A few months ago, a Tennessee judge who was going through “a rough time” in his life, was publicly reprimanded for sending inappropriate messages to women on social media platforms. Some of the messages pictured him in a judicial robe. D. Weiss, “Judge is reprimanded for ‘flirtatious to overtly sexual social media messages” (ABA Oct. 12, 2020). In D. Weiss, “Judge is sanctioned for rainbow flag and congratulatory Facebook posts” (ABA Apr. 17, 2020), sanctions against a Texas judge were described. According to the article, the judge displayed a rainbow flag in her courtroom and used Facebook to congratulate winning lawyers. The State Commission on Judicial Sanctions issued both a private warning and a public admonition. The Commission relied on the prohibition against using the prestige of judicial office to advance private interests. The judge reportedly asserted First Amendment rights and challenged alleged selective enforcement, and the author reports that the judge has appealed. Id.
In Maryland, judges have the advantage of the Maryland Judicial Council’s Workgroup on Judicial Social Media Policy, Guidelines Concerning the Use of Social Media by Judges and Judicial Appointees of the Maryland Judiciary (Nov. 16, 2016), and several other resources to guide their use of social media. M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 515, passim. According to the Maryland Commission on Judicial Disabilities 2019 Annual Report, one Maryland judge was issued a warning for an inappropriate social media posting during the election process. Id.
Maryland authorities make it clear that judges are permitted to use social media but must do so with caution. A few of the concerns include the appearance of impropriety and security issues when, for example, locational information about a judge or judge’s family is posted.
Maryland guidelines suggest that usage be minimized, and accounts should be monitored, among other precautions. They also suggest that a judge’s friends and family members should be made aware of the limitations with respect to their posts. Further, they warn that blogs, tweets, and online groups may unknowingly transmit posts to persons with whom a judge should not be communicating, such as parties or advocates in pending cases. Additionally, they caution that “liking” a product could be viewed as an endorsement by the judge. They also provide detailed guidance concerning “friending,” especially with lawyers.
“If the rules governing the use of social media were a traffic light, it would be yellow.” Berman, “ESI in Maryland Courts” at 515.