Prompted by Pots we look at two recent US opinions on the judiciary and facebook.***
J’accuser “Pots” has kindly drawn our attention to two cases (or rather Opinions) in the US last year where judicial advisory committees were asked about the participation of judges in social networks such as Facebook.It is interesting, for comparative purposes to see the evolution of case law in other jurisdictions while bearing in mind that the principles might still be applied differently (as in not identically – to be quite clear) in Malta. An opinion by such committees is an interpretation of the code of ethics applying to the judiciary. It is also worth noting that in the US, unlike in Malta, judges are elected to their post.
South Carolina, USA
In October 2009, the South Carolina Advisory Committee on Standards of Judicial Conduct (SCACSJC) issued an opinion in answer to a query by a Magistrate “as to the propriety of being a member of Facebook, a social networking site.” According to the query, “the Magistrate is friends with several law enforcement officers and employees of the Magistrate’s office. The Magistrate is concerned about the possibility of an appearance of impropriety since the list of Facebook subscribers is vast.” In its opinion, the SCACSJC concluded that “A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.” Opinion 17-2009 read as follows:
A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(A), Rule 501, SCACR. However, the commentary to Canon 4 states that complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge. Thus, a judge may be a member of a social networking site such as Facebook.
Florida, USA
On November 17th 2009, the Florida Judicial Ethics Advisory Committee (FJEAC) concluded in its opinion that “judges may not “friend” lawyers who may appear before them on social networking sites such as Facebook.”. The issues before the FJEAC were as follows (as provided Opinion 2009-20)>
Whether a judge may post comments and other material on the judge’s page on a social networking site, if the publication of such material does not otherwise violate the Code of Judicial Conduct.
ANSWER: Yes.
Whether a judge may add lawyers who may appear before the judge as “friends” on a social networking site, and permit such lawyers to add the judge as their “friend.”
ANSWER: No.
Whether a committee of responsible persons, which is conducting an election campaign on behalf of a judge’s candidacy, may post material on the committee’s page on a social networking site, if the publication of the material does not otherwise violate the Code of Judicial Conduct.
ANSWER: Yes.
Whether a committee of responsible persons, which is conducting an election campaign on behalf of a judge’s candidacy, may establish a social networking page which has an option for persons, including lawyers who may appear before the judge, to list themselves as “fans” or supporters of the judge’s candidacy, so long as the judge or committee does not control who is permitted to list himself or herself as a supporter.
ANSWER: Yes.
The FJEAC then proceeds to explain what Facebook is about, highlighting the two main functions of active posting for others to view and of adding friends. The FJEAC elaborates on the uses of Facebook while also referring to the Facebook Policy. The discussion that elaborates on the decision by the FJEAC merits close reading. You will find at the end of this post some highlights from the opinion (the full opinion is here).
With regards to the ongoing issue in Malta that has arisen out of PlateGate, it is important to note that the Commission for the Administration of Justice approved an amendment to the Judicial Code of Ethics by including the fourth core value of the Bangalore Principles of Judicial Conduct. As reported on the Judiciary of Malta site:
On Monday 8 February 2010 the Commission for the Administration of Justice approved an amendment, proposed by the Chief Justice in terms of rule 29 of the Code of Ethics for Members of the Judiciary, to have a new paragraph inserted in the Guidelines attached to the said Code under the heading “Social, cultural and other activities”. The new paragraph, which incorporates the fourth “core value” of the Bangalore Principles of Judicial Conduct, reads as follows: Since propriety, and the appearance of propriety, are essential to the performance of all the activities of a judge, membership of ‘social networking internet sites’ is incompatible with judicial office. Such membership exposes the judge to the possibility of breach of the second part of rule 12 of the Code.
This measure gave an across the board answer as to the participation of members of the Maltese judiciary in social networking sites. It is important to note that what this measure does not automatically do is equate evidence of participation on a social network site with (a) improper behaviour or (b) behaviour that could undermine the judge’s independence or impartiality. For the local scenario it is immediately evident that any magistrate would have been better off staying off facebook altogether – particualrly since the elaborate considerations and qualifications in the South Carolina opinion (which to me soundmore reasonable) do not seem to find favour in the more draconian Maltese interpretation (via Bangalore). PlateGate could have been seen to include allusions to allegations about a magistrates’ particular connections – some of which might be inferred from her facebook presence. We are still on tenuous ground here which is why many are hoping that the appropriate fora would be provided with much more concrete evidence than simply a corny pose at a party.
In other words, a member of the judiciary’s facebook presence is not acceptable per se and has been confirmed, by various jurisdictions to be a more than potential threat to “appearance of propriety”. Merely establishing that a member of the judiciary is or was a member of facebook and had friends thereupon creates insinuations of the “hbieb tal-hbieb” kind that we were used to in the Alfred Sant period. It is, if anything, accepted that it is a potential slur on the “appearance of propriety” that magistrates are dutybound to hold. To paraphrase a famous dictum: (Dispensers of) Justice must not only be proper but they must also be seen to be proper. Which is all fair and square. That violation of itself is not enough though, there have been allegations of improper behaviour (and by this I do not mean being on facebook). Those allegations still need to be substantiated otherwise the whole crusade is exposed as a farce born out of a vindictive catfight. The case is yet to begin.
