Should Judges involve themselves with social media, maintain or contribute to blogs, have Twitter accounts or otherwise utilise the numerous communication platforms offered on the Internet? This post will consider some of the issues surrounding judicial engagement with social media and particularly judicial blogging
In a Twitter exchange @cearta posed the question “should judges be warned off blogging”, referring to Lucy Reed’s post on her Pink Tape blog which was more widely published in the Guardian, reporting that guidance has been issued to all judicial office holders warning them off blogging. (For the full text see the end of this post) The answer “no” came back from @MauriceDockrell and @cearta asked “why?” @John_gilhooley joined the debate asking “why confine an understanding and interpretation of the law solely to written judgements? We don’t ban …judges from addressing law societies in(sic) universities, why ban the written and not the oral.” @MauriceDockrell replied “Because in front of law societies etc judges can speak ex tempore whereas in writing can be held to account…look at the difficulty Carney J got into a few years ago – blogs etc would cause controversy.”
I must confess that I am unfamiliar with Carney J’s difficulties but the exchange made some interesting points about judges and “out of court” discussions in a public forum – because blogs, tweets and other social media platforms are certainly public.
The debate has arisen as a result of the guidance that has been issued to the English judiciary, a few of whom maintain blogs. The story broke in a blog run by an English Magistrate. It spread quickly through the English blawgosphere – see for example Legal Cheek and Obiter J. An important paragraph of the guidance reads as follows:
“Blogging by members of the judiciary is not prohibited. However, officer 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.”
Adam Wagner at the UK Human Rights Blog can be relied upon for a thoughtful analysis although it is not hard to anticipate where he might stand on the issue.
“The main problem here is the starting point. It appears that someone has identified a problem, being the potential (but until now, only theoretical) that judicial blogging may undermine public confidence in the judiciary.”
I think Adam is correct in using the word “potential” because I am unaware of any research suggesting that there is such a problem and that it will lead to the undermining of public confidence in the judiciary. But by the same token it cannot be said that there is an absence of risk that social media engagement by a Judge could go horribly wrong. Some examples from the US appear below. A hasty or badly expressed tweet could have regrettable consequences. At least a blog may be subjected to a more deliberative process with opportunities to review and edit – or to decide not to publish a post at all. But certainly, given the quality of information persistence that characterises the Internet, the position should be that once published the contents of a tweet, a Facebook comment or blog post cannot be withdrawn.
But risks aside, why shouldn’t Judges blog about aspects of their jobs, professional issues and the like as long as nothing is said that might compromise the appearance of neutrality in a case. Should a Judge be prohibited from blogging about topics associated with the judicial role such as the history of the judicial robes (an aspect of the job unrelated to any suggestion of partiality on a case) or topics unrelated to the law such as the habits of the local sparrows (a different form of twittering), the Albigensian Crusade, the Hundred Years War or the deeper mythological themes underlying Tolkien’s Middle-earth writings? And what possible objection could there be to the Judge who blogs or writes on such subjects being identified as such. One might extend the topics into the professional sphere. There are many uncontentious areas where a Judge may inform public understanding of the judicial role and that of the Court. As Obiter J puts it
The educational aspects of judicial blogging are emphasised by Adam Wagner:
“But why not start from a different position, that judicial blogging could be a force for good, a way to bring the public closer to the law? This seems to be the starting point in the United States, where the President of the National Judicial College has said this:
“As long as judges are using blogs to enhance public education and understanding of our justice system and not compromising the integrity of cases, then judicial blogs could serve and promote a greater understanding of the challenges and difficulties judges face in advancing justice”
Adam closes with the suggestion by Lord Neuberger,the newly appointed President of the UK Supreme Court that the Judiciary should:
“foster the already developing community of active informed court reporting on the internet through blogs, and tweeting; we should support the responsible legal journalists; we should initiate, support, encourage and assist public legal education. The great strength of our society is that it is built on the competing voices of free speech. Justice to be truly open must join its voice to the chorus; and must ensure that inaccurate or misleading reporting cannot gain traction.”
It cannot be said, however, that the statement is an endorsement of judicial blogging. But it does clearly call for a better informed debate about the role and activities of the Courts.
