Moderating Discussion on Local Public Access Radio Station

July 1, 2005

CJE Opinion No. 2005-5

You have asked the committee whether it is permissible to cohost a show on your community's public access radio station on the development of wind power as an energy resource. The station has a low power signal and reaches a limited audience in a certain section of the county in which you reside. You indicate that you would, more or less, be moderating the discussion and not taking an advocacy position. The guests may include representatives of groups that are pro or con on the issue from Cape Cod and from a town in your county, approximately forty miles from where you reside, where wind energy is a subject of significant interest. You also state that you vacation on Nantucket and are thus aware of, and interested in, the topic. To the best of your knowledge there are no pending cases in the Commonwealth concerning the issue, although you acknowledge that the loser of the so-called Cape Wind debate is likely to litigate.

The applicable sections of the Code of Judicial Conduct are Sections 3 B (9) and 4 B. Section 3 B (9) provides in relevant part that, with certain exceptions that are not at issue here, "a judge shall abstain from public comment about a pending or impending Massachusetts proceeding in any court." Section 4 B provides that, "[s]ubject to the requirements of [the] Code, a judge may speak, write, lecture, and teach concerning legal and nonlegal matters and may participate in legal and nonlegal activities."

It is both permissible and desirable for judges to participate in public discourse. Judges need not live in ivory towers. Section 4 B recognizes this reality. That said, however, there is a certain tension between appropriate participation in nonlegal activity and conduct that is proscribed by the Code. "The goal of a system of judicial restrictions should be to draw the line between those non-judicial activities that enrich, or at least are harmless to, the judiciary and those that actually detract from or interfere with the business of judging. "J.M. Shaman, S. Lubet, § J.J. Alfini, Judicial Conduct and Ethics § 10.07, at 314-315 (3rd ed. 2000).

Since no wind power case has actually been filed to date, your question requires consideration of the meaning of the word "impending" as used in Section 3 B (9). The commentary to this section states that a case is impending for purposes of the section "if it seems probable that a case will be filed." See also J.M. Shaman, S. Lubet, § J.J. Alfini, Judicial Conduct and Ethics, supra at § 12.05 (discussing meaning of "impending" in context of judicial appointment and confirmation process). A controversial local issue may be considered to be impending if "there is a reasonable likelihood that litigation concerning the issue could be filed." ABA Annotated Model Code of Judicial Conduct 159 (2004), citing, among other things, Michigan Standing Committee on Professional and Judicial Ethics No. J1-52, 1992 WL 512422 (1992) (precluding judge from signing resolution asking local government officials to take action regarding extremely controversial plant closing where lawsuits arising from closing could be filed). Nevertheless, abstract issues, even critical ones that are likely to come before a court in some form or shape, lack the justiciable characteristics of a case until they are embodied in a factual dispute of a type that is capable of judicial resolution. J.M. Shaman, S. Lubet, § J.J. Alfini, Judicial Conduct and Ethics, supra at § 12.05, at 424. An impending case, therefore, involves a dispute that has crystalized to the point where judicial resolution is both possible and probable. Such a dispute may be termed impending whether or not a case has been filed. Id.

Unfortunately, the applicable standard is nuanced enough that a definitive answer from the committee is impossible. In applying the above guidelines to your circumstances, however, you should consider whether you would be moderating a generalized discussion regarding the merits of wind power as an alternative energy source as opposed to a debate that has crystallized into a specific locus that experience suggests is likely to culminate in litigation. You have noted that the loser in the Cape Wind debate is apt to initiate court action. You also know that the issue of wind power is a live issue in a town in your county. Given this context, you should also be cognizant of the identity of the guests and their respective interests and positions. If the participants are likely to be prospective litigants or would be advocating for parties in a controversy that is likely to be the subject of court action, the committee advises that moderating the program would not be consistent with the Code's requirements.

If you choose to moderate the program, avoiding an advocacy role is necessary. While this is your intent, you should be mindful that radio "talk shows can often be freewheeling, rough-and-tumble affairs, [and thus] your duties as host might require you to come to the defense of a guest or to correct misstatements or improper comments of either guests or callers, and, in the process, to take, or appear to take, a position that you had no intention of taking when the program began." CJE Opinion 2002-16 (advising that, within certain guidelines, judge permitted to host live call-in talk show on local cable television station sponsored by organization created by and for gay, lesbian, bisexual, and transgender community). In so doing, you might be perceived as advancing the agenda of others in violation of Section 2 B of the Code, even though that is not your intention. Id. In addition to these concerns, you should also consider whether it is likely that the show may be taped and rebroadcast, and, if so, for what purpose. Rebroadcast of the program could occur at a time when a dispute that was sufficiently abstract at the time of the initial broadcast has become sufficiently concrete to preclude your ability to act as a moderator.

You must decide for yourself, based on all the facts available to you, how the principles and caveats expressed in this opinion apply to your situation.