they serve is not the answer; rather, the answer is to provide education and guidance to judges for their role as digital citizens--particularly as we struggle to apply existing rules of judicial ethics to scenarios involving technology that was not envisioned when the rules were created. This article will illustrate this need for guidance by looking at three case studies of judges as digital citizens: Judge Olu Stevens of Kentucky, U.S. District Judge Richard Kopf of Nebraska, and Judge Michelle Slaughter of Texas. Each of these jurists sought to assume the mantle of a "digital citizen"--Judge Stevens by taking to Facebook to address the racial divide in issues impacting his court and the criminal justice system as a whole, Judge Kopf by using a blog to shed light on the role of a judge in society, and Judge Slaughter by using Facebook to reach out to and inform the community about the court's operations. Each of these examples had lofty aspirations, were met with controversy and actual or threatened disciplinary action, and achieved varying degrees of success (or at least notoriety). Further, each of these examples has lessons to impart. Before moving on to these case studies, however, two recent examples of the tension between technology and judicial ethics--ripped from the headlines in true "Law and Order" fashion--merit discussion.

   In late July 2016, following a series of high-profile shootings and attacks on law enforcement personnel nationwide, a Texas judge went on Facebook with a declaration that he planned to ban plea bargains in cases involving assaults and threats to police officers. (13) Judge Kerry Neves of the Tenth Judicial District Court in Galveston, Texas, posted "I may only be one person, one judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers." (14) Judge Neves followed up his post with a July 18, 2016, formal order, stipulating, among other things, that an officer involved in the case would have to agree to a plea deal for Judge Neves to consider it, and the defendant would have to write a heartfelt apology to the officer and read it in court. (15) The Facebook post received widespread attention and was shared more than 11,000 times. (16) And while Galveston County District Attorney Jack Roady described the order as "unusual," he felt that it would not serve as a basis to disqualify the judge "as long as he's willing to look at the facts of each case and consider the full range of punishment." (17)

   John Convery, president of the Texas Criminal Defense Lawyers Association, vehemently disagreed, calling the order "shocking" and "a breach of impartiality and basic fairness." (18) Convery expects that defense attorneys will respond by filing recusal motions for any cases involving police officers in Judge Neves' court. (19) Therein lies part of the ethical quandary for Judge Neves' action. Had he simply issued his order--something he has broad discretion under Texas law to do--the media attention would likely have been minimal or nonexistent, and no debate over judicial ethics would have taken place. Instead, the judge posted a comment on Facebook about his impending order--perhaps for the political benefit of appealing to the "law and order" vote or perhaps out of a genuine desire to reach out and inform the community he serves. In making such a pro-law-enforcement comment, Judge Neves may very well have given reasonable observers cause to question his impartiality. Whether in cases of alleged excessive force or even mundane criminal and civil matters in which a police officer may be testifying, does Judge Neves' Facebook post signal an intent to accord different weight to the testimony from members of law enforcement? And even in the absence of actual bias, does this post create at least the appearance of impropriety?

   Another look at the ethical concerns for judges using social media came in late June 2016 with the New Mexico Supreme Court's decision in State v. Thomas. (20) In that case, the court reversed a murder conviction because an expert witness for the prosecution testified via Skype. (21) The court held that this violated the defendant's Sixth Amendment rights under the Confrontation Clause. (22) Because the court decided the case on the Confrontation Clause issue, it did not need to reach the other grounds for appeal --that the trial court judge made certain comments on Facebook about the case and that these comments demonstrated judicial bias. (23) While the court did not directly address this claim, it did take advantage of the opportunity to opine about judicial use of social media, particularly in the context of judicial election campaigns. (24) While the court found nothing wrong with judicial use of social media overall, it warned that certain conduct and activity "can easily be misconstrued and create an appearance of impropriety." (25) The court warned that judges who are candidates should "post no personal messages" other than a statement of qualifications, "should allow no posting of public comments," and "should engage in no dialogue." (26) Judges are also cautioned to regard all social media postings as public communications and not to be lulled into complacency by reliance on privacy settings. (27)

   Putting these restrictions aside, what about the postings by the trial judge that were the source of controversy? The first, made during trial, stated "I am on the third day of presiding over my 'first' first-degree murder trial as a judge." (28) The second, posted after the jury's verdict of guilty--but prior to the sentencing--said, "In the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch. Justice was served. Thank you for your prayers." (29)

   While the first statement, with its matter-of-fact reporting of the judge's day, should not present any ethical issue, the second post is more problematic. Besides a strictly factual statement about the trial's outcome, the second statement includes an opinion--"Justice was served." (30) Given that the timing of the post was pre-sentencing, it is concerning from an ethical standpoint to have the judge sharing his thoughts or feelings on the verdict, particularly when he must still preside over the sentencing phase and potential post-trial motions as well. As the Code of...