Thursday, October 12, 2017

Judicial Commenting

It is a recurrent theme, Judges and social media. A recent post suggested the Nancy Reagan approach ("just say no") for judges. While there certainly are some safe topics for judges to discuss, there are also some that might best be left alone. And, perhaps it is not "where" the statements appear (social media), but that they appear anywhere, or were made at all?

Last November, the San Antonio Police posted regarding the arrest of a suspect in the killing of a police officer. Seeing that announcement and photo of the suspect, County Judge James Oakley "posted to the SAPD Facebook page the comment, “Time for a tree and a rope . . ..” The comment also appeared, through the functions of Facebook apparently, on the Judge's "own Facebook page."  An important lesson about social media is that information can spread and propagate. A posting in one place can quickly appear in others. 

Once the image of that post began to appear in the media, the Judge removed the post "and issued a public apology." Eighteen complaints were filed against the judge with the Commission, in part perhaps due to the publication of the image in various media. There were multiple issues expressed, including "vigilante justice," "apparent disregard for due process," and "racial insensitivity." 

The Judge defended his (by then) deleted comment, asserting that he intended no racial or gender reference, and merely reflected "personal feelings that this senseless murder of a police officer should qualify for the death penalty." He also said that the reference to a rope was derived from a "humorous advertising campaign for Pace Picante Sauce from the 1980s." Frankly, I had forgotten that old ad until reading this story. 

The Commission cited Canon 4A(1) of the Texas Code of Judicial Conduct:
a judge “shall conduct all of the judge’s extracurricular activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge.” 
It concluded that the Facebook posting "cast reasonable doubt on (Judge Oakley's) capacity to act impartially in the performance of his duties, in violation of Canon 4A(1)." It also found fault based upon a provision in the state constitution that forbids conduct that “casts public discredit upon the judiciary or administration of justice.”

The Commission concluded that a public reprimand was justified for Judge Oakley, and that he should attend the "30-hour educational training program for new judges." The Commission noted that Judge Oakley had not previously undertaken that training, despite his tenure. It appears that he had been on the bench for about two years at the time of his Facebook posting, according to Wikipedia (a seemingly respected source of information relied upon by courts, see The Internet, Evidence, and Defamation).

In addition, the Commission ordered Judge Oakley to have "four (4) hours of instruction in the area of racial sensitivity with a mentor." The opinions does not specify, but presumably that would be mentoring by another Texas judge. 

This is not the first time that a judge has experienced scrutiny over the use of Facebook. An interesting instance was discussed in Will you be my Friend. More recently, Judges and Facebook have been examined again, and the Florida Third District Court (in Herrsein v. USAA, Case no. 3D17-1421, August 23, 2017) has seemingly softened earlier prohibitions on judicial face-booking, as discussed recently in Social Media and Judges. The implication of that decision may be a wider Florida judicial participation in social media generally, and Facebook specifically. 

It should be remembered, however, that the Herrsein decision is specific to the decision the court was called upon to make. That is, whether the relationship of "friend" in the colloquialism of social media is meaningful in determination of disqualification or recusal under the Code of Judicial Conduct. Herrsein may be seen by some as not addressing whether a judge may (or should) engage on Facebook, or have "friends" on Facebook, but only addressing specifically whether a judge should or must be disqualified based upon such connections.

With the previous admonitions regarding Facebook participation, published in 2010 by the Florida Judicial Ethics Advisory Committee (JEAC), a great many Florida judges have simply avoided social media generally, and Facebook specifically. The Florida JEAC conclusions are not shared universally in other states, and thus Facebook participation by judges varies state to state. With the seeming relaxation on Florida judge's social media participation, lessons from other states may be of increasing interest.   

Some contend that Judge Oakley's comments and reprimand are not a social media issue however. They remind us that it is the nature of his comment, and not the platform that are noteworthy. Consider that many online publishers offer readers an opportunity to comment on news stories. Such a comment could as easily be spread and publicized. We can likely agree that the judge's comments have been no less troublesome if posted in response to the arrest announcement on a local news site?

There is sound logic in concluding that the comment venue (social media versus news site) is less relevant than the comment content. That said, it is possibly harder to identify the comment-maker on a news site, while social media is clearly tied to the person making the statement. A recent case in New York illustrates the challenges of discovering the identity of those who post comments or reviews online. 

There are therefore multiple issues for consideration. Perhaps the critical issue however, is the content of communications. Judges should focus on remaining impartial, and avoiding statements demonstrating bias, or partiality. Following the language of the Code, avoiding comments that could "cast reasonable doubt on the judge’s capacity to act impartially." Perhaps the focus on this content, aside from any distracting analysis of platform or social media, can help us focus on the meaning of the words, and their potential for damage and discredit?

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