Pitfalls of Social Media for Judicial Transparency

The Bencher—May/June 2017

By John G. Browning, Esquire

Legal and political theorist Bernard Harcourt posits the theory that with the advent of social media, humans are forsaking broader freedoms for the sake of small doses of social interaction that give us pleasure. A generation raised on reality TV now yearns to be “internet famous” as we trade privacy for Facebook likes and shares, retweets, and other illusory connections. We live in what Harcourt calls an “expository society,” where privacy is no longer a core value and “all the formerly coercive surveillance technology is now woven into the very fabric of our pleasure and fantasies.” We want to expose ourselves and to see others exposed; we want to see and be seen, and to reinvent ourselves online.

A growing number of judges are embracing social media as a means of demonstrating transparency and shedding light on the judicial process, perhaps yielding to this increasingly wired world in which we live—where 78 percent of the population has at least one social media profile, and in which Twitter processes over one billion tweets every 48 hours. Learned observers like Texas Supreme Court Justice Don R. Willett have noted that “harnessing technology is indispensable to openness” and is “another fruitful way for the judiciary to engage citizens.” Yet even with the best of intentions, the road to judicial transparency is riddled with ethical potholes and resistance, and can lead to trouble for the judge who seeks to be a good “digital citizen.”

One example of a judge who assumed this mantle with the best of intentions was U.S. District Judge Richard G. Kopf of Nebraska. Kopf is a technology pioneer, having overseen the first federal trial court in America to use the internet as the exclusive method of filing in all civil and criminal cases when the “Case Management/Electronic Case Files” (CM/ECF) system was introduced. In February 2013, having attained senior status, he became one of the very few judges (state or federal) to join the blogosphere when he launched his blog, “Hercules and the Umpire.” Kopf made it clear from the very beginning that the point of his blog was to help bring transparency to the role of federal judge. In an August 2015 interview with the National Law Journal, he elaborated on how blogging could enhance the public perception of the judiciary:

Canon 4 of the Code of Conduct for United States Judges, and the related commentary explicitly permits and encourages judges to write and speak about legal subjects. What federal judges really do is a mystery to laypeople and even to many lawyers. Revealing who we are, how we think, what we do, and why we do the things we do is far better than treating the federal judiciary as a secret medieval guild… In short, properly done, the public’s perception of the federal judiciary is enhanced when judges speak and write candidly about our courts.

Kopf regularly courted controversy with his blogging. During the government shutdown in 2013, he proclaimed, “It’s time to tell Congress to go to hell.” In another post, he recommended that U.S. Supreme Court Justice Anthony M. Kennedy “zip the pie hole shut” regarding such matters as solitary confinement. After the Supreme Court’s Hobby Lobby ruling, in which it held that stores were persons validly protecting their religious beliefs in denying employees insurance coverage for birth control, Kopf posted that the Court should “STFU.”

Posts such as these received national attention, often unfavorable. In early 2014, Kopf announced he was ending the blog, only to return to it shortly thereafter. But the criticism sometimes found its mark. In July 2014, Kopf posted a lengthy email from an unnamed lawyer who implored him to stop blogging. The anonymous lawyer pointed to several of the more controversial posts and the reaction they had stirred up, and asked, “How does such attention and reaction create an appearance that assists the public’s acceptance of the law, help people trust judges, foster faith in our system, and advance the cause of the delivery of justice?”

Yet it was not until a July 6, 2015, post about U.S. Senator and Republican presidential candidate Ted Cruz that Kopf’s blog would pass the point of no return. Cruz had stated that he would support a constitutional amendment that would subject U.S. Supreme Court justices to periodic judicial retention elections, revoking their lifetime tenure. Kopf wrote that Cruz was a “right-wing ideologue” whose “extreme proposal” and attack on lifetime tenure made him “demonstrably unfit to become president.” Reaction from the public and judicial ethics scholars alike was swift, and Professor Orin S. Kerr (among others) pointed out the ethical quicksand into which Kopf had blundered. Kerr referred to Canon 5 of the Code of Conduct for Federal Judges, which states, “A judge should not…publicly endorse or oppose a candidate for public office.”

