Langham: Social Media and Judges

Friday, September 22, 2017 | 0

The ABA Journal recently reported that a Texas judge is subject to some scrutiny as a result of social media. Meanwhile, a District Court in Florida takes a different path regarding judges and Facebook. And an Alabama judge's Facebook activity led to a disqualification petition with the Alabama Supreme Court.

Judge David Langham

All three are stories worthy of judges paying attention. 

I have written about social media, most recently in Sharing Everything or Is It TMI. The perils of social media surround us (see Assume Everyone Is Watching). Everything that we say, do or write may become part of the social media environment whether because we post it or because someone else does (see How are People Viewed and Treated).

One of the most perilous platforms for judges is Facebook, in part because if its vernacular choice, labeling people as "friends" (see Will You Be My Friend?).

In multiple professional presentations, I have cautioned judges that the best way to stay out of trouble on Facebook is to stay off of Facebook completely. But that brings us back to our Texas judge. 

According to the ABA, this judge was in the midst of a trial, a criminal case involving an allegedly drunk river. A friend was corresponding with the judge about personal issues ("he was home with a cold"). After receiving the "home with a cold" message on Facebook, the judge replied:

"I’ve had the worst cold but instead of staying home I’m being tortured by an attorney in a trial. So, I’m actually jealous of you!"

But the judge's reply was not viewed merely by her sick friend. An issue with social media is that things people say are not private, nor intended to be, and can often be seen by a great many people. In this instance, the response "raised some eyebrows among Austin criminal defense lawyers." The local lawyers had some questions, according to the Statesman. 

One attorney quoted by the Statesman said that the comment was a harmless joke. He characterized it as an attempt to make a sick friend feel better. Others were not as forgiving. 

One of the attorneys involved in the trial reportedly said that he did not believe it was a joke. He believed that "she said that on purpose and she was being rude." He described the decision to post that comment on social media as "eye-popping," "disrespectful," "unprofessional" and "unethical."

He also contended that the comment violated the criminal defendant's constitutional rights (he represented the defendant). Though the judge did not say which particular attorney in the trial was "torturing" her, it could have been a reference to the defense attorney. 

In Alabama, the Supreme Court has temporarily halted a murder trial over Facebook. There, a police officer is accused of killing a motorist during a traffic stop. There are racial overtones to the case, and before the case was assigned, the eventually assigned judge wrote on Facebook about racial profiling.

The defense moved to disqualify the judge, but that was denied. An appeal of that decision to an intermediate Alabama appellate court did not result in disqualification. Now the Alabama Supreme Court will decide.

In Florida, the 3rd District Court concluded in Herrsein v. USAA, Case No. 3D17-1421 that being "friends" on Facebook is not grounds for disqualification of a trial judge. There, one of the attorneys and the trial judge are "friends" on the trial judge's personal Facebook page. The court acknowledged that the 4th District Court has already concluded that such a friendship has supported disqualification.

That decision was in part based upon a 2009 opinion of the Florida Judicial Ethics Advisory Committee (JEAC) that concluded Florida judges are precluded from having lawyers who appear before them as "friends" on Facebook. 

But the 3rd District concluded here that “[a] Facebook friendship does not necessarily signify the existence of a close relationship.” It examined a 5th District decision questioning both the 4th District decision and the JEAC opinion. The 3rd District was also persuaded by several out-of-state Facebook cases that involved trial judges who were "friends" with witnesses or potential witnesses in cases.

After a discussion of the methodology of "friend" selection and applied mathematics, the court discounted the 4th DCA's conclusion that a "judge’s selection of Facebook 'friends' necessarily 'conveys or permits others to convey the impression that they are in a special position to influence the judge.'”

So, in Texas, a judge's comments lead to criticism, the Alabama Supreme Court will address comments, and in Florida it is now quite unclear whether judges should participate in Facebook or how they should deal with "friends." There are multiple issues. 

As to comments, were either the Alabama or Texas judge wrong? People may perceive things differently. In the judicial realm, there are dangers of impropriety, undoubtedly. But, the greatest challenge that judges face is often not so concrete. Judges are governed by the Code of Judicial Conduct, and that code can be very broad. 

One phrase continuously comes up for discussion. The code (each state has its own, but this phrase or a similar statement is in many) precludes both impropriety and the "appearance of impropriety." That means that judges should avoid things that a reasonable person might view as inappropriate, even if the action or words are genuinely not necessarily actually inappropriate.

That is a tough burden. In essence, judges must be on their individual guard regarding how they speak and act and how others perceive their words and actions. 

In large part, the Florida decision centers on that standard and whether reasonable people perceive the existence of a Facebook "friendship" as actually connoting a relationship. The opinion cites multiple examples of witnesses, parties and jurors who have more than a thousand "friends," in some instances unknowingly including someone else involved in a particular legal case.

The court seems focused in that, upon whether there is a perception today that Facebook interaction is meaningful or connotes relationship, or whether "friends" has devolved to the colloquial labeling that exists in all social media in some form (though one is "linked" to or "follows" another may not connote actual interest in or "following" in reality.)

But, with that standard in mind, are the Alabama and Texas cases different? Certainly, an appearance of impropriety could be grounds for disqualification under the code. And perhaps the mere existence of a connection, be it labeled "friend" or not, could raise such an appearance. But what about when the judge's activity on Facebook is the issue rather than merely the existence of connection?

Canon 2 of the code says:

A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.

Canon 3(b)(4) of the code says:

A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity.

Canon 3(b)(5) says:

A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice ...

Canon 3(b)(9) of the Code says:

A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness, or make any nonpublic comment that might substantially interfere with a fair trial or hearing.

In Alabama, the judge wrote about his personal perceptions of experiences with the police. Those comments were made before this particular litigation was assigned to him. Therefore, it is not a comment "while a proceeding is pending" and likely not necessarily "impending."

However, could a reasonable person conclude that the words manifest a bias or a prejudice?
In Texas, the judge wrote about lawyer "torturing" her. Many would likely conclude that if such a statement were made to an attorney in court it would be less than patient or courteous.

Should it matter that the statement was broadcast on social media instead of being made in court? Does such a comment, made while the "proceeding is pending," have any potential to "affect its outcome?" 

These three cases raise a fair few questions about how the code could be implicated. I remain convinced that the best advice for judges and Facebook is to stay off of Facebook completely.

However, perhaps the more realistic advice in today's social media age would be to avoid commenting in any media regarding a case that is pending before you. Whether the Texas judge's comments would warrant sanction or disqualification, there is the potential for a perception of discourtesy or an appearance of impropriety.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.