By now, social media is a staple of American life. Don’t have a Facebook page, avoid a Twitter account, or stay away from Snapchat, and you are isolated as the world races by. For court professionals, this poses a particularly perplexing dilemma. Can court professionals separate their online social identity from their careers with the court? Does this mean that courts get veto power over one’s online social community?
NACM Canon 1.2 calls for court professionals to “avoid activities that would impugn the dignity of the court.” Canon 4.1 also advises that “engaging in any political activity is done strictly as a private citizen and only in accordance with state law or court rules,” and to “participate only during non-court hours, using only non-court resources.” By inference, the Code presumably assures us that, so long as employees avoid declaring that they work for a court, make social media comments during non-business hours, and use no court resources (i.e., basically act as private citizens), they should be ethically beyond reproach. The Canons do lead to the questions, what does “impugn” mean, and what is the definition of “court”? Ultimately, what can a court employee truly expect when he or she ventures onto a social-media platform?
These questions have an air of immediacy as the intersection between politics and social expression may be changing even as this column is being prepared. This last August, the U.S. District Court in Washington, D.C. handed down a preliminary injunction holding in abeyance portions of the U.S. Administrative Office of the Courts’ newly revised Code of Conduct. The injunction (at least temporarily), permits more extensive political activity, specifically for court employees who are not able to “influence judicial decision-making or the handling of individual cases,” and whose political activity “would do little to impugn the integrity or impartiality of the judicial branch in the public’s eye.”1
A Word of Warning
The current political landscape is so polarized and volatile that it would be easy for readers to assign specific partisan positions to the characters in the scenario below, Riley Williams and Judge Gary Garrison. I have attempted to keep their two political positions fungible, and I implore readers to analyze the scenario in that same light. Political persuasions should be irrelevant; the issue here is the court’s relationship with social media.
Riley Williams is aware that she and Presiding Judge Gary Garrison are on opposite ends of the political spectrum. Riley feels strongly that she has a right to express her opinions on the state of society. If those opinions wash over into the political arena that should be okay just as long as she posts her opinions on social media as a private citizen and not as a court official.
Carefully crafting an accommodating approach, Riley creates a private Facebook profile using only the moniker “R. Williams” and displays almost no personal information. She never mentions the word “court” or her role in any of her posts or comments that she makes using the profile.
Despite her attempts at anonymity, Judge Garrison confronts her over some comments she has left concerning local news articles using the profile. Riley is shocked that the judge could even spot her posts since she thought that she had established some pretty good safeguards. At first, she denies that the posts were hers, but the judge is relentless. He knows how Riley feels about some issues from offhand comments she has made around the office. The town is small enough that Judge Garrison is confident that “R. Williams” is Riley.
Riley finally admits to posting the comments, but counters that her strings are as a private citizen. She proudly points out that none of the posts even suggest a connection to the court or her role. The court is never impugned or directly mentioned in her digital discussions.
Judge Garrison is vehemently opposed to Riley’s views. Many of her opinions are profoundly political, and he cannot abide having an individual holding such political beliefs working in his court. Sensing what is coming, Riley again protests that she has done nothing wrong. She has a right to her opinions as a private citizen. She has kept the court completely out of her remarks.
Judge Garrison responds, saying that Riley’s comments and her political beliefs directly reflect on him as presiding judge. He is the court. Riley working for the court with her beliefs impugn him and, therefore, impugn the court. The judge fires Riley.
Here to comment on the scenario are Debbie D. Spradley, trial court administrator for the Fifth Judicial District, Clackamas County Circuit Court in Oregon City, Oregon; Kathleen Schaben, court administrator for the Superior Court in Yuma, Arizona; Sara Miles, public information officer for the 20th Judicial Circuit in Florida, encompassing Fort Myers and Naples; Jacinda (“Jo”) Haynes, marshal for the Second District Court of Appeal in Lakeland, Florida; and Deborah Rivera, deputy court administrator in the 43rd Judicial District, Stroudsburg, Pennsylvania.
Is the judge synonymous with the court?
Both Deborah Rivera, Debbie Spradley, and Jo Haynes said yes, Judge Garrison, as a public figure, is the court. Debbie remarked that the words “court” or “judges,” when used in law, are often synonymous. Jo added, “If Riley serves as personal staff to the judge, some of the judge’s ethical obligations may be transferred to her.”
Kathy Schaben and Sara Miles both admitted that the question “is the judge synonymous with the court” is more difficult to answer. Kathy mentioned, “Although there are many members of the bench with varying opinions and philosophies, in a certain sense the ‘judge’ is synonymous with the court since private citizens will perceive that such a connection exists and that the judge and court are one in the same.” Sara Miles conceded that what a person might say online could end up looking bad for an employer, which in this case would be “the court.” Courts are also made up of many different programs, people, and departments, of which the judge is only one component. “I think there are a lot of layers in defining ‘court.’”
Did Riley impugn the dignity of the court?
In the opinion of both Kathy and Debbie, Riley did not impugn the dignity of the court. Kathy started her response recounting some definitions of the word “impugn.” Merriam-Webster defines it as “to assail by words or arguments; oppose or attack as false or lacking integrity.” Oxford defines it as “dispute the truth, validity, or honesty of (a statement or motive); call into question.” Based on the definitions, Kathy stated that a subjective argument could be made that Riley did “impugn the dignity of the court” if she expressed any opposing opinions. On the other hand, one must also ask, did Judge Garrison make his political beliefs public?
