Opinion  CJE Opinion No. 2016-09

Date:	11/22/2016
Organization:	Massachusetts Supreme Judicial Court

Letter Opinion of the Committee on Judicial Ethics

Twitter: Using Social Networking Site

You have an active Twitter account, and have requested advice concerning your continuing use of Twitter. In general, the same overarching principles and concerns stated in Letter Op. 2016-01 and Letter Op. 2016-08 apply to all forms of social media that are currently available. Different types of social media pose distinct issues, however, due to their features and the nature and extent of the audience with access to content posted by the judge. We therefore begin with an overview of how Twitter functions, before turning to the relevant ethical rules that are potentially implicated by your particular use of Twitter.

1. Twitter. Twitter is a social network that permits a user (anyone who has created a Twitter handle and posts to a Twitter account) to create and share information in the form of tweets. Tweets may be up to 140 characters and may include images or videos. Because of this element of brevity, Twitter is sometimes referred to as a "microblog." The subject of a user's posts are limited only by the user's imagination.

Twitter is meant to be shared; users follow selected other users. Each Twitter user has a homepage that includes a "feed"; the feed displays the stream of tweets a user receives from all Twitter accounts that user follows. A user may choose to post selected tweets from the feed; this is known as retweeting. When a user retweets, the twitter handle of the user who created the tweet is displayed. Unless the user indicates otherwise, the act of retweeting generally suggests that the user endorses the views expressed. A user may also "like" others' tweets.

Twitter users generally seek widespread public dissemination of their posts.  A user's posts (tweets and retweets) are viewed by others in one of two ways. Most commonly, a user's posts will show up on the feed of any person who has chosen to follow that user. A user's posts are also publicly available to any person who visits Twitter.com (whether or not a registered Twitter user) and enters the user's name. Although a user may take steps to limit access to the user's Twitter account(1),  that is rarely done, and you have not done so.

2. Code requirements.  As we noted in our opinions concerning Facebook and Linked In, judges in Massachusetts are not prohibited from using social media, but their use must comply with their obligations under the Code of Judicial Conduct (Code). These include the obligations to uphold and promote the independence, integrity, and impartiality of the judiciary; promote public confidence in the judiciary; avoid both impropriety and the appearance of impropriety in one's professional and personal life; maintain the dignity of judicial office; avoid abuse of the prestige of the judicial office; refrain from political activity; and conduct all personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office. The Code applies to judges in their private as well as public spheres, and a judge must expect to be the subject of public scrutiny that might be burdensome if applied to other citizens. As is also true with other forms of social media, each judge who uses Twitter must err on the side of caution and be aware that posts a judge-user considers neutral may nonetheless lead a reasonable person to question the judge's impartiality.  

Specific Code provisions relevant to the use of Twitter include the following:   

• Rule 1.2, which requires that a judge “shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”
• Rule 1.3, which requires that a judge “shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”
• Rule 2.2, which requires that a judge shall uphold and apply the law, and perform all duties of judicial office fairly and impartially, regardless of a judge's unique background and personal philosophy
• Rule 2.3, which requires that a judge perform all duties of judicial office without bias, prejudice or harassment.  
• Rule 2.4, which requires that a judge “shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment,” and “shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.”
• Rule 2.9, which prohibits ex parte communications.
• Rule 2.10, which places restrictions on judicial speech on pending and impending matters.
• Rule 2.11, which sets forth circumstances in which a judge must disqualify himself or herself.  
• Rule 3.1, which provides that a judge must conduct all extrajudicial activities in a manner that does not interfere with Code principles and provisions.
• Rule 3.10, which provides that a judge may not give legal advice to others.
• Rule 4.1, which prohibits a judge from participating in political and campaign activities.

3. Your Twitter account.Your Twitter account announces that you are an active judge.Your Twitter handle is the word "judge" followed by your surname, and numerous tweets include a photo of you wearing your judicial robe(2).Your posts are publicly available; you have not limited access to your account, and your posts, the accounts that you follow, and the identities of your followers are available to be seen by the public at large.

The Committee is of the opinion that, when a judge is posting publicly as a judge, the judge must be exceptionally cautious. The reason is that the public may perceive the judge’s communications to have the imprimatur of the courts(3). In general, a public, unrestricted Twitter account of an identified judge may be used only for informational and educational purposes. If the judge so desires, the account also may reflect who the judge is as a person, as well as a judge, so long that the judge is careful not to implicitly or explicitly convey the judge's opinions on pending or impending cases, political matters, or controversial or contested issues that may come before the courts. In addition, as to each piece of information revealed by the judge's Twitter account (whether it is a tweet, a retweet, a "like," the identity of an account that the judge follows, or the identity of an account that follows the judge) the judge must consider whether it would cause a reasonable person to question the judge's impartiality.

4. Your Twitter posts. Many of your Twitter posts fall into certain categories, which we consider below. In the case of retweets, we consider both the content and the source of the posts. Our answers are intended to illuminate the general application of various Code provisions. Each judge who uses Twitter or other forms of social media must, of course, consider whether the application of this advice in the judge's individual circumstances will be consistent with the Code. A judge must, for example, always consider whether a particular post or communication would be improper in light of cases pending before that judge and that judge's typical caseload.

