Thursday, August 1, 2013

Judges May Tweet

 A recent opinion from Florida's Judicial Ethics Advisory Committee:

ISSUES

1. May a judge  running for re-election create a Twitter account with a privacy setting open so anyone — including lawyers — would be able to  follow the account?

ANSWER: Yes,  under specified circumstances.

2. May the judge’s campaign manager create and maintain the  Twitter account instead of the judge?

ANSWER: Yes.

FACTS

In anticipation of the inquiring judge’s  re-election campaign, the judge is considering using a Twitter account as one  of the judge’s campaign tools.  The  inquiring judge explains that “Twitter does not require the account holder to  select who follows the account holder’s ‘tweets.’  People just sign on and as the account holder  ‘tweets,’ the account holder’s followers receive it . . . Another aspect of  Twitter is the ability to create hashtags.  All Twitter users then can search for tweets  containing a specific hashtag . . . I could create a specific hashtag for my  campaign account.” 

     DISCUSSION

Prior JEAC opinions  on the subject of social media have cited Canon 2B of the Code of Judicial  Conduct as the applicable authority for restricting judicial use of social  media.  Canon 2B states in relevant part:  “A judge shall not lend the prestige of  judicial office to advance the private interests of the judge or others; nor  shall a judge convey or permit others to convey the impression that they are in  a special position to influence the judge.”   The relevant part of Canon 2B is underscored here for emphasis.  The analysis of the social media issue — specifically  Facebook — focused upon selecting “Facebook friends.”  The Committee opined that this function of  Facebook lent itself to the appearance of impropriety, to wit:  in choosing or declining to make someone — specifically  a lawyer who appears before the judge — a Facebook friend, a judge “could  convey or permit others to convey the impression that they [the Facebook  friends] are in a special position to influence the judge.”  Fla. JEAC Op. 2009-20.

Fla. JEAC Op.  2009-20 involved a judge inquiring in relation to the judge’s campaign plans.  The inquiring judge’s inquiry was submitted in  four parts:

  • Could  the inquiring judge post comments and other material on the judge’s social  network site?
  • Could  the inquiring judge add lawyers as “friends” on the site, and permit such  lawyers to add the judge as their “friend”?
  • Could  the inquiring judge’s election committee post material on the committee’s page if  the material did not otherwise violate the Code of Judicial Conduct?
  • Could  the inquiring judge’s election committee establish a social networking site  where lawyers — including those who might appear before the judge — could list  themselves as “fans” or supporters of the judge’s candidacy so long as no one  controls who is permitted to be listed as a supporter?

The Committee opined  that Canon 2B allows judicial participation in a “subject matter” forum, and that:

[In] order to fall  within the prohibition of Canon 2B . . . three elements must be present.

  • First,  the judge must establish the social networking page. 
  • Second,  the site must afford the judge the right to accept or reject contacts or  “friends” on the judge’s page, or denominate the judge as a “friend” on another  member’s page.
  • Third,  the identity of the “friends” or contacts selected by the judge, and the  judge’s having denominated himself or herself as a “friend” on another’s page,  then must be communicated to others.

 It is this  selection and communication process, the Committee believes, that violates  Canon 2B, because the judge, by so doing, conveys or permits others to convey  the impression that they are in a special position to influence the judge.

Based upon the  inquiring judge’s explanation of Twitter, Canon 2B would not preclude a judge  running for re-election from maintaining a Twitter account.  The inquiring judge seeks to use a Twitter  account for campaign “tweets” such as judicial philosophy, campaign slogans, and  blurbs about the candidate’s background.

Twitter has several  dimensions, however, in addition to those described in the judge’s inquiry.  The site’s primary objective is to enable an  account holder to share information to a population limited only by the number  of Twitter account holders.  Upon setting  up a Twitter account, users have the option to control who sees their updates. True,  as the inquiring judge states, users do not select followers. A user can,  however, block specific followers, preventing those blocked from seeing tweets  and other traffic on the user’s account. In addition, Twitter enables users to  mark tweets as “favorites,” to create lists of Twitter users and subscribe to  lists created by other users. 

If a user posts a tweet that is complimentary or  flattering to the inquiring judge, the judge could re-tweet it or mark it as a  “favorite.”  No matter how innocuous the  tweet, this could convey  or permit the tweeter to convey the impression that the tweeter is in a special  position to influence the judge. 

A judicial  Twitter account user could create a list of followers.  Those listed could be perceived to be in a  special position to influence the judicial candidate.  The inquiring judge could avoid this  appearance by not creating any lists of followers.  Still, if the inquiring judge were to appear  on another Twitter user’s list of followers, that follower could create the  impression of being in a special position to influence the judge.  Twitter has a “direct message” feature that  enables users to send messages directly to and receive messages directly from  their “followers.” 

Canon 5A,  particularly subsections 5A(1), (2) and (5), beg consideration: 

Extrajudicial  Activities in General.  A judge shall  conduct all of the judge’s extra­judicial activities so that they do not:

    (1)  cast reasonable doubt on the judge’s capacity to act impartially as a judge;
    (2)  undermine the judge’s independence, integrity, or impartiality;
  .  . . .
  (5)  lead to frequent disqualification of the judge.

A  judge’s Twitter account creates an avenue of opportunity for ex parte communication.  Assume a Twitter user is a party who has a  case assigned to a judge with a Twitter account.  The party could send the judge a tweet about the  case.  The judge unwittingly would receive  the tweet.  The only way to avoid  receiving the tweet would be if the judge knew the party’s Twitter account  name, and exercised Twitter’s blocking option when the judge set up the judge’s  Twitter account.  Thus, although  Twitter does not fall squarely on all fours of Fla. JEAC Op. 2009-20, it has features  which could prove problematic as a campaign tool for a judge running for  re-election.

The inquiring  judge’s second inquiry suggests as an alternative that the campaign manager or  another person connected with the judge’s re-election campaign set up the  Twitter account.  This is a more prudent  option in that it would eliminate the potential for ex parte communication. Favorite tweets would not be selected by  the judge, but by the campaign manager or committee. Caution should be applied,  however, if any follower lists are created in the account.

In sum, the inquiring judge will not be in  violation of Canon 2B if a Twitter account is created in that judge’s name.  The most sensible way to use Twitter as a  campaign tool would be for the judge’s campaign committee or manager to create  and maintain the account.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2013/08/a-recent-opinion-from-floridas-judicial-ethics-advisory-committee-issues-1-may-a-judge-running-for-re-election-create-a.html

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