Ethics Panel Says OK for Judge to Tweet — Within Limits

MA-CJE

A judicial ethics panel of the Massachusetts court system has determined that a judge may ethically maintain a Twitter account, but only within certain boundaries, and that a judge must be particularly cautious about selecting accounts to follow on Twitter.

The opinion from the Massachusetts Committee on Judicial Ethics does not identify the judge, but says that the judge maintains an active Twitter account and requested the committee’s advice concerning the judge’s continuing use of Twitter.

I was able to find only one Massachusetts state judge who maintains an active Twitter account, Superior Court Judge Shannon Frison. Her Twitter activity matches some of that described by the committee, such as “posts intended to reveal the existence of racism and implicit bias in the courts.” Judge Frison is president of the Massachusetts Black Judges Conference.

The committee’s opinion said that a judge’s obligations with regard to Twitter are, broadly speaking, no different than they would be when using any form of social media, although different types of social media pose distinct issues. The committee has previously issued opinions approving judges’ use of LinkedIn and Facebook, but as here, also within boundaries.

When using Twitter, the committee said, judges must comply with their obligations under the Code of Judicial Conduct.

As is also true with other forms of social media, each judge who uses Twitter must err on the side of caution and be aware that posts a judge-user considers neutral may nonetheless lead a reasonable person to question the judge’s impartiality.

That need for caution constrains what a judge may do on Twitter, the committee said, because the public may perceive a judge’s tweets as having the imprimatur of the courts.

In general, a public, unrestricted Twitter account of an identified judge may be used only for informational and educational purposes. If the judge so desires, the account also may reflect who the judge is as a person, as well as a judge, so long that the judge is careful not to implicitly or explicitly convey the judge’s opinions on pending or impending cases, political matters, or controversial or contested issues that may come before the courts. In addition, as to each piece of information revealed by the judge’s Twitter account (whether it is a tweet, a retweet, a “like,” the identity of an account that the judge follows, or the identity of an account that follows the judge) the judge must consider whether it would cause a reasonable person to question the judge’s impartiality.

The opinion went on to examine the judge’s actual tweets, discussing them according to the nature of their content or the categories they fell into.

  • Posts that share bar events and other news of general interest to the bar. Many of these posts, the committee found, are retweets from bar associations, law schools, courts, and other organizations and institutions “dedicated to maintaining high standards and professionalism among the bench and bar” and are therefore consistent with the code.
  • Posts that advise trial lawyers on trial practice. Purely educational posts are consistent with the code, provided “a reasonable person” would not perceive them “as demonstrating personal bias or improper comment on a pending case are not.” Further, “you must make certain that the posts do not reflect your reaction, whether complimentary or critical, to the in-court behavior of any readily identifiable person.”
  • Posts that report on selected cases decided by other courts. The judge’s tweets often report court decisions concerning racial discrimination, police misconduct or both. Reporting court decisions is consistent with the code, the committee said, “but only if the reports do not compromise or appear to compromise your impartiality.” That means that tweets or retweets must be from official or neutral sources and that the judge “must not retweet or link to case reports from persons or organizations with legal opinions that are clearly on one side of contested and highly-charged legal issues.”
  • Posts intended to reveal the existence of racism and implicit bias in the courts. “Caution is required when posting on controversial social or legal issues that may come before you in the course of your judicial duties,” the committee said. “Posts must serve a legitimate educational or informational purpose, and you must avoid posts that individually or as a pattern would lead a reasonable person to conclude you have a predisposition or bias that calls your impartiality into question.”
  • Posts that detract from the dignity of the judiciary and the court system. As examples of these tweets, the committee cited 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. “A reasonable person may perceive these posts to be needlessly offensive, or as making light of behavior by litigants who may have mental health problems,” the committee said. “Posts of this nature must be avoided.”
  • Posts that include photographs from the courtroom or lobby. In some instances, the judge has posted photographs that appear to show litigants, attorneys, court personnel and judges, the committee found, and some that included children. “Privacy and safety concerns require that you obtain consent from any person (or from a parent, in the case of a minor) whose image you post, unless you are retweeting a photo that was previously disseminated to the public by the press, an organization or association of judges or lawyers, or other similar source.”
  • Posts that reflect pride in the judge’s personal characteristics, background and achievements. These posts are consistent with the code, the committee found. “It is long-settled that a judge’s gender, race, or other personal characteristics are not grounds for a reasonable person to question the judge’s ability to interpret and apply the law fairly and impartially.”

In a final note, the opinion addresses the judge’s following of others on Twitter. The concern here, the committee said, is that the list of accounts the judge follows is publicly accessible to anyone. “Consequently, you must be cautious when selecting accounts to follow and avoid, for example, following the accounts of political candidates or parties.”

The full opinion can be read here.