Does Avoiding Judicial Isolation Outweigh the Risks Related to “Professional Death by Facebook”?
3. Part I
3.1. Framing the Issues
“…the lawyer had asked for a continuance because of the death of her father. The lawyer had earlier posted a string of status updates on Facebook, detailing her week of drinking, going out and partying. But in court, in front of [Judge] Criss, she told a completely different story…”.
3.2. The “End of Forgetting”?
3.3. Leaving Breadcrumbs
3.4. From the General to the Particular: Values to be Balanced in Articulating Guidelines for Judicial Social Networking
3.5. Internet Use (Including Social Networking) qua Freedom of Expression
3.6. The Modern Soapbox?
“In Bland, a suit was brought against the recently re-elected, Sheriff B.J. Roberts, alleg[ing] that the Sheriff violated the plaintiff' First Amendment rights to freedom of speech and freedom of association when he fired them for supporting the candidacy of his election opponent through their ‘speech’ on Facebook”.
3.7. Pertinence to the Judiciary
4. Part II: An Overview of the Emerging Normative Framework
4.1. The 2013 ABA Report: Proceed, but with Caution
“Judges must assume that comments posted to an ESM site will not remain within the circle of the judge’s connections…[C]omments, images or profile information—some of which might prove embarrassing if publicly revealed—may be electronically transmitted without the judge’s knowledge or permission to persons unknown to the judge or to other unintended recipients. Such dissemination has the potential to compromise or appear to compromise the independence, integrity and impartiality of the judge, as well as to undermine public confidence in the judiciary”.(, pp. 1–2)
4.2. European Case Law/Incidents more Specific to Judicial Social Networking
“[B]logging by members of the judiciary is not prohibited. However, office holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general… The above guidance also applies to blogs, which purport to be anonymous. This is because it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered… Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action”.
5. Part III: What must We Do? Some Basic Recommendations
Conflicts of Interest
References and Notes
- Max Brantley. “Judge Mike Maggio withdraws from Court of Appeals race; acknowledges web postings.” Arkansas Times. 5 March 2014. Available online: http://www.arktimes.com/ArkansasBlog/archives/2014/03/05/judge-mike-maggio-withdraws-from-court-of-appeals-race-acknowledges-web-postings (accessed on 29 August 2014).
- Joe Patrice. “Judge Caught Making Racist, Sexist Comments on Internet Board.” Above the Law. 4 March 2014. Available online: http://abovethelaw.com/2014/03/judge-caught-making-racist-sexist-comments-on-internet-board/ (accessed on 29 August 2014).
- Christie Blatchford. “Judge who crudely criticized peers on Facebook accused of causing toxic workplace environment.” Ottawa Citizen. 6 May 2014. Available online: http://fullcomment.nationalpost.com/2014/05/06/christie-blatchford-judge-who-crudely-criticized-peers-on-facebook-accused-of-causing-toxic-workplace-environment/ (accessed on 29 August 2014).
- John Browning. “A Friend of the Court? How to Deal with the Intersection of Judges and Social Media.” Texas Bar Journal 77 (2014): 602–05. [Google Scholar]
- John Browning. “Why Can’t We be Friends: Judges’ Use of Social Media.” University of Miami Law Review 68 (2014): 487–534. [Google Scholar]
- Daniel Smith. “When Everyone is the Judges’ Pal: Facebook and the Appearance of Impropriety Standard.” Journal of Law, Technology, & the Internet 3 (2012): 66–101. [Google Scholar]
- Julien Goldzlagier, Hugues Julié, and Florence Lardet. “Magistrates’ Training and Deontology: The Ethical Challenge of Internet Use by Judges.” Available online: http://www.ejtn.eu/Documents/Themis%202012/THEMIS%202012%20ERFURT%20DOCUMENT/Written%20paper%20France%204.pdf (accessed on 29 August 2014).
- Which has not benefited from much attention in the scholarly literature to date, other than practitioners’ comments on point. See inter alia [4,5], and a student note . The issues have been raised in the context of judicial training in Europe. See .
- Following up on a presentation at the 5th IOJT conference, Center for State Courts, Washington, D.C., USA, 2013.
