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.