Judges, Social Media, And Bad Choices

Unfortunately, the internet is forever -- and it’s not particularly forgiving.

In the political arena, social media has taken center stage as of late, whether it’s the president’s unpredictable and often contradictory early morning tweets or his son’s recent release of damning emails on Twitter. This trend in political discourse offers further evidence of the utility and popularity of using social media as a tool to easily and quickly spread your message, whatever that might be.

But the convenience of the immediacy and reach of social media is often tempered by its permanency. After all, a single tweet or Facebook post can have unintended and long-lasting effects. Unfortunately, that’s something people often forget in the heat of the moment, resulting in regrettable and irreversible mistakes.

This is a lesson often learned the hard way by judges, especially as the number of judges interacting online on various social media platforms has increased over time. For a number of years now, I’ve tracked various examples of judicial missteps online and sometimes find myself amazed that even judges fall into the trap of engaging in unfiltered online interaction.

For example, most recently it was reported that a Texas judge may face a judicial grievance after posting the following comment to a Facebook friend’s post: “I’ve had the worst cold but instead of staying home I’m being tortured by an attorney in a trial. So, I’m actually jealous of you!” Not surprisingly, members of the criminal defense bar took notice of the Facebook comment and the attorney who was on trial in her court at the time the comment was made is asserting that it was an indication that the judge lacked impartiality.

Similarly, in another case, the Supreme Court of New Mexico considered whether social media postings by a district court judge exhibited judicial bias. In State v. Thomas, No. 34,042, the defendant claimed bias where the judge
posted comments to his election campaign Facebook page about his role in a case and his opinion of its outcome.

In yet another case, a California judge recently faced a judicial disciplinary proceeding arising from his online activities. The most interesting allegation concerned the judge’s posts to the North Orange County Bar Association’s Facebook page relating to a judicial race wherein he indicated his support of a colleague. He posted the following in relation to his colleague’s opponent: “[She] has sex with defense lawyer whike [sic] shw [sic] is DA on his cases and nobody cares. Interesting politics.” The State of California Commission on Judicial Performance determined that the statement was made with reckless disregard for the truth, resulting in the public admonishment of the judge.

Twitter posts were at issue in another judicial disciplinary matter arising in Massachusetts. In CJE Opinion No. 2016-09, the ethics committee considered a number of allegations, including the claim that the judge posted to Twitter “excerpts from an examination in which a defendant used profanity when addressing the judge and another reporting that a defendant threw bottles of urine and feces at a judge following sentencing.” The ethics committee concluded that those tweets were improper since they detracted from “the dignity of the judiciary and the court system.”

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I’ve always been a proponent of judges using social media. After all, judges are people, too, and to prohibit them from interacting online in 2017 seems to be both unreasonable and unfair. But judges are only human, and like everyone else, they sometimes act rashly, posting something on social media that they later regret.

Unfortunately, the internet is forever — and it’s not particularly forgiving. Lawyers — and even judges — can fall victim to the lure of the immediacy of social media and interact online in ways that can later come back to haunt them.

Whether you’re a lawyer or judge, in order to avoid falling into this trap, make sure you fully understand the mechanisms of the social media platforms you choose to interact on and familiarize yourself with your jurisdiction’s ethical obligations.

And always remember that the online world is simply an extension of the offline one — except your actions are often recorded and saved in perpetuity. So as a rule of thumb, don’t do anything online that you wouldn’t do in a room full of people. Never forget that the medium doesn’t change the message — or its ramifications — and act accordingly.


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Niki BlackNicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter @nikiblack and she can be reached at niki.black@mycase.com.