Thursday, August 1, 2013
A recent opinion from Florida's Judicial Ethics Advisory Committee:
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?
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.