- Geoff Adlam. “Maybe I shouldn’t have done that….” LawTalk. 28 March 2014. Available online: https://www.lawsociety.org.nz/lawtalk/lawtalk-archives/issue-838/maybe-i-shouldnt-have-done-that (accessed on 29 August 2014).
- Quote generally attributed to Justice Horner, a Northern Ireland Magistrate, scolding an attorney. The judge continued on to say: “There is no guarantee that any comments posted to be viewed by friends will only be seen by those friends. Furthermore, it is difficult to see how information can remain confidential if a Facebook user shares it with all his friends and yet no control is placed on the further dissemination of that information by those friends. If there was any argument that it was confidential or private, that argument was destroyed by the posting on Facebook to which the general public had, I find, unfettered access…” .
- Joshua Gardner. “Computer expert hacks into Mark Zuckerberg’s Facebook page to expose the site’s vulnerability after his security warnings were dismissed (…they’re taking it seriously now though).” Daily Mail. 18 August 2013. Available online: http://www.dailymail.co.uk/news/article-2396628/Mark-Zuckerbergs-Facebook-page-hacked-Khalil-Shreateh-expose-site-vulnerability.html (accessed on 29 August 2014).
- Khalil Shreateh’s warned Facebook that he had uncovered a glitch that allowed him to post messages on any user’s wall, regardless of privacy settings. His warnings were apparently ignored so in order to make a point he posted on Zuckerberg’s account… It has been said that: “apparently not even he can figure out privacy settings” .
- New Media Committee of the Conference of Court Public Information Officers. “New Media and the Courts: The Current Status and a Look at the Future.” In Paper presented at the Conference of Court Public Information Officers 19th Annual Meeting, Atlanta, GA, USA, 9–11 August 2010; Available online: www.ccpio.org/newmediaproject/New-Media-and-the-Courts-Report.pdf (accessed on 9 May 2014).
- Molly McDonough. “Facebooking Judge Catches Lawyer in Lie, Sees Ethical Breaches #ABAChicago.” ABA Journal. 31 July 2009. Available online: http://www.abajournal.com/news/article/facebooking_judge_catches_lawyers_in_lies_crossing_ethical_lines_abachicago/ (accessed on 29 August 2014).
- See also Dahlia Lithwick, and Graham Vyse. “Tweet Justice: Should Judges be Using Social Media? ” Slate. 30 April 2010. Available online: www.slate.com/id/2252544/ (accessed on 29 August 2014).
- Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21 (available on CanLII).
- An interesting example of that requirement in a different context is the Supreme Court of Canada’s decision in Nadon holding that in order to be eligible for a “Quebec” seat on Canada’s highest court one must be currently a member of that provincial bar, thus demonstrating membership in and current attachment to Quebec’s legal community .
- Justice Barbara Krix. “The ‘Political Judge’ and the Principle of Impartiality in Germany.” In Presentation at the 3rd International Organization for Judicial Training (IOJT) Conference, Barcelona, Spain, 21–25 October 2007.
- See H. Patrick Glenn. “Limitations on Judicial Freedom of Speech in West Germany and Switzerland.” International and Comparative Law Quarterly 34 (1985): 159–61. [Google Scholar] [CrossRef]
- See Jeffery Rosen. “The Web Means the End of Forgetting.” New York Times. 25 July 2010. Available online: http://www.nytimes.com/2010/07/25/magazine/25privacy-t2.html?pagewanted=all&_r=0 (accessed on 29 August 2014).
- Scott Glover. “9th Circuit’s Chief Judge Posted Sexually Explicit Matter on His Website.” Los Angeles Times. 11 June 2008. Available online http://www.latimes.com/local/la-me-kozinski12-2008jun12-story.html (accessed on 29 August 2014).
- Patterico. “Alex Kozinski’s Wife Speaks Out.” Patterico’s Pontifications (blog). 16 June 2008. Available online: http://patterico.com/2008/06/16/alex-kozinskis-wife-speaks-out/ (accessed on 29 August 2014).
- Karen Eltis. Courts, Litigants and the Digital Age. Toronto: Irwin Law, 2012. [Google Scholar]
- Access to Information Act, RSC 1985, c A-1 (Can.).
