Judges in England and Wales are more or less forbidden to engage on social media, and if any do so they are almost invisible to the public gaze. But in the United States the position is markedly different. Judges are active on Twitter and many also have a Facebook account, which they see as a legitimate way of engaging with the public, no different from giving speeches or interviews or writing articles in the newspapers or journals. But then US judges are often elected rather than being appointed, and social media is just one more way to get their campaign message across.
One of the long listed candidates to fill the recent vacancy on the US Supreme Court bench was Justice Don Willett of the Texas Supreme Court. The respected SCOTUS Blog commented in June this year that ‘of all the names on President Donald Trump’s list of potential Supreme Court nominees, Don Willett’s may be the best known outside rarefied legal circles.’ The reason was his enthusiastic embrace of social media.
On Twitter, where Willett has well over 100,000 followers, his profile picture or avatar shows the silhouette of a cowboy riding the Twitter blue bird as though it were a bucking bronco in a rodeo. While serving as a witty comment on the unruliness of the medium, the image is all the more justified in his case, having once been a rodeo rider in real life.
Willett also has a Facebook account, where amongst the somewhat pious posts about the US Constitution and American history, he also shows family photos and goofy memes and his now famous Texas-shaped cornbread baking tin. In recent months, following his nomination for a seat on the US Court of Appeals for the 5th Circuit, he has been rather less active, perhaps conscious of the need not to jeopardise his chances of confirmation before a committee of po-faced (and rather less social media savvy) senators.
Other US judges have not been quite so astute.
Some have failed to realise quite how publicly their comments on Facebook – even on cases they are in the midst of hearing – might be read. Others have found themselves in hot water after ‘friending’ attorneys appearing in their court. Though some judges have faced disciplinary action or calls for recusal, others have managed to err just on the right side of the latitude which seems to have been allowed them.
In Minnesota back in 2015, Senior Judge Edward W Bearse got into trouble after publicly posting comments on his Facebook page during a trial. The case concerned sex trafficking. He commented:
‘Some things I guess will never change. I just love doing the stress of jury trials. In a Felony trial now State prosecuting a pimp. Cases are always difficult because the women (as in this case also) will not cooperate. We will see what the 12 citizens in the jury box do.’
The defendant was eventually convicted, but when the Facebook post was disclosed to the defence before sentencing, they moved for a new trial. Another judge granted the motion on the ground that Judge Bearse’s Facebook comments ‘imply a pre-judgment of the case’, not surprisingly since he described the defendant as a ‘pimp’ and implied that the woman involved was a prostitute.
Bearse made comments on other cases in which he appeared to have assumed that the defendants were guilty. In another, he speculated that, if the prosecution appealed, ‘which they will not, I think I will be reversed’.
When hauled before the Minnesota Board on Judicial Standards he said he believed that his Facebook posts were only available to some 80 family members, friends and members of his church. In fact they were available to anyone. But as Joe Patrice comments on Above The Law (Judge Busted For Litany Of Inappropriate Facebook Posts), ‘The problem with Judge Bearse’s excuse is that none of this is Kosher even when limited to friends and family.’
Having found various breaches of the Code of Judicial Conduct, including rule 3.1(A) and (C) which prohibit ‘participating in activities that interfere with the proper performance of the judge’s judicial duties or that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality’, the Board issued Judge Bearse with a Public Reprimand.
He has since closed his Facebook account.
Are friends too close for comfort?
In Florida, the question of whether a judge should recuse him- or herself from a case in which they are ‘friends’ on Facebook with one of the lawyers involved has gone both ways.
In one case, back in 2012, the Fourth District Court of Appeal ruled that a judge had to disqualify himself because he was Facebook friends with the prosecutor on a criminal case: see Domville v. State, 103 So. 3d 184 (2012).
But in the 2017 case of Law Offices of Herssein and Herssein, PA v United Services Automobile Association (No. 3D17-1421) the Third District Court of Appeal ruled that Judge Beatrice Butchko did not have to recuse herself from a civil case because she was Facebook friends with a lawyer in the case. In fact, he was not just any lawyer, but an ex-circuit court judge who had gone back into practice and was now representing a potential witness and party in a case involving breach of contract and fraud.
The court noted, at the outset, that mere friendship with a lawyer in a case was not enough to justify disqualifying a judge. Otherwise ‘most judges in rural and semi-rural areas and many in metropolitan areas would be subject to disqualification in a large number of cases’. It went on to point out that, thanks to the operation of algorithms which suggest ‘People You May Know’ as potential ‘friends’, some people had thousands of Facebook friends. Facebook members often could not recall every person they had accepted as ‘friends’ or who had accepted them as ‘friends.’
This probably represents a maturing of knowledge on the part of the courts as to how platforms like Facebook actually work. The earlier decision appears to have assumed that the process of selecting and adding ‘friends’ was a supremely conscious process for which a judge might therefore be held judicially responsible, since it ‘conveys or permits others to convey the impression that they are in a special position to influence the judge’. No one these days would think that way, if they were in the least familiar with the way platforms like Facebook data-mine your contacts and interactions for opportunities to enlarge their own reach and scope for advertising.
That’s not to say that caution can be thrown to the wind. It’s one thing to have lawyers as friends in your Facebook account; it’s quite another to use the account to comment on the cases in which they might be involved.
We can be fairly certain, though, that neither is likely to trouble any English judges of our acquaintance. Nor are we likely to see a cornbread tin in the shape of Berkshire or Surrey, delightful though that prospect might be.
Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. He is one of three authors of Transparency in the Family Courts: Publicity and Privacy in Practice