So what is happening elsewhere in the common law world? What guidelines are available that may assist in determining the approach that may be adopted? Certainly most jurisdictions have a set of guidelines for judicial behaviour.
Australia and New Zealand
Australian and New Zealand judicial guidelines recognise the role of the Judge in an open society, and the shift in perception from the earlier position that judges should undergo civic and social isolation upon appointment to one of more open participation and engagement. But the guidelines also emphasise the need for care and restraint in public comment.
The Australian Institute of Judicial Administration has published The Guide to Judicial Conduct (2nd ed. 2007). There are no specific provisions about engagement with social media but there is a section about activities outside the Courtroom. The section dealing with Public comment by Judges (5.6) and Participation in Public Debate makes useful reading.
Guideline 5.6.1 states:
5.6.1 Participation in public debate
Many aspects of the administration of justice and of the functioning of the judiciary are the subject of public consideration and debate in the media, at public meetings and at meetings of a wide range of interest groups.
Appropriate judicial contribution to this consideration and debate is desirable. It may contribute to the public’s understanding of the administration of justice and to public confidence in the judiciary. At the least, it may help to dispose of misunderstandings, and to correct false impressions.
Considerable care should be exercised to avoid using the authority and status of the judicial office for purposes for which they were not conferred. Points to bear in mind when considering whether it is appropriate to contribute to public debate on any matter include the following:
- A judge must avoid involvement in political controversy, unless the controversy itself directly affects the operation of the courts, the independence of the judiciary or aspects of the administration of justice;
- The place at which, or the occasion on which, a judge speaks may cause the public to associate the judge with a particular organisation, group or cause;
- There is a risk that the judge may express views, or be led in the course of discussion to express views, that will give rise to issues of bias or prejudgment in cases that later come before the judge even in areas apparently unconnected with the original debate; A distinction might be drawn between opinions and comments on matters of law or legal principle, and the expression of opinions or attitudes about issues or persons or causes that might come before the judge;
- Expressions of views on private occasions must also be considered carefully as they may lead to the perception of bias;
- Other judges may hold conflicting views, and may wish to respond accordingly, possibly giving rise to a public conflict between judges which may bring the judiciary into disrepute or could diminish the authority of a court;
- A judge, subject to the restraints that come with judicial office, has the same rights as other citizens to participate in public debate;
- A judge who joins in community debate cannot expect the respect that the judge would receive in court, and cannot expect to join and to leave the debate on the judge’s terms.”
The Guidelines prohibit, as might be expected, entering into debate about a decision, even to clarify ambiguity. The decision must speak for itself.
However, Guideline 5.7 deals with contributions to newspapers and periodicals and appearing on the media. These Rules could apply, mutatis mutandis to social media engagement.
Guideline 5.7 reads:
5.7 Writing for newspapers or periodicals; appearing on television or radio
There is no objection to judges writing for legal publications and identifying themselves by their title.
There is no objection to articles in newspapers or non-legal periodicals and other contributions intended to inform the public about the law and about the administration of justice generally but before agreeing to write such an article, it is desirable that the judge should consult with the head of the jurisdiction.
Judges are occasionally asked to take part in radio talk-back or television programs on matters of public interest. Such activities, if they are to take place, are best carried out by or after consultation with the head of the jurisdiction, and should usually be restricted to matters affecting the administration of justice. The matters raised in par 5.6.1 will usually require consideration.
There seems to be no objection in principle to a judge writing in a private capacity on a non-legal subject.”
Thus it seems that there is no objection to involvement in discussion about the law and the administration of justice or in writing about legal topics as long as care is exercised.
The New Zealand Guidelines for Judicial Conduct (June 2011) contain rules on participation in public debate which are not as detailed as those in Australia and read as follows:
“If a matter of public controversy calls for a response from the judiciary or a particular court, it should come from the Chief Justice or head of jurisdiction or with his or her approval. In other cases it may be beneficial to public debate for judges to provide information relating to the administration of justice and the functions of the judiciary. Such participation is desirable but requires care. In particular a judge should avoid political controversy unless the controversy is about judicial function. It is important to avoid using judicial office to promote personal views and to avoid the appearance of capture by particular organisations or causes. It is important to avoid expressing opinions on matters which may arise in litigation and which may lead to concern about the impartiality of the judge.”