- See David H. Tennant, and Laurie M. Seal. “Judicial Ethics and the Internet: May Judges Search the Internet in Evaluating and Deciding a Case? ” The Professional Lawyer 16, 2 (2005): 14–17. [Google Scholar]
- Evgeny Morozov. “The Dangers of Sharing.” New York Times. 29 January 2012. Available online: http://www.nytimes.com/2012/01/29/books/review/i-know-who-you-are-and-i-saw-what-you-did-social-networks-and-the-death-of-privacy-by-lori-andrews-book-review.html?pagewanted=all&_r=0 (accessed on 29 August 2014).
- See TwistImage. “Six Pixels of Separation—About Mitch Joel.” Available online: http://www.twistimage.com/about-mitch/ (accessed on 9 May 2014).
- Attributed to Mitch Joel .
- For a broader description seeInternational Association of Jewish Lawyers and Jurists. “About Us.” Available online: http://www.intjewishlawyers.org/main/index.php?option=com_content&view=article&id=44&Itemid=72 (accessed on 9 May 2014).
- “Lady Cosgrove’s impartiality when ruling on an immigration case of a Palestinian woman was compromised by being part of the International Association of Jewish Lawyers and Jurists” .
- Damien Henderson. “Judge Cleared of Jewish Bias.” The Herald. 17 January 2007. Available online: http://www.theherald.co.uk/news/news/display.var.1126944.0.0.php (accessed on 29 August 2014).
- See also, “Scottish Judge Cleared of Bias Charges.” JTA.org. 13 February 2007. Available online: http://www.heraldscotland.com/judge-cleared-of-jewish-bias-1.851107 (accessed on 29 August 2014).
- “Accusation of Judge’s Bias Rejected.” Journal Online. 17 January 2007. Available online: http://www.journalonline.co.uk/news/1003819.aspx (accessed on 29 August 2014).
- “The Association’s aims include the advancement of human rights, the prevention of war crimes, the punishment of war criminals and international co-operation based on the rule of law and the fair implementation of international covenants and conventions. It ‘is especially committed to issues that are on the agenda of the Jewish people, and works to combat racism, xenophobia, anti-Semitism, Holocaust denial and negation of the State of Israel’” .
- The court’s opinion can be read at In the Petition of Fatima Helow to the Nobile Officium of the Court of Session.  CSIH 5; United Kingdom: Court of Session (Scot.). Available online: http://www.scotcourts.gov.uk/opinions/2007CSIH05.html (accessed on 29 August 2014).
- “Upon receiving intimation of the judge’s decision, those representing the petitioner chose, for whatever reason, to make further inquiry about the judge. By means of the Internet search engine Google they discovered information about her which was (and is) publicly available on various websites. One such website was that of The International Association of Jewish Lawyers and Jurists. Available online: www.intjewishlawyers.org (accessed on 29 August 2014) .
- The judge’s ethnicity is well known as she is the first Jewish appointment to that level court.
- As distinguished from more general judicial Internet use.
- Interesting analogies may be drawn with extending the right to Vote to judges in Canada.
- Silke Wünsch. “Internet Access Declared a Basic Right in Germany.” DW. 27 January 2013. Available online: http://www.dw.de/internet-access-declared-a-basic-right-in-germany/a-16553916 (accessed on 29 August 2014).
- Federal Court of Justice in Karlsruhe, Thursday, 24 January 2013. The right is deemed so essential that compensation may be awarded for interruptions in service .
- Bland v. Roberts, 857 F. Supp. 2d 599 (E.D. Va. 2012), off’s in part, rev’d in part, and remanded, 730 F.3d 368 (4th Cir. 2013).
- See Alicia Sklan. “@SocialMedia: Speech with the Click of a Button? #SocialSharingButtons.” Cardozo Arts & Entertainment Law Journal 32 (2013): 377–410. [Google Scholar]
- Joe Palazzolo. “Court: Facebook ‘Like’ Is Protected by the First Amendment.” Law Blog. 18 September 2013. Available online: http://blogs.wsj.com/law/2013/09/18/court-facebook-like-is-protected-by-the-first-amendment/ (accessed on 29 August 2014).
- The People v. Andre B., No. J227937, 2012 WL 5353806 (Cal. App. 4 Dist Oct. 31, 2012).