Ultimately, Kopf admitted that he had crossed the line. He later apologized to Cruz, and called that post “my most embarrassing error.” Kopf ended his blog on July 9, 2015, saying that he had learned from Chief Judge Laurie Smith Camp, of the U.S. District Court for the District of Nebraska, that the “great majority” of court employees felt that “Hercules and the Umpire” had become an embarrassment to the court. Despite this, Kopf remains bloodied but unbowed on the subject of blogging and judicial transparency. He strongly encourages other judges to take up the cause of blogging and using social media platforms like Twitter, saying, “They will do far more good than harm if they do so.” He added, “Properly done, the public’s perception of the federal judiciary is enhanced when judges speak and write candidly about our courts.”

Certainly, Kopf’s blogging had its low points, yet its admirable underpinnings and noble aspirations for pulling away the curtain that cloaks judicial decision-making and the judge’s role in general remain as valid as ever. The public perception of federal courts is as troubling and uninformed as it has ever been, thanks in part to an increasingly polarized political environment. At its best, “Hercules and the Umpire” demythologized federal judges and gave readers rare insight into their humanity.

Another cautionary tale of judicial transparency in the social media age is Judge Michelle Slaughter. When she took office as presiding judge of the 405th Judicial District Court in Galveston County, Texas, Slaughter vowed that she would fulfill her campaign promise to promote transparency and educate the public about the courts. One of the primary ways she chose to achieve these goals was to maintain a public Facebook page for the court. It featured a photograph of the Galveston County Courthouse as well as one of Slaughter in her judicial robes, and it contained public information about the court. Any comment Slaughter posted properly identified her, and any comment relating to the court’s schedule or cases was no different than what visitors to the public site could glean from the court’s online docket.

On April 26, 2014, Slaughter posted the following about a high-profile criminal jury trial that was scheduled to begin on April 28, 2014: “We have a big criminal trial starting Monday! Jury selection Monday and opening statements Tuesday morning.” Similar posts that were mere factual statements followed. On April 30, 2014, defense counsel filed a motion to recuse Slaughter from the case, along with a motion for mistrial, claiming that she had improperly commented about the trial on the Facebook page. The recusal motion was ultimately granted, and the case was transferred to another court.

The defense attorneys brought a judicial conduct complaint against Slaughter. Among other charges, she was accused of violating Canon 3B of the Texas Code of Judicial Conduct, which states, “A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge’s court in a manner which suggests to a reasonable person the judge’s probable decision on any particular case.” The Commission on Judicial Conduct issued a public admonishment of Slaughter in April 2015. Slaughter appealed the sanction, and received a new trial before a Special Court of Review, comprised of three appellate justices appointed by the Supreme Court of Texas. The Special Court of Review exonerated Slaughter, agreeing with a defense expert on social media and legal ethics that her goal of educating the public about the events occurring in her court was consistent with the Preamble to the Code of Judicial Conduct, which calls for judges to “strive to enhance and maintain confidence in our legal system.” (Full disclosure: The author served as the defense expert.) Among other observations, the court noted that Slaughter’s Facebook posts regarding the case consisted of mere factual statements that did not go beyond what any visitor to her courtroom could have witnessed firsthand, and that they were not suggestive of her probable decision.

As these examples illustrate, even judges with the noblest of intentions face risks in using social media to promote judicial transparency. Judges should exercise caution in using social media, just as they should in more traditional avenues of communication. But judges should also be connected to the citizens whom they serve, not isolated from the digital town square where over three-quarters of the population congregates.

John G. Browning, Esquire, is a shareholder with the Dallas, Texas law firm of Passman & Jones, and is a Master in the William “Mac” Taylor American Inn of Court. He is a frequent author and speaker on issues involving technology and the law.

© 2017 John G. Browning, Esq. This article was originally published in the May/June 2017 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.