Paragraphs 33 and 34 of the New Zealand Guidelines state:
“The days are past when appointment to the judiciary compelled social and civic isolation. Effective judges are not isolated from the communities they serve. Communities are not well served by judges whose personal development is arrested by judicial appointment. Judges are also entitled to private and civic lives which are not stunted or disadvantaged by office.
On the other hand, a judge’s conduct, both in and out of court, inevitably attracts closer public scrutiny than that of other members of the community. And the standing of the judiciary is adversely affected by conduct which, in someone else, would not excite serious criticism. Judges therefore have to accept some restrictions on conduct and activities as a consequence of appointment. Where the balance should be struck is a matter of reasonable difference of opinion.”
The rules relating to writing and media comment are similar to those in Australia and are covered in paragraphs 58 and 59 of the New Zealand Guidelines which read as follows:
“Articles or interviews which inform the public about the administration of justice generally are not objectionable and indeed may well be beneficial in raising public understanding about judicial function. They carry risks however if the Judge expresses views which may be taken to pre-determine issues which may arise for judicial determination or which cross into areas of political controversy. Publication in legal journals is not objectionable but requires care to avoid expressing firm views on matters which may come before the court for determination.
Participation in radio or television programmes should generally be discussed with the head of jurisdiction before an invitation is accepted.”
The United States of America
The Courts Technology Conference 2011 held at Long Beach had a session about social media and the courts although the discussion was wide ranging and included the use of social media by courts administration.
One of the presentations was by Judge Kevin Burke of Minnesota who blogs for the American Judges Association. His blog started in September 2011 and its purpose may be found here. Nearly 12 months down the track and Judge Burke is still going strong, his latest post being on August 15 2012.
Judge Burke, together with Judge Steve Leben, David Rottman and Tom Tyler are contributors to the Procedural Fairness Blog. The blog is part of a wider project details of which appear on the Procedural Fairness website. The aim of the project is stated as follows:
“We focus on helping judges and courts implement policies and practices that promote procedural fairness in courtrooms and courthouses. In addition, we look at policing, currently the focus of the majority of criminal justice research on procedural fairness, but we retain an emphasis on the courts.
We also seek to bridge the gap between academic research and actual practice. This site is a collaborative effort by judges, researchers, and university professors who share a belief that an emphasis on procedural fairness can make judges and court managers more effective decision makers, improve compliance with court orders, and increase public satisfaction with the court system. Yet we also share a desire to engage with one another—as well as a broader community—to test our ideas. So we provide a forum linking judges and court managers to the academic and research community engaged in the study of procedural fairness.
The Procedural Fairness Blog will offer a forum to discuss current issues and events through posts by founding participants, other staff from the National Center for State Courts, and periodic guest bloggers drawn from the judiciary, court management, and the academy.”
Justice Judith Lanzinger of the Supreme Court of Ohio maintains a blog entitled Justice Judy. She makes her position very clear in what may be called a “mission statement” stating the scope and purpose of her blog.
“As a former teacher and a judge, I take very seriously my obligation to fulfill the mandate in the Ohio Code of Judicial Conduct, which requires that “A judge should initiate and participate in activities for the purpose of promoting public understanding of and confidence in the administration of justice. In conducting such activities, the judge must act in a manner consistent with this code” 1.2 (Comment 6).
This blog is a carefully balanced medium for me to fulfill this obligation using the latest information technology. Studies show that today’s young people are the most plugged in generation ever. Blogging offers an opportunity to connect with these young people where they now spend most of their time: Online.
On pages of the Justice Judy blog you will find simple, straightforward explanations of judicial concepts and processes, as well as discussions about current developments in the legal profession and the law.
You will not find political commentary, interpretations of judicial decisions, or anything else that would carry even the remote possibility of violating the other judicial canons, which are in place to ensure that we have an independent, fair and impartial court system.
