During a high profile criminal trial in Canada some years ago, the trial judge discovered that someone had created a fake Twitter account in his name. Reporters covering the trial began following the account. This starkly illustrates one of the risks of judges on social media.
In that case the judge said he was ‘flabbergasted’ upon finding out about the fake account after receiving notifications on his personal email address. He convened court in the absence of the jury and explained his concerns: ‘It’s very disconcerting because if anything is said during the [trial] attributed to me it is not the case. I have no such account and I want that to be clear.’
Another risk of judges engaging on social media is the perception that they are just ‘getting down with the kids’ and somehow not taking their job seriously. But judges are part of society and plenty of serious people engage in social media without being frivolous (at least not all the time).
In the United States, as I showed in my last post (Judges on Twitter – ‘They do it over there but we don’t do it here’ ), it is common for judges to tweet. One of the most prolific of them, Chief Justice Stephen Dillard, presiding judge of the Georgia Court of Appeals, has written academically about the benefits of doing so, in a common law system where judges reflect the communities they serve. Yet, as I explained in an earlier post, judges in our own jurisdiction are strongly discouraged, if not actually banned, from blogging and engaging on Twitter and other social media.
In America, at least in some States, judges are elected and for that reason may be able to justify having a public presence on social media. That’s not the case in most other common law jurisdictions and it’s to them that I now turn in this post.
Looking at the matter in Australia, Judge Judith Gibson of the District Court of New South Wales has written on the specific problem of ‘The impact upon judicial standing, and possible perceptions of bias, arising from judges using social media” in a paper entitled Should judges use social media? Even in 2013 when that was written – internet years are like dog years, such is the rate of change – she recognised that in Australia at least any question of a ban on social media would have been futile: ‘Too many courts and judges are already using social media. The better question would be what use is acceptable. What social media should they be able to use, and for what purpose?’
A second issue was what judges and courts should be allowed to say, if they did use social media. A third question was whether judges should be permitted to use social media in their private activities. (As we saw in the USA, where Justice Willett of the US Court of Appeals for the Fifth Circuit recently posted a picture of a freshly baked golden cornbread in the shape of Texas, this question has been answered with a resounding Yes.)
In considering these issues, Judge Gibson looked at the role of the judge in the common law system. ‘According to Blackstone’, she writes, ‘judges did not simply listen to lawyers; they played an active role in identifying social mores and reflecting these values in their decisions’.
This seems to me a crucial point. The idea that judges stand outside society, in some ethereal domain where they are unaffected by normal human appetites and anxieties, seems anachronistic now. That may have been the prevailing ethos fifty or sixty years ago, under the Kilmuir Rules, when the Lord Chancellor of the day made it clear that judges outside court should not speak unless spoken to, and probably not even then. But it hasn’t always been. And if judges are to fulfil their role of applying existing precedents to different situations, or laying down new precedents to address unforeseen circumstances, then they need to be part of the society for whose benefit they do so; they need to understand how it ticks. And as Judge Gibson says,
‘Judges who do not participate in social media will be unable to understand changing social
values, and unfamiliar with issues of concern to members of the community.’
According to AUT University Law Professor Warren Brookbanks, ‘some judges, particularly younger ones, have embraced social media with enthusiasm and regularly access social media platforms and engage online’. But he said that for some of them, understanding a tweet, how Facebook Messenger works and what Snapchat is presents a ‘generational challenge’, according to a recent news report in Stuff (Are NZ judges getting to grips with the 'generational challenge' of social media? 9 April 2018).
The article also quotes Chief District Court Judge Jan-Marie Doogue saying that younger judges were ‘very au fait’ with social media. She also pointed out that ‘retired Judge David Harvey, an expert in law and IT, had hosted a series of training sessions for judges on the topic of social media, which provided them with guidance about how to keep themselves safe online, including information about privacy and security settings.’
This demonstrates an awareness that judges need to know about social media, if only to enable them to deal with it in the courtroom – where it is often a source of evidence – as much as to make use of it (if they wish) to communicate with the public they serve.
The Canadian Centre for Court Technology set up something called the IntellAction Working Group (IWG) on Social Media and the Courts to explore the implications of the use of social media by judicial officers. They reported in 2015 that about 40% of state court judges were on social media, mostly Facebook, but that there were few specific guidelines dealing with the issue.
Existing ethical principles, published by the Canadian Judicial Council, require judges to uphold judicial independence, to conduct themselves with integrity and to avoid any activity or association that could reflect adversely on their impartiality. In the absence of any express rules, these principles give some idea of how judges should conduct themselves in their use of social media.
The British Columbia Code of Judicial Ethics expressly permits judges to participate in community activities, ‘it being recognised that a judge isolated from society is one who cannot keep in touch with its evolution’. That said, ‘judges should expect to be constantly scrutinised by the public’. This suggests, as one recent article on the Provincial Court of British Columbia website put it, ‘that judges using social media should be cautious about friending or following someone or liking something on social media in order to avoid creating an impression of bias’.
The most prolific judicial user of social media, according to the IWG report, is Judge Harvey Brownstone of the Ontario Court of Justice. He was active on Twitter (though seems to have stopped now) and has a Facebook page linked to his popular TV show, Family Matters (currently advertised as ‘The Only TV Show Hosted by a Real Sitting Judge!’). The IWG cites this as an example of a judge using social media ‘to promote public understanding of courts and laws’. In his case, though, he is also using the traditional media, via TV. In the UK we have Judge Rinder, who is not a real judge but is at least a practising barrister, as well as being a dab hand (or foot) on the dancefloor as a competitor on Strictly Come Dancing. (If only court proceedings could be this spectacular, one thought, watching his Quickstep and his Cha Cha Cha.)
‘Think of the optics’ is the advice given by another Canadian judge, Jamie K Trimble, a justice of the Superior Court of Ontario and former President of the Ontario Bar Association. ‘Think before you send,’ he cautions, citing the IWG report, in an article entitled ‘How to Interact with Judges on Social Media’. But as he points out, ‘Judges are people too. They have families, friends, and colleagues.’ However, ‘while we want to communicate with our friends and relation, we want to maintain our impartiality.’ For that reason, judges should be especially cautious about ‘friending’ people on Facebook as this can be seen as affecting their impartiality, ‘especially where that person appears before the judge’.
Realistically, though, judges are bound to know and be friends with practitioners, and to suggest that they would not act fairly in a case simply because one of the barristers is a friend on Facebook or a solicitor has connected via LinkedIn seems absurd. Yet that is just the sort of thing the super-suspicious lay client on the other side may choose to focus on and demand that the judge recuse himself.
In my next post I will look at this whole issue of ‘friends’ on Facebook and how that can turn sour in the courtroom.
Meanwhile (with acknowledgements to the BC Provincial Court), I leave you with news that in Texas there is a judge who doesn’t just have a twitter account in his own name (Judge Jeff Brown of the Supreme Court of Texas), but his car, a 2015 Toyota Camry XLE, also tweets from @CamryOfJustice. Who says social media isn’t a vehicle for change?