In a recent opinion, the Massachusetts Committee on Judicial Ethics ruled that a judge may ethically maintain a Twitter account as long as the judge complies with the Code of Judicial Conduct and the judge is cautious about selecting accounts to follow on Twitter.

The opinion said that the judge requested the Committee’s advice concerning the judge’s continued use of Twitter.

The Committee found that the judge maintained an unrestricted account available to the public, that the judge posted publicly as a judge, and that the accounts the judge followed and the identities of the judge’s followers were visible to the public.

When using Twitter, the Committee said that judges must comply with their obligations under the Code of Judicial Conduct:

[E]ach 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.

According to the Committee, when a judge is posting publicly as a judge, the judge must be “exceptionally cautious” because the public may perceive the judge’s communications to have the imprimatur of the courts:

[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.

 The opinion went on to examine the judge’s actual tweets, categorizing and discussing them according to the nature of their content and their consistency with the Code of Judicial Conduct:

1. Posts that announce bar events and other news of general interest to the bar. Many of these posts, the committee found, were retweets from bar associations, law schools, courts, and other organizations and institutions. These posts were found to be consistent with the code.
2. Posts that advise trial lawyers on trial practice. Purely educational posts are consistent with the Code, provided “a reasonable person” would not perceive them “as demonstrating personal bias or improper comment on a pending case.”
3. Posts that report on cases decided by other courts, including the Massachusetts Supreme Judicial Court and the United States Supreme Court. The judge’s tweets often reported court decisions. Reporting court decisions is consistent with the Code, the committee said, “but only if the reports do not compromise or appear to compromise [the judge’s] impartiality.” In other words, the Committee ruled that the judge “must not retweet or link to case reports from persons or organizations with legal opinions that are clearly on one side of contested … legal issues.”
4. Posts intended to reveal the existence of racism and implicit bias in the courts. The committee said, “Posts must serve a legitimate educational or informational purpose, and [the judge] must avoid posts that individually or as a pattern would lead a reasonable person to conclude [the judge has] a predisposition or bias that calls [his/her] impartiality into question.”
5. Posts that detract from the dignity of the judiciary and the court system.The committee said, “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.” As a result, the committee said, “Posts of this nature must be avoided.”
6. Posts that include photographs from the courtroom or lobby.The judge posted photographs that appeared to show litigants, attorneys, court personnel and judges. The committee found that privacy and safety concerns require that the judge obtain consent from any person whose image he posted online.
7. Posts that reflect pride in the judge’s personal characteristics, background and achievements. The committee found these posts were found to be consistent with the Code. “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.”

The opinion also addressed the issue of the Twitter accounts followed by the judge. The concern here, the committee said, is that the list of accounts the judge followed was publicly accessible to anyone. “Consequently, you must be cautious when selecting accounts to follow and avoid, for example, following the accounts of political candidates or parties.”

In conclusion, the Committee found that “in some respects [the judge’s] current use of Twitter is consistent with the Code [of Judicial Conduct], but in others, it is not.”

You can read the ethics opinion here – 

Download (PDF, 267KB)

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