By allowing comments to be posted, I am able to interact with the public I serve to further the cause of an understandable and accessible judiciary. By moderating the comments, I ensure that the discussion is appropriate and thoughtful. I hope you will become a regular reader and tell me what you think.
– Justice Judy”
However, the downside of social media use by the judiciary may be seen in these examples from a post about Judicial Use of Social Media:
“A Georgia judge recently resigned after that State’s Judicial Qualifications Commission investigated the judge’s Facebook messaging with a defendant appearing in a pending matter before him.
Late last year, a New York judge was reassigned after allegations surfaced that he was updating his Facebook status from the bench and that he once took a picture of his crowded courtroom, posting it on his active, public, Facebook page.
In late 2009, Florida authorities issued a judicial ethics advisory opinion concluding judges cannot “friend” lawyers on social network websites like Facebook or MySpace. But South Carolina’s judicial ethics advisory committee concluded a judge could “friend” law enforcement officers and court employees if they were not discussing anything related to the judge’s position.
The North Carolina Judicial Standards Commission concluded in 2009 that a judge should not utilize a listserv to obtain advice on a legal topic that was applicable to a proceeding before that judge.”
In an article (or possibly a blog post) published on the National Association of State Judicial Educators website Justice Daniel J Crothers makes the following observations about the American approach:
“Can judges and court personnel make blog postings or participate in listservs?
The general answer to each of these questions is “yes,” but….
A judge’s actions are constrained by the American Bar Association Model Code of Judicial Conduct, derivations of which are in place in most United States jurisdictions. The Code requires, in some instances pertinent to use of social media, that the judge exercise reasonable direction and control over attorneys and staff who report to the judge.
The Code generally allows judges to engage in extra-judicial activities that do not demean the judicial office, that do not cast reasonable doubt on the judge’s impartiality and that do not interfere with the performance of judicial duties. Therefore, judges and court staff, like most other people, can use the internet for lawful purposes, including maintaining and using social networking tools and sites like Twitter, Facebook and MySpace as long as those uses stay clear of courts, court business and matters that frequently appear in the courts.
But the Florida Committee noted, “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.”
For example, judges have an obligation under the Code not to lend the prestige of judicial office to advance the private interest of the judge or others, nor to convey or to permit others to convey the impression they are in a special position to influence the judge. On this basis a majority of the Florida Ethics Advisory Committee concluded that a judge would act unethically by “friending” a lawyer on a Facebook page. Florida’s conclusion was based on the Facebook feature that mutual “friends” appear on each other’s page, even with the highest privacy settings invoked. At a minimum, these mutual “friends” are visible to other “friends” of the respective subscriber. Absent use of the highest privacy settings, the judge-lawyer “friend” status is viewable by all internet users.
So too are judges and staff prohibited from participating in improper ex parte communications in a pending or impending matter. This was one of the reasons for the disciplinary investigation of the Georgia judge.”
Justice Crothers concludes with the sage observation:
Until the law in your state is clarified or until you request a judicial ethics advisory opinion (if you are able), all judges and court staff using social media websites would do well to remember the advice given in the 1980s television show Hill Street Blues by dispatch Sergeant Phil Esterhaus:“Hey, let’s be careful out there…”
The Social Media Today Blog contains some examples of State rules about judicial engagement with social media:
“On June 12, 2012, the Maryland Judicial Ethics Committee published an opinion providing guidance regarding the judiciary’s use of social media. The main point of the decision is that, “a judge must recognize the use of social media networking sites may implicate several provisions of the Code of Judicial Conduct, and, therefore, proceed cautiously.”
The Florida Supreme Court’s Judicial Ethics Advisory Committee’s opinion that prohibited judges from adding lawyers who may appear before them as “Facebook Friends” demonstrated a lack of understanding of social media. If judges can be friends in the real world and join the same social clubs as lawyers who appear before them they should be able to be Facebook Friends. California, New York, Kentucky, Ohio and South Carolina have taken a different position than Florida and their rules appear to generally demonstrate a better understanding of how online relationships are analogous to real world relationships.