Extensive Highlightsfrom Opinion 2009-20 of Florida Judicial Ethics Advisory Committee
The first and third questions above, relating to the posting of materials by either the judge or the campaign committee are answered in the affirmative because they relate only to the method of publication. The Code of Judicial Conduct does not address or restrict a judge’s or campaign committee’s method of communication but rather addresses its substance. Therefore, this proposed conduct, whether by the judge or the campaign committee, does not violate the Code of Judicial Conduct. Of course, the substance of what is posted may constitute a violation. […]
However, the second question poses a fundamentally different issue because the inquiring judge proposes to permit lawyers who may appear before the judge to be identified as “friends” on the judge’s social networking page. Similarly, the inquiring judge contemplates the lawyers who may appear before the judge will list the judge as a “friend” on their pages, such listing requiring the consent of the judge in order to take effect.
The inquiring judge proposes to identify lawyers who may appear in front of the judge as “friends” on the judge’s page and to permit those lawyers to identify the judge as a “friend” on their pages. To the extent that such identification is available for any other person to view, the Committee concludes that this practice would violate Canon 2B.
Canon 2B states: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”
[…] It is this selection and communication process [J’accuse Note: “of adding friends”], the Committee believes, that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.1
While judges cannot isolate themselves entirely from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities, some restrictions upon a judge’s conduct are inherent in the office. Thus, the Commentary to Canon 2A states:
“Irresponsible or improper conduct by judges erodes public confidence in the judiciary. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”
A judge’s participation in a social networking site must also conform to the limitations imposed by Canon 5A, which provides:
“A. Extrajudicial Activities in General. A judge shall conduct all of the judge’s extra-judicial activities so that they do not:
- cast reasonable doubt on the judge’s capacity to act impartially as a judge;
- undermine the judge’s independence, integrity, or impartiality;
- demean the judicial office;
- interfere with the proper performance of judicial duties;
- lead to frequent disqualification of the judge; or
- appear to a reasonable person to be coercive.”
The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge. This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge. The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.
The Committee notes, in coming to this conclusion, that social networking sites are broadly available for viewing on the internet. Thus, it is clear that many persons viewing the site will not be judges and will not be familiar with the Code, its recusal provisions, and other requirements which seek to assure the judge’s impartiality. However, the test for Canon 2B is not whether the judge intends to convey the impression that another person is in a position to influence the judge, but rather whether the message conveyed to others, as viewed by the recipient, conveys the impression that someone is in a special position to influence the judge. Viewed in this way, the Committee concludes that identifying lawyers who may appear before a judge as “friends” on a social networking site, if that relationship is disclosed to anyone other than the judge by virtue of the information being available for viewing on the internet, violates Canon 2(B).
The inquiring judge has asked about the possibility of identifying lawyers who may appear before the judge as “friends” on the social networking site and has not asked about the identification of others who do not fall into that category as “friends”. This opinion should not be interpreted to mean that the inquiring judge is prohibited from identifying any person as a “friend” on a social networking site. Instead, it is limited to the facts presented by the inquiring judge, related to lawyers who may appear before the judge. Therefore, this opinion does not apply to the practice of listing as “friends” persons other than lawyers, or to listing as “friends” lawyers who do not appear before the judge, either because they do not practice in the judge’s area or court or because the judge has listed them on the judge’s recusal list so that their cases are not assigned to the judge.
A minority of the committee would answer all the inquiring judge’s questions in the affirmative. The minority believes that the listing of lawyers who may appear before the judge as “friends” on a judge’s social networking page does not reasonably convey to others the impression that these lawyers are in a special position to influence the judge. The minority concludes that social networking sites have become so ubiquitous that the term “friend” on these pages does not convey the same meaning that it did in the pre-internet age; that today, the term “friend” on social networking sites merely conveys the message that a person so identified is a contact or acquaintance; and that such an identification does not convey that a person is a “friend” in the traditional sense, i.e., a person attached to another person by feelings of affection or personal regard. In this sense, the minority concludes that identification of a lawyer who may appear before a judge as a “friend” on a social networking site does not convey the impression that the person is in a position to influence the judge and does not violate Canon 2B.
[…]Although Facebook has been used as an example in this opinion, the holding of the opinion would apply to any social networking site which requires the member of the site to approve the listing of a “friend” or contact on the member’s site, if (1) that person is a lawyer who appears before the judge, and (2) identification of the lawyer as the judge’s “friend” is thereafter displayed to the public or the judge’s or lawyer’s other “friends” on the judge’s or the lawyer’s page.
REFERENCES
Florida Code of Judicial Conduct: Canon 2B; Commentary to Canon 2A.
Florida Judicial Ethics Advisory Committee Opinions: 99-26, 00-22, and 08-11.
