Nicole Black, The Daily Record Newswire
Judges and social media: according to most judicial ethics commissions, it’s a dicey proposition that doesn’t always work out well for judges. As I’ve discussed in past columns, more often than not, judges are chastised by judicial ethics commissions for their online interactions. In many cases, the conclusions are based on knee jerk reactions to “newfangled technology” and are grounded in an inherent misunderstanding of the nature of online platforms and interactions.
Such is the case with the Supreme Court of New Mexico’s decision last week in State v. Thomas, No. 34,042. In this case, the defendant contended that social media postings by the district court judge exhibited judicial bias, where, during the pendency of the trial, the judge posted comments to his election campaign Facebook page regarding his role in the case and his opinion of its outcome.
The Court chose not to address the specific allegations regarding the judge’s social media usage since it was overturning the defendant’s conviction on other grounds. But it then proceeded to provide guidance on judges using social media and offered this blanket statement which essentially discouraged judges from interacting online in nearly all contexts:
“While we make no bright-line ban prohibiting judicial use of social media, we caution that ‘friending,’ online postings, and other activity can easily be misconstrued and create an appearance of impropriety. Online comments are public comments, and a connection via an online social network is a visible relationship, regardless of the strength of the personal connection.”
After issuing this unfortunate mandate, the Court then proceeded to provide some conflicting guidelines designed to assist judges who choose to interact on social media.
First, the Court wisely advised judges to avoid posting about pending matters—advice that the judge in this particular case would have been wise to heed—while simultaneously and inexplicably forbidding judges from making any public comments online whatsoever: “We clarify that a judge who is a candidate should post no personal messages on the pages of these campaign sites other than a statement regarding qualifications, should allow no posting of public comments, and should engage in no dialogue, especially regarding any pending matters that could either be interpreted as ex parte communications or give the appearance of impropriety.”
The Court then continued along this vein by reiterating that judges should avoid most, if not all, online public statements: “Judges should make use of privacy settings to protect their online presence but should also consider any statement posted online to be a public statement and take care to limit such actions accordingly.”
Next, the Court then cautioned that judges must understand the implications of interacting online (which would presumably be via private postings only since all public communications seem to be out of the question): “A judge must understand the requirements of the Code of Judicial Conduct and how the Code may be implicated in the technological characteristics of social media in order to participate responsibly in social networking.”
So, essentially, the Court’s position seems to be that judges should avoid all public communications when interacting online, even communications as benign as, “Here’s a photo of my new granddaughter. Isn’t she cute?” or “What a game last night! Go Bills!” The Court asserts that it’s not creating a bright line rule prohibiting social media use by judges, but the apparent prohibition against public communications —which are the very essence of social media — seemingly belies this claim. For that reason, the Court missed the mark and I would respectfully suggest that the Court’s conclusions regarding judges using social media will not withstand the test of time.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@ mycase.com.