The Maryland Judicial Ethics Committee appears to have taken a position that generally follows California, New York, Kentucky, Ohio, and South Carolina. The Maryland Judicial Ethics Committee stated “the mere fact of a social connection does not create a conflict” while referring to online social media connections. The bottom line is that Maryland once again has demonstrated an understanding of how social media intersects with the law.”
A very helpful keynote address by Judge Herbert B Dixon at the ABA Conference in Toronto in 2011 reported by Connie Crosby highlights some of the difficulties and suggests some solutions for lawyers, jurors and judges. (There is also available the wonderful Social Media Revolution video based on Eric Qualmann’s Socialnomics with the inspiring soundtrack “Baba Yetu” composed by Christopher Tin (it is in fact the “Lords Prayer” in Swahili) that Judge Dixon used in his presentation and yes, I have used the same clip myself.)
The CCPIO New Media Survey for 2012 found as part of its survey that most judges agreed that using social media sites in both their personal and professional lives doesn’t necessarily compromise the professional code of conduct. Justice Lanzinger blogs “While students are more than comfortable with social media sites, a new national survey says more judges and courts are using Facebook and Twitter now too.”
A Nature of the Blogosphere
So what does all this tell us? The first thing is, as the New Zealand Guidelines point out, that Judges are a part of society and not aloof from it. Judges are an essential part of a functioning society under the Rule of Law. That said, Judges must keep up with changing trends and developments in society and recognise them.
Herein lies the problem. I have argued elsewhere that new technologies bring about behavioural changes that may influence shifts in values. But new technologies will not change such fundamental values as the importance of a fair trial, the need for an impartial tribunal or adjudicator and the right to be heard in a cause. These are essential properties of our shared justice system. Furthermore, it is well recognised that the Courts, of the three arms of Government, lack the power of the purse or the sword. Their legitimacy relies on public confidence. Actions by Judges that undermine that confidence, that give a suggestion of partiality, that may even unintentionally appear to give a taste that there is other than a fair system undermine public confidence. By the same token, public confidence may also be undermined by a lack of understanding of the judicial role or the law and how it works. The problem is finding the point of balance, and that is something that Judges do.
The various guidelines for behaviour suggest that there are occasions where judicial engagement outside the Court room may be welcomed but not at the expense of public confidence in the system or the erosion of trust in a judge’s performance of his or her role. That must be the primary guide for judicial engagement with social media and especially the judicial blogger.
A factor the must be taken into account is the nature of the “blogosphere.” Blogs and new media were examined by the New Zealand Law Commission in its report “The News Media Meets New Media”. The focus of the discussion was to consider whether there should be some form of regulatory framework for the blogosphere and when such framework, if any, should be engaged.
The observations of the Law Commission were informative. Irrespective of purpose, blogs are an aspect of a “new media” for information dissemination and bloggers may at times fall into the general category of “citizen journalists.”
In the chapter addressing on-line media the Commission considered blogs under the heading “The Blogoshpere – From Hard News to Gossip”. It observed
“Blogs vary greatly in terms of professionalism, readership and influence. At one end of the spectrum are hobbyists who write diary-like entries primarily for the consumption of colleagues, friends or family. At the other, are the bloggers with specialist subject knowledge in areas such as business, politics, law, the media, science and the arts. (Para 2.86)
New Zealand has an active blogging community straddling this spectrum. Among the specialist subject bloggers are respected and influential communities of legal and technology bloggers including, for example, barrister and media lawyer Steven Price (Media Law Journal), Victoria University lecturer Dean Knight (Laws 179 Elephants and the Law), Professor Andrew Geddis (Pundit), Mauricio Freitas’ technology blog, Geekzone, and Richard McManus’s seminal blog ReadWriteWeb, to name but a few. (Para 2.87)
Alongside the specialist subject bloggers there is a growing number of individual and collective blog sites whose primary focus could broadly be defined as “news and current affairs.” The blog site Tumeke! publishes rankings of many of New Zealand’s most well-known political and news blogs and since the survey began in 2007 the number of blogs included in the current affairs category has risen from 164 to 203 (Para 2.88)
In contrast with mainstream journalists in the past, bloggers frequently develop strong communities of followers with whom they actively engage. The quality of blog postings on sites like Pundit and Public Address is often matched by the calibre of the commentary they attract. A blogger’s influence is often measured not just by the number of unique viewers the blog site attracts but also by the number of participants and the number of external sites linking into it (Para 2.97)
The blog’s administrator (who is the author of the blog) sets the parameters for user engagement, deciding whether to moderate comments and where to set the boundaries around questions of tone, taste and decency. Standards and the levels of control vary widely: the internet culture’s aversion to censorship is often evident in the lack of moderation. This can sometimes see commentary descend into highly derogatory and abusive exchanges between different commentators. (Para 2.98)
At paras 2.100 – 2.110 the Law Commission examines other social media platforms.
