Judicial conduct on social media and the internet generally poses a number of ethical issues. In 2018 and 2020, the Supreme Court amended the California Code of Judicial Ethics to include specific guidance regarding online activity and social media. The 2018 amendment cautioned judges regarding the accessibility and permanence of electronic communications and clarified that the same ethical canons that govern judicial conduct in traditional settings apply to virtual settings. The 2020 amendment prohibits judicial officers from engaging in conduct on crowd-sourcing websites that would lend judicial prestige to advance the interests of private businesses. The 2018 and 2020 amendments state:
2018 Amendment: Advisory Committee commentary following canons 2 and 2A
“A judge must exercise caution when engaging in any type of electronic communication, including communication by text or email, or when participating in online social networking sites or otherwise posting material on the Internet, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet. The same canons that govern a judge’s ability to socialize and communicate in person, on paper, or over the telephone apply to electronic communications, including use of the Internet and social networking sites. These canons include, but are not limited to, Canons 2B(2) (lending the prestige of judicial office), 3B(7) (ex parte communications), 3B(9) (public comment about pending* or impending proceedings*), 3E(2) (disclosure of information relevant to disqualification), and 4A (conducting extrajudicial activities to avoid casting doubt on the judge’s capacity to act impartially,* demeaning the judicial office, or frequent disqualification).”
2020 Amendment: Advisory Committee commentary following canon 2B
“If a judge posts on social networking sites such as Facebook or crowdsourced sites such as Yelp or TripAdvisor, the judge may not lend the prestige of judicial office to advance the pecuniary or personal interests of the judge or others. For example, a judge may not comment on, recommend, or criticize businesses, products, or services on such sites if it is reasonably likely that the judge can be identified as a judge.”
In addition, CJEO has published the following advisory opinions on ethical issues involving the use of social media or the internet:
CJEO Oral Advice Summary 2020-037 (2020), Judicial Obligations Relating to Social Media Comments by Appellate Court Staff
Appellate justices are required to exercise reasonable direction and control over the conduct of their staff to prevent them from making public comments that violate ethical canons. If a justice becomes aware that a staff member has posted an unethical comment on social media, the justice must, at a minimum, instruct the staff member to delete or remove the comment from public view and then follow up with the staff member to ensure they have done so. The justice may also need to instruct the staff member to correct or repudiate the comment on social media, particularly if the comment is demeaning or offensive, or otherwise undermines the dignity of the court.
CJEO Oral Advice Summary 2014-004 (2014), Use of a Testimonial Letter to Promote a National Bar Association Program
A judge may serve as a signatory to a testimonial letter recommending a national bar association program dedicated to the improvement of the law, the legal system, and the administrative of justice provided the letter is not used for fundraising purposes. If the letter is posted on the national bar association’s website, the letter should be made part of the website’s informational material and may not be posted on the area of the website that is devoted to solicitation and funding.
Other Authorities and Resources
The following authorities and resources provide additional guidance on judicial conduct when engaging in any online activity, including social media:
Commission on Judicial Performance
The commission’s compendium provides a summary of public decisions and private discipline for misconduct involving technology, organized by the following topics: (1) email or internet ex parte communications; (2) emails over computer court systems; (3) cell phone calls during court proceedings; (4) internet/social media postings; and (5) prohibited uses.
The commission has also issued the following decisions of note:
A former commissioner was disciplined for posts made to a public Facebook account that reflected bias against certain racial, religious, and immigrant groups, anti-same-sex marriage sentiment, and an animus toward the poor. The commissioner also took positions on controversial issues, opposed and praised certain presidential candidates, and disparaged a former President and the federal justice system. After the presiding judge ordered the commissioner to remove his Facebook posts, they were still publicly visible for several months. However, when the commissioner became aware that the posts were still public, he sought assistance to remove them and change his privacy settings.
A judge was publicly admonished for violating several ethical canons by posting a statement of a sexual nature about a candidate for judicial office on Facebook with knowing or reckless disregard for the truth of the statement. The judge was also admonished for remaining Facebook friends with attorneys that appeared before the judge and failing to disclose the friendships. The decision references California Judges Association Opinion 66, which advises that a judge should not maintain a social network relationship with an attorney who has a matter pending before the judge.
California Judges Association
CJA’s 2020 advisory opinion provides guidance to judges on using crowd-sourcing websites to “like,” recommend, or criticize private businesses. The opinion advises that the same ethical rules apply whether a judge is communicating in traditional or virtual environments. It cautions judges that using crowd-sourcing websites to “like” or recommend businesses impermissibly lends judicial prestige to advance those businesses’ interests if a viewer can determine the judge’s identity. The opinion advises judges using social media to educate themselves regarding a website’s privacy settings and only “like” or comment on crowd-sourcing websites when the judge remains anonymous. The opinion further advises that judges must never “like” offensive posts under any circumstances and must not “like” candidates for non-judicial office.
CJA’s 2010 advisory opinion provides an overview of social networking and describes some of the ethical concerns that arise when a judge participates in social networks. The opinion advises that a judge is not prohibited from engaging in social networking with lawyers who may appear before the judge, but should consider whether there is an impression that the attorney is in a special position to influence the judge or casts doubt on the judge’s ability to be impartial. The opinion provides examples of when a judge would be permitted or prohibited from engaging with an attorney who may appear before the judge and advises that a judge should not engage in social networking with an attorney who has an active case pending before the judge.
National Center for State Courts (NCSC), Center for Judicial Ethics
NCSC’s December 2020 article provides an update to its comprehensive two-part article regarding social media and judicial ethics, which was published in 2017 (described below). The update includes summaries of recent public decisions and private discipline imposed against judges for misconduct relating to the use of technology or social media. The update includes citations to judicial ethics advisory opinions, case law, and disciplinary decisions nationwide.
The first part of this article provides a general overview of the characteristics of and various types of social media. It analyzes and summarizes key judicial ethics issues related to the use of social media in the context of a judge’s judicial duties, including online relationships or friendships with attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases. The article cites applicable sections of state codes of judicial ethics, opinions from judicial ethics advisory bodies, and relevant case law throughout the United States.
The second part of this article covers restrictions on judges’ off-bench social media conduct, including commenting on legal and non-legal issues, providing legal advice, disclosing non-public information, charitable or political activities, and campaign conduct. The article also cites relevant codes of judicial ethics, judicial ethics advisory opinions, and relevant case law.