• Posts that share upcoming and past bar events and other news of general interest to members of the Bar (e.g. the establishment of new specialty courts, the election of bar leaders, the nomination of judges). Much of this information is in the nature of retweets from bar associations, law schools, courts, and other organizations and institutions dedicated to maintaining high standards and professionalism among the bench and bar. These posts are consistent with the Code.
• Posts that advise trial lawyers on trial practice (e.g., preparing clients to testify, delivering closing arguments, conducting cross-examination). Purely educational posts are consistent with the Code, but posts that a reasonable person may regard as demonstrating personal bias or improper comment on a pending case are not. You must make certain that the posts do not reflect your reaction, whether complimentary or critical, to the in-court behavior of any readily identifiable person. Avoiding a close temporal proximity between the time that you observe the behavior and the time that you post a tweet on that subject will help ensure that such posts are perceived to be purely educational. Your posts must, of course, offer only practice tips and not legal advice.
•  Posts that report on selected cases decided by other courts, including the Massachusetts  Supreme Judicial Court and the United States Supreme Court. These posts often report court decisions concerning racial discrimination, police misconduct, or both. Some concern issues, such as assessing the credibility of police officers, which you confront on a regular basis.
  
  Reporting court decisions, even on selective topics, is consistent with the Code, but only if the reports do not compromise or appear to compromise your impartiality. To avoid conduct that a reasonable person may regard as demonstrating partiality, you must take certain precautions when reporting on cases. Tweets or retweets must be from official or neutral sources such as court websites or libraries.You must not retweet or link to case reports from persons or organizations with legal opinions that are clearly on one side of contested and highly-charged legal issues. Reports even by "mainstream media" should be avoided, as such reports may contain commentary or reaction favoring one point of view.
• Posts intended to reveal the existence of racism and implicit bias in the courts. We are, of course, aware that Massachusetts court leaders comment on and are taking steps to address these important concerns. Nonetheless, caution is required when posting on controversial social or legal issues that may come before you in the course of your judicial duties. Posts must serve a legitimate educational or informational purpose, and you must avoid posts that individually or as a pattern would lead a reasonable person to conclude you have a predisposition or bias that calls your impartiality into question.
• Posts that detract from the dignity of the judiciary and the court system. Examples include excerpts from an examination in which a defendant used profanity when addressing the judge and another reporting that a defendant threw bottles of urine and feces at a judge following sentencing.  A reasonable person may perceive these posts to be needlessly offensive, or as making light of behavior by litigants who may have mental health problems. Posts of this nature must be avoided.
• Posts that include photographs of litigants, attorneys, court personnel and other judges. In some instances, you post photographs that appear to show litigants, attorneys, court personnel, and judges in your courtroom or lobby. In other instances, you have posted photos that include children. Privacy and safety concerns require that you obtain consent from any person (or from a parent, in the case of a minor) whose image you post, unless you are retweeting a photo that was previously disseminated to the public by the press, an organization or association of judges or lawyers, or other similar source.
• Posts that generally reflect pride in your personal characteristics, background, and achievements. These posts reflect acknowledgement of and pride in your personal characteristics, circumstances in your background, and accomplishments, and are not indicative of personal bias or prejudice. It is long-settled that a judge’s gender, race, or other personal characteristics are not grounds for a reasonable person to question the judge's ability to interpret and apply the law fairly and impartially(4). These posts are consistent with the Code.

We also address the issue of Twitter accounts that you follow. Because your Twitter account is publicly accessible, the list of accounts you follow is readily available to your followers as well as anyone who visits your account at Twitter.com. Additionally, pop-up notices occasionally call attention to those you follow, even if you do not retweet from those accounts. Consequently, you must be cautious when selecting accounts to follow and avoid, for example, following the accounts of political candidates or parties.  

5. Conclusion.  As we observed at the outset, the same overarching considerations apply to all forms of social media, but different types of social media may raise distinct issues and require distinct cautions. The use of Twitter poses special challenges, especially where the judge maintains a public, unrestricted account, and posts as a judge. For the reasons stated above, in some respects your current use of Twitter is consistent with the Code, but in others, it is not.  

(1) This is known as a "protected account"; in such an account, the user's posts, the identities of those a user follows, and the identities of those who follow a user, are not visible to the public. However, as with other forms of social media, a Twitter user must assume that all communications are potentially public.  

(2) We do not offer an opinion today on the use of a Twitter account by a judge who does not disclose his or her occupation as a judge, other than to note that the Code, of course, applies to judges in their private as well as public spheres. We also do not offer an opinion today on a judge’s use of a private or restricted Twitter account. 

(3) The risk is heightened because courts have official Twitter accounts, which are used for outreach, education, and information. See http://www.mass.gov/courts/social-media-policy.html

(4) Courts have conclusively rejected the repugnant view that a judge’s gender, race, or ethnicity is evidence that the judge cannot administer the law fairly. See e.g., MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 138 F.3d 33, 37 (2d Cir. 1998) (a suggestion that a judge cannot administer the law fairly because of the judge's racial and ethnic heritage is extremely serious and should not be made without a factual foundation going well beyond the judge`s membership in a particular racial or ethnic group); Commonwealth of Pennsylvania and Raymond Williams v. Local Union 542, International Union of Operating Engineers, 388 F. Supp. 155, 181 (E.D. Pa. 1974) (Judge A. Leon Higginbotham famously observed that “[white] litigants are going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations”).