Judges are people too. They have spouses and children and long-lost high-school boyfriends. They have egos and ambitions, and some of them also have expensive election campaigns to finance. They are bombarded by requests to join Facebook, LinkedIn, and Twitter. And why shouldn't they? The judiciary is the only branch of the federal government with a negligible social-media presence. Sure, there are some unofficial Facebook fan pages ("Justice Scalia: defending the constitution, defending America") and unverified Twitter accounts (@USSupremeCourt), but there's nothing official but the sound of silence. Meanwhile, a full third of members of Congress tweet, the White House Twitter feed has 1.7 million followers. More than 8 million people "like"Barack Obama on Facebook. Americans constantly complain that the courts lack the transparency of the other branches. So wouldn't an ongoing judicial Twitter feed reassure us that our justices aren't hiding in a monastery, covered in bubble wrap?
Of course judges—even elected judges—are unlike public officials in the other two branches because they are supposed to be impartial and impervious to influence. Every tweet and Facebook update can be scoured for hints of bias and corruption. Every "friend" can be potentially compromising in some future litigation. Is there really any benefit to judicial transparency when the judicial ideal is an empty vessel? That's why judges approach the question of social media with trepidation.
It's hard to imagine judges—who work in a profession that generally requires 160 pages, plus footnotes, to say anything at all—communicating in 140 characters or fewer. But assuming it can be done, should judges do it? Last year the American Bar Association's judicial division held a panel titled "Courts and Media in the 21st Century: Twitterers, Bloggers, the New Media, the Old Media, and What's a Judge to Do?"
In an August 2009 article in Texas Lawyer, Miriam Rozen laid out some of the arguments for judicial use of social media. For instance, Susan Criss, a state judge in Texas, has a Facebook page she's used to friend lawyers for both networking and possible future campaign purposes. Criss gets around the ethical rules prohibiting ex parte communications between judges and lawyers by asking lawyers to "de-friend" her when they're trying cases before her. (They presumably can "re-friend" her when the case is over.) She has also used her Facebook account to monitor status updates by some of the lawyers who appear before her—one evidently asked for a continuance because of a "death in the family" while detailing drinking and partying on Facebook.
The same article describes how another Texas judge, Kathryn Lanan, requires that every youngster who appears before her in juvenile court friend her on Facebook or MySpace so she can keep track of their activities. If a juvenile in her charge posts anything about sex, drugs, or gangs, she hauls them back into court for a compliance hearing. Constitutional free-speech questions aside, there's no doubt that some judges are finding social media an indispensible window into the lives of their charges.
But the ethical questions linger. In 2009, New York, South Carolina, and Florida each released judicial-ethics opinions on the subject. A North Carolina judge was reprimanded by his state judicial-standards commission last year for posting detailed status updates like "two good parents to choose from" in a custody case over which he was presiding. One of his "friends," a lawyer in the case, posted, "I have a wise Judge." Icky, yes. But unethical? The commission thought so.
In Florida, according to the New York Times, the judicial-ethics advisory committee issued an opinion last winter recommending against "judicial friending" and said a judge cannot friend lawyers who may appear before them or accept friend requests from those lawyers. The reason for the rule was that these relationships "convey to others the impression that these lawyer 'friends' are in a special position to influence the judge."
In the wake of that advisory opinion, Florida judges were forced to dramatically change their Facebooking habits. According to the Orlando Sentinel, there was a mass exodus of judges from Facebook, and lawyers were de-friended left and right. Many of these judges said they felt the committee attached far too much importance to Facebook friendship. A Facebook friend is hardly a trusted professional adviser. Perhaps that's why the advisory committee on standards of judicial conduct of the South Carolina Judicial Department issued an opinion allowing magistrate judges to be on Facebook and to be friends with law enforcement officers and employees—so long as they don't discuss anything related to the magistrate's duties.
If, as these examples illustrate, judges can figure out how to use Facebook or Twitter while still doing their jobs ethically and effectively, why are ethics committees so hopped up about it? It's because judicial ethics are so often about appearances, not reality. It's the appearance of impropriety you want to guard against, and if social media is about anything, it's about making complicated social relationships look simple. And just one careless tweet or status update is enough to compromise a whole career.
There is another reason, of course, that judges may not be keen to tweet or update their status: Because they'll look like idiots. Consider last week's oral argument at the Supreme Court in a case about privacy and pagers. The justices were considering whether sexy text messages sent and received by a California cop on a department-issued pager were private, when Chief Justice John Roberts, the youngest justice, asked: "What happens, just out of curiosity, if he is on the pager and sending a message and they are trying to reach him for, you know, a SWAT team crisis? Does the one kind of trump the other, or do they get a busy signal?" Justice Anthony Kennedy suggested that in such cases, perhaps the caller "gets a voice message that says: 'Your call is very important to us. We will get back to you.' "
The blogosphere had a great time after that argument, sending up the court's cluelessness about the very technologies it is supposed to be ruling on. But even Ashton Kutcher might have a hard time detailing the lines between private and public, friend and "friend," opinion and influence out there on the Internets. It will take years for the courts to sort out questions about new technology and privacy. And by the time they do, Tweeting and Facebooking will be passé. When, decades from now, Chief Justice Suri Cruise is finally permitted to tweet her 112-character dissents, the younger judges will all snicker that she is hopelessly out of touch.