- See Reno v. ACLU, 521 U.S. 844 (1997).
- See . In this book, published a mere two years ago, I suggested that judges would do best to entirely abstain from social media, whenever possible: it is far preferable (although not without controversy) that judges temporarily abstain from such practices altogether unless and until clearer guidelines emerge. In the alternative, a social network reserved for judges and their families exclusively, although for obvious reasons not a panacea, can perhaps fill some of the vacuum.” (, pp. 91–107). While that is still ideal, whenever possible, it would aver, in light of recent case law, particularly in the US (where social media has been explicitly brought under the First Amendment’s ambit) that isolating judges entirely from this ever prevalent form of communication would overly infringe on their freedom of expression (see ). “A Facebook―like is the internet equivalent of displaying a political sign in one’s front yard, which the Supreme court has held is substantive speech.” Accordingly, restrictions that are contextual to the digital age and represent the least restrictive means, commensurate with judicial obligations, better lend themselves to a sober balance between judicial duties and rights and would more likely withstand constitutional muster in Canada the United States and similarly situated constitutional democracies. Moreover, while abstinence is best, it might be unreasonable to expect or demend accross the board in light of constitutional constraints and given the near irresistible temptation to engage in these now near ubiquitous social practices. Therefore, the Second Edition of the book (forthcoming in 2016) will propose more, specific concretre guidelines for judicial social media use.
- Heila Garrido Hull. “Why We Can’t Be Friends: Preserving Public Confidence in the Judiciary.” Syracuse Law Review 63 (2012): 175–98. [Google Scholar]
- See also Judicial Conference Committee on Codes of Conduct. “Resource Packet for Developing Guidelines on Use of Social Media by Judicial Employees.” Available online: http://www.uscourts.gov/uscourts/RulesAndPolicies/conduct/SocialMediaLayout.pdf (accessed 9 May 2014).
- American Bar Association Standing Committee on Ethics and Professional Responsibility. “Formal Opinion 462: Judge’s Use of Electronic Social Networking Media.” Available online: http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_462.authcheckdam.pdf (accessed on 9 May 2014).
- People v. Schiller, 2012 IL App (2d) 110677-U (Ill. 2012).
- Martin Beckford. “Judges banned from blogging or Tweeting about cases.” Telegraph. 15 August 2012. Available online: http://www.telegraph.co.uk/news/uknews/law-and-order/9477275/Judges-banned-from-blogging-or-Tweeting-about-cases.html (accessed on 29 August 2014).
- Particularly in light of recent controversy, where UK judges were criticized for being “out of touch” with social media. See inter alia Zachary Sniderman. “Twitter Joke Trial: Judges Don’t Get Social Media, Says Stephen Fry.” Mashable. 9 February 2012. Available online: http://mashable.com/2012/02/09/twitter-judges-british-fry-chambers/ (accessed on 29 August 2014).
- General guidelines were separately issued and are available online at: Lord Chief Justice of England and Wales and Senior President of Tribunals. “IT and Information Security Guidance for the Judiciary.” Available online: http://www.magistrates-association.org.uk/members/dmdocuments/it_and_information_security_guidance_26_09_12.pdf (accessed on 9 May 2014).
- E.g., “Nous sommes soumis à un certain nombre d’obligations déontologiques. Le magistrat doit faire preuve de mesure dans sa communication pour ne pas compromettre l’impartialité de la justice et l’image de l’institution judiciaire…” .
- Marc Leplongeon. “Les juges et avocats français s’autocensurent sur Internet.” Le Point. 21 August 2012. Available online: http://www.lepoint.fr/societe/les-juges-et-avocats-francais-s-autocensurent-sur-internet-21-08-2012-1497685_23.php (accessed on 9 May 2014).
- Olivier Bénis. “Des magistrats poussés à quitter Twitter.” france inter. podcast audio. 28 November 2012. Available online: http://www.franceinter.fr/les-indiscrets-des-magistrats-pousses-a-quitter-twitter (accessed on 29 August 2014).
- See inter alia Frank Johannès. “Quand deux magistrats plaisantent sur Twitter pendant une audience en cour d’assises.” Le Monde. 28 November 2012. Available online: http://www.lemonde.fr/societe/article/2012/11/28/enquete-ouverte-apres-des-tweets-echanges-entre-magistrats-durant-un-proces-d-assises_1797276_3224.html (accessed on 29 August 2014).