Publication on the internet via a blog bears means “going public” and depending upon the nature of the post and its subject matter the blogger may move from an abstract discussion to commentary upon an issue of public interest or importance. In the blogosphere the line is blurred between mere information and becoming a commentator in the “new media” – akin to writing an op-ed piece for a newspaper. The only difference is that the circulation of the “newspaper” – and therefore the commentary – is worldwide.
There are other qualities surrounding Internet content that must be taken into account. (For an earlier discussion of Internet qualities see my post “Why Do Jurors Go Online” under the heading “The Internet, Information Technology and Drivers for Change”) I have already referred in this post to the persistence of information and that content on the internet is akin to the “document that does not die”. Other characteristics are those of searchability and retrievability of information – both associated with its persistence. Search engines enable the instant location of information and views expressed in the past may return as fresh as the day they were published – even although those views may have modified over the years. But debate or comment on current content may contain reference to a possibly “previous inconsistent statement”. Another aspect, to which reference has been made, is that blogs are often collaborative, and the Law Commission refers to the commentary that blogs attract. Most blog providers allow the administrator to vet and monitor comments and choose whether to post them or not, but then the debate becomes one of whether or not the administrator is indulging in unnecessary selectivity or even censorship. The blogosphere audience is in the main very wedded to concepts of free, open and vigorous speech as the Law Commission observes.
Given the nature of the Internet, this means that the judicial blogger is heading into an unfamiliar territory. Although judgments are public and are made available on-line, their publication and content are surrounded by a number of conventions, and the judge or judges are aware that the reasons for a decision will be scrutinised by academics, politicians, news media and the public. That all comes with the conventional judicial territory. By writing an opinion on a blog, the judge runs the risk of the same analysis and critique which will be accompanied by a recognition of the role that accompanies the writer rather than the expression of the view that may be contained on the content. The writer, in such a case, becomes more important than the message. Because the blog is authored by a judge, the potential problem for unfavourable comment, vigorous on-line debate or even discussion in the mainstream media becomes enhanced. These are factors that Judges must take into account if they contemplate venturing into the blogosphere.
Given the issues that have been discussed it may well be that the Senior Judiciary in England are suggesting that judges avoid engagement with blogs and social media precisely because of the risks attending upon such activity. On the other hand there seems to be a view that there should be greater engagement by the Judiciary, especially in the area of education about the judicial role and the Rule of Law. A debate about the issue can only be useful. As ObiterJ suggests “I suspect that this matter may have some distance to run.”
In the interests of completeness, the advice from the Senior Judiciary in England reads as follows
Blogging by Judicial Office Holders
This guidance is issued on behalf of the Senior Presiding Judge and the Senior President of Tribunals. It applies to all courts and tribunal judicial office holders in England and Wales, and is effective immediately.
A “blog” (derived from the term “web log”) is a personal journal published on the internet. “Blogging” describes the maintaining of, or adding content to, a blog. Blogs tend to be interactive, allowing visitors to leave comments. They may also contain links to other blogs and websites. For the purpose of this guidance blogging includes publishing material on micro-blogging sites such as Twitter.
Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary.
Blogging by members of the judiciary is not prohibited. However, officer 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. It is also recommended that all judicial office holders familiarise themselves with the new IT and Information Security Guidance which will be available shortly.
Any queries about this guidance should be directed to [name removed] at Judicial Office – Tel: 0207 [removed] Email: [removed].