California Opinion 2021-42 Provides Advice for Judges Commenting on Law Related Topics
The California Supreme Court Committee on Judicial Ethics Opinions (“Committee”) issued Expedited Opinion 2021-42 yesterday to provide additional guidance to judges who want to make statements on Facebook concerning “legislation related to the law, the legal system, and the administration of justice.” The opinion was posted in response to an inquiry and expands on earlier advice provided to judges in 2018.
The Committee acknowledges both the pervasive nature of social media and a judge’s traditional rights to speak on law-related topics. The Committee appreciates that more judges are using social media and finds the participation to support the notion that judges should not be isolated from their communities, but rather should be engaged and socially aware.
The Committee reinforces its 2018 conclusion that the traditional judicial canons govern the use of social media; however, carefully distinguishes the use of a social media platform from a physical forum to explore additional considerations. The overarching concern for judges is to avoid any statements or online activity that calls into question the impartiality of the judiciary—a priority in the judicial canons. (See some of our prior coverage here.)
The Committee highlights the fact that online conduct is inherently public and thus a judge should assume that any statements posted will reach the widest possible audience regardless of whatever privacy restrictions a judge attempts to apply. This suggestion stems from the fact that technology is constantly evolving and it is difficult to remain up to date with privacy features and sharing capabilities of various site.
The Committee also discusses the fact that there is generally not a bright line distinction between a statement that is defined as permissibly law related and one that crosses the line into prohibited judicial political commentary. The Committee suggests that statements that pertain to administrative issues dealing with the courts are generally safe harbor as opposed to statements at “the more substantive end of the policy spectrum.”
Perhaps most importantly, the Committee advises judges to monitor their own social media and engage in a two-step process—First, carefully evaluate that their statements align with the judicial canons before posting; second, monitor reactions to their posts so that if comments “devolve into discussions undermining the judges impartiality or demeaning the judicial office” then best efforts can be employed to delete those posts. Additionally, if a social media site by its nature suggests bias or impropriety, then a judge may need to entirely abandon the site.
The two step process suggested for judges, sans the judicial canons, is terrific advice for anyone, especially lawyers—think before you post!
