By: Molly Codeanne
Parents always tell their children that what they say, post, like, and share on social media sticks around forever and can have unintended consequences down the line if you are not careful. Judges must heed this advice and exercise heightened caution when engaging in social media as the courts have disqualified more than one judge from presiding over a case since April of 2022. There is a fine line between posting in support of a popular and respected view and posting in a way that could lead to a finding of partiality or prejudice, especially in today’s heated political climate. Most recently, Judge Josephine Buckner was disqualified from presiding over a series of cases against several protestors, in connection with the Breonna Taylor case. Judges, who hold positions of power and privilege, must look forward to the future before posting and consider the consequences of how his or her actions on social media may be construed.
Josephine Buckner was scheduled to preside over cases against 26 protestors who had blocked an overpass during the Breonna Taylor protests. Among other reasons, her removal stemmed from posts on Facebook that she had shared, or reposted, prior to becoming a judge on the Jefferson District Court of Kentucky. An August 2020 post stated that, “today is a great day to arrest the cops who lied in getting a search warrant for Breonna Taylor’s home, the cops who killed Breonna Taylor and the cops who covered it all up.” An additional shared post noted that the grand jury committed a “grave error.”
The extent to which judges may participate in social media is determined on a jurisdictional and state law basis, using ethical advisory opinions and various state rules. However, judges must conform their behavior to the ABA Model Code of Judicial Conduct, which provides additional ethical guidelines. First, Canon 1 states that judges “shall uphold and promote independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Second, Canon 2.2 provides that “a judge shall uphold and apply the law and shall perform all duties of judicial office fairly and impartially.” Finally, Canon 2.4 states that “(A) a judge shall not be swayed by public clamor or fear of criticism, (B) a judge shall not permit family, social, political, financial or other relationships to influence the judge’s judicial conduct or judgement, [and] (C) a judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.” While these rules do not expressly state how judges are to conduct themselves on social media, they are directly related to judges’ use of social media.
State ethics and advisory opinions vary widely on this subject. Many states provide that judges may maintain friendships with individuals on social media, to the same extent that they conduct in-person relationships. However, a minority of jurisdictions state that judges cannot maintain social media friendships with lawyers or other individuals who may appear before them in court. The ins and outs of these relationships and resulting actions on social media are extensive. In an advisory opinion, the Massachusetts Supreme Judicial Court stated that if a lawyer is a former Facebook friend, the judge should consider the nature of the online relationship and the “personal information the judge posted that the lawyer might use to convey the impression of special access to the judge.” Not only are posts and shares on social media seen as a potential danger for judges, but the friendships themselves can pose a threat of impartiality.
While holding a privileged position, judges are expected to remain impartial on all political and social issues and should anticipate statements and posts to be examined by the public. While Judge Buckner was reposting statements with which most would agree, Canons 1 and 2.2 of the Model Code of Judicial Conduct state that judges must promote the impartiality of their role and perform all duties of the judiciary impartially, respectively. When judges post on social media and refer to a specific event or aspect of the law, such a post will often be considered impartial and, thus, violate their duty as a judge. Social media is not going away anytime soon and, therefore, when holding such an esteemed position, judges must sacrifice their right to express specific views on these platforms to remain in line with the applicable Canons of judicial conduct.
In today’s hyper-polarized political climate, judges’ posts are under more scrutiny than ever, and the judiciary must resist the temptation to express their own political views on social media. Under Canon 2.4, a judge is not permitted to be swayed by public clamor, influenced by social or political relationships, or convey the impression that he or she is influenced by any person or organization. Judge Buckner’s shared posts on Facebook directly violated Canon 2.4. As it stands in this case, the fact that she shared these posts prior to becoming a judge does not vitiate the fact that the message was conveyed. However, this line of thinking brings about a greater question of how we will vet new generations of judges, themselves presently active on social media. The process of vetting each judge’s social media history on a case-by-case basis will continue into the future and, thus, may have adverse effects on the next generation of judges.
As parents tell their children, anything you post on social media is permanent and may have unintended, future consequences. Due to the nature of the cases over which she was set to preside, Judge Buckner’s posts display valid concerns of impartiality. While social media has many benefits and judges may utilize these platforms to “demystify the judiciary,” the widespread dissemination of posts and society’s hyper-analyzation of every click a judge makes (even before they take the bench) means that judges must be cautious to remain impartial.
It may seem inherently obvious that judges must exercise extreme care when engaging in social media. A presence on social media is necessary in today’s society, even for judges, so that they may remain connected with friends and family members. However, one “thumbs up,” “heart” or share can unintentionally indicate support of a social or political issue. Both the public and the judiciary are focused on the actions of judges, to ensure that the Codes of Judicial Conduct are upheld. This has, and will continue to have, the effect of limiting the cases over which certain judges may preside.
Student Bio: Molly Codeanne is a second-year day student at Suffolk University Law School. She is a staff writer on the Journal of High Technology Law. Molly received a Bachelor of Arts Degree in Political Science at The College of the Holy Cross.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
