Social Media Has Benefits and Pitfalls for Courts, Panelists Say

By Ira Pilchen
American Bar Association
Aug. 7, 2011

TORONTO–If Facebook were a country, it would be the world’s third largest, audience members learned during an American Bar Association Annual Meeting session Aug. 6 on social media and the judiciary. And when the judges in the room were asked to stand if they had Facebook accounts, a substantial majority did so.

In fact, a survey last year by the Conference of Court Public Information Officers found that 40 percent of judges in the United States, most of whom are elected, have Facebook accounts.

Keynote speaker Herbert B. Dixon Jr., a judge on the District of Columbia Superior Court, knows his stuff when it comes to technology and the judiciary. Among other positions, he is technology columnist for the ABA Judicial Division’s Judges Journal, and he oversees his court’s technology-enhanced courtroom project.

Dixon told the story of a lawyer who was angry with a judge, so he blogged that she was an “evil, unfair witch.” The Florida Bar reprimanded and fined him, calling the incident a personal attack on the judiciary, not a First Amendment issue.

Dixon recounted other stories involving juror misconduct and use of the Internet. During one Florida drug trial, the judge declared a mistrial after learning that a juror did web-based research on the case. Media outlets dubbed it “Mistrial by Google.” In another case, a juror posted to Facebook that she looked forward to announcing a guilty verdict.

Because of developments in social media, Dixon finds it helpful—as early as voir dire and also during jury instructions—to be explicit that jurors are prohibited not only from consulting traditional dictionaries or reference materials, but also from searching the Internet, websites or blogs. He instructs that jurors may not communicate with anyone about the case by blogging, texting or tweeting, or by discussing the case on Facebook, MySpace, LinkedIn or YouTube.

Dixon questioned the behavior of U.S. Supreme Court Chief Justice John Roberts, who is not bound by the code of judicial conduct, when he announced that he did his own Internet research in the 2011 cases of Arizona Free Enterprise Club v. Bennett and McCormish v. Bennett. According to Dixon, during oral arguments Roberts said, “I checked the Citizens’ Clean Elections Commission website this morning. … It says that this act was passed to, quote, ‘level the playing field’ when it comes to running for office. … Why isn’t that clear evidence that [the law] is unconstitutional?”

Aside from independent fact-finding or discussion of pending cases on the Internet, other ethical landmines abound with social media. For example, is it OK for a judge to “friend” a lawyer on a social networking site like Facebook? Ethics opinions vary.

A South Carolina ruling stated that a magistrate judge may be social media “friends” with law enforcement officers and employees as long as there is no discussion of anything relating to the judge’s position. In Florida, however, a ruling that had a dissent determined that judges may not “friend” lawyers on Facebook and vice versa, as it creates an inappropriate appearance.

Dixon shared his “Judicial Commandments Re Social Media,” listed below with his citations to the relevant sections of the Model Code of Judicial Conduct.

• A judge must maintain dignity in every comment, photograph and other information shared on social networking sites (Rule 1.2, Promoting Confidence in the Judiciary).
• A judge should not make comments on a social networking site about any matters pending before the judge — not to a party, not to a counsel for a party, not to anyone (Rule 2.9, Ex Parte Communications).
• A judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge (Rule 2.9, Ex Parte Communications).
• A judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party (Rule 2.11, Disqualification).
• A judge may not give legal advice to others on a social networking site (Rule 3.10, Practice of Law).
• A judge should be aware of the contents of his or her social networking page, be familiar with the social networking site policies and privacy controls, and be prudent in all interactions on a social networking site (“common sense”).

The panel, titled “‘Friend’ is Now a Verb: Judicial Ethics and the New Social Media,” was moderated by Iowa state court Judge Annette Scieszinski. Panelists included U.S. District Judge Bernice Donald, American Judicature Society ethics director Cynthia Gray, Alaska Commission on Judicial Conduct executive director Marla Greenstein, and ABA Judicial Division Chair Judge G. Michael Witte.

Panelists also discussed innovative uses of social media and the judiciary, such as in drug courts and other problem-solving courts, and when courts announce logistical information for jurors and other public information by text messaging or Twitter.

The program was sponsored by the ABA Judicial Division and the American Judicature Society. Scieszinski invited attendees and others to contact the Judicial Division if they are interested in producing a similar program in their jurisdictions.