- See also Pascale Robert-Diard. “Peut-on juger et tweeter à la fois? ” Le Monde. 30 November 2012. Available online: http://prdchroniques.blog.lemonde.fr/2012/11/30/peut-on-juger-et-tweeter-a-la-fois (accessed on 29 August 2014).
- “Twitter se démocratise dans les tribunaux français.” Le Nouvel Observateur. 21 April 2012. Available online: http://tempsreel.nouvelobs.com/societe/20120421.FAP2868/twitter-se-democratise-dans-les-tribunaux-francais.html (accessed on 29 August 2014).
- “Twitter dans les tribunaux: Pas de consensus aux Etats-Unis.” Le Nouvel Observateur. 21 April 2012. Available online: http://tempsreel.nouvelobs.com/monde/20120421.FAP2867/twitter-dans-les-tribunaux-pas-de-consensus-aux-etats-unis.html (accessed on 29 August 2014).
- Olivier Parent. “Twitter banni des tribunaux du Québec.” Le Soleil. 29 March 2013. Available online: http://www.lapresse.ca/le-soleil/actualites/justice-et-faits-divers/201303/28/01-4635816-twitter-banni-des-tribunaux-du-quebec.php (accessed on 29 August 2014).
- Canadian Judicial Council. “Technology Issues.” Available online: http://www.cjc-ccm.gc.ca/english/news_en.asp?selMenu=news_pub_techissues_en.asp (accessed on 9 May 2014).
- Most recently Martin Felsky. “Facebook and Social Networking Security.” Available online: http://www.cjc-ccm.gc.ca/cmslib/general/Facebook%20security%202014-01-17%20E%20v1.pdf (accessed on 9 May 2014).
- Cristin Schmitz. “Twitter too Trivial for Some.” Lawyers Weekly. 17 February 2012. Available online: http://www.lawyersweekly.ca/index.php?section=article&articleid=1595 (accessed on 29 August 2014).
- Sidhartha Banerjee. “Quebec Bans Twitter from Courtrooms.” Globe and Mail. 14 April 2013. Available online: http://www.theglobeandmail.com/news/national/quebec-bans-twitter-from-courtrooms/article11197529/ (accessed on 29 August 2014).
- English summary available at: Revital Hovel. “Panel: Israeli Judges Can’t ‘friend’ Attorneys on Facebook, LinkedIn.” Haaretz. 2 February 2014. Available online: http://www.haaretz.com/news/national/.premium-1.571879 (accessed on 29 August 2014).
- See Part II of this article.
- See US Department of Defence. “DoD News Briefing: Secretary Rumsfeld and Gen. Myers.” News transcript; 12 February 2002. Available online: http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2636 (accessed on 29 August 2014). [Google Scholar]
- In Donald Rumsfeld’s words .
- Account/Privacy Settings/Search and unchecking the Public Search Results box. This is by no means to say that the profile could still not be found.
- Account/Privacy Settings/Applications and Websites/Instant Personalization Pilot Program, click on the Edit Setting button, and uncheck the box.
- Vindu Goel. “Facebook to let users limit data revealed by log-ins.” New York Times. 1 May 2014. Available online: http://www.nytimes.com/2014/05/01/technology/facebook-to-let-users-limit-data-revealed-by-log-ins.html (accessed on 29 August 2014).
© 2014 by the author; licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution license (http://creativecommons.org/licenses/by/4.0/).
Eltis, K. Does Avoiding Judicial Isolation Outweigh the Risks Related to “Professional Death by Facebook”? Laws 2014, 3, 636-650. https://doi.org/10.3390/laws3040636
Eltis K. Does Avoiding Judicial Isolation Outweigh the Risks Related to “Professional Death by Facebook”? Laws. 2014; 3(4):636-650. https://doi.org/10.3390/laws3040636Chicago/Turabian Style
Eltis, Karen. 2014. "Does Avoiding Judicial Isolation Outweigh the Risks Related to “Professional Death by Facebook”?" Laws 3, no. 4: 636-650. https://doi.org/10.3390/laws3040636