Kathy went on to remark, “Riley is entitled to her own political beliefs as a private citizen and should be allowed to exercise free speech. However, the balance is a delicate one and local guidance may help frame the issues.” As laid out in the scenario, Riley appears to have complied with at least part of Canon 1.2 since she avoided identifying herself as a court employee. A detail missing in the scenario: What is Riley’s role with the court? “If she has a close relationship with the judge as personal staff, court manager, or courtroom clerk, her obligation to refrain from publicly expressing political opinions may be greater when it comes to ethical standards (at least in Arizona).”
Absent other court rules prohibiting such activity, Kathy thought that Riley should be able to remain in her position. Rule 4.8 of the Arizona Code of Conduct for Judicial Employees on Political Discrimination states: “Judicial employees shall not discriminate in favor of or against any subordinate or any applicant for judicial employment on account of permitted political activities” (emphasis added).2
The scenario does raise this question: Just because something is ethical or legal, does it mean one should engage in the conduct? “Actions have consequences, and court employees should be especially thoughtful before taking actions that could have unintended consequences creating perceptions that affect the court and its dignity.”
Debbie responded that Riley took steps to disassociate herself from the court and her role as a court employee. “While it is not completely clear in the scenario presented, I am assuming that what Riley was commenting on in social media was not related to an action before the court, or the court itself, or related to her employment with the court.” Assuming there was no nexus between Riley’s social media comments and either the court or her court work, Debbie felt that Riley deserved to keep her job while continuing to post her comments on the social issues of the day.
Debbie did advise that a policy regarding judicial employee use of social media would have been helpful. “Without there being a policy, and without some type of advance warning, it is unfair to expect Riley to know that what she was doing could result in her losing her job.”
If Riley’s social-media comments were limited to typical partisan political debates (e.g., the role of government and public policy), then in Jo’s opinion, Riley did not impugn the dignity of the court. “If, however, her posts represented views generally rejected by civil society, (e.g., unlawful discrimination or vulgar language), she did. I assume that this is not the case, as the judge’s objection to her views is described as ‘political.’ Regardless, Riley could expect to be fired for falsely denying that the posts were hers.”
In Deborah’s opinion, Riley should have known what Judge Garrison’s response would have been. “She had to know what her position entailed when she signed the [the court’s] personnel policies. If she doesn’t like the limitations of her position, she should have quit. That should have been enough to not post anything.”
Sara said that the question of whether Riley had impugned the court depended on what comments Riley made. “I don’t think court employees should be posting anything that as an employee would make the court look bad. I also don’t think they should post something if it has to do with an entity the court works with because it could show a bias. Your employer does have a right to know what you are posting online especially if it’s hateful, slanderous, harmful, etc. That really goes for any job, not just courts.”
Could Riley have done more to detach her posts from the court?
Debbie, Sara, and Jo all agreed that Riley did as much as necessary to partition off her court employment from her social-media comments. Debbie noted that Riley made her Facebook account private. She also ensured that her account and comments made no mention of her job as a court employee, of the court where she worked, or of her real name since she used a shortened name as her moniker. “Riley might have tried to disguise her name further but using a pseudonym will not guarantee that a post can’t be eventually tied back to the original poster.”
Kathy concurred that none of Riley’s personal information indicated that she was affiliated with the court. “An unrelated potential concern with her detachment strategy is that Riley was initially dishonest with Judge Garrison about her Facebook posts. Even if the activity ultimately passes the ethics test, lying to her supervisor would likely put her in conflict with other applicable court rules.”
Sara cautioned that Riley probably should not have posted about local news articles that would probably draw additional attention to the posts, especially in a small town. “I understand that people want to express their views . . . but I also don’t think people should hide behind a fake name or alias.”
Deborah proposed that Riley could have used another name, but Jo warned that posting under an alias would likely circumvent Facebook and the newspaper’s policies, and possibly impinge on her First Amendment rights.
Would Riley’s position have been less perilous if the court served a major metropolitan jurisdiction where multiple “R. Williamses” could have posted comments?
Deborah, Jo, and Sara all thought that if the court’s jurisdiction was in a larger metropolitan area, there would have been lesser chance of tying “R. Williams” to Riley, and a greater chance that Riley’s comments would have gone unnoticed. Debbie commented, “Even if Judge Garrison came across the comment and thought it might be Riley, he might not be as concerned about others seeing her comment, “because in a larger metropolitan area, others would have more difficulty identifying that the comment came from a court employee just based on her name.”
Kathy agreed that Riley’s position would have been less perilous in a large jurisdiction. “As noted in the question, small towns clearly add complexity to this and similar dilemmas. In areas where everyone knows everyone (and everyone’s political leanings), it is much more difficult to fade into the woodwork and leave the link between the court employee and the opinion unconnected. Although Riley’s post would have been more difficult to identify and attribute to her, Riley must still comply with any, and all, applicable codes.”
My thanks to Debbie Spradley, Kathy Schaben, Sara Miles, Jo Haynes, and Deborah Rivera for their thoughts on this very timely question about courts and social media. No matter how you feel about courts and social media, now would be a great time to broach this topic with your court leadership. Clearly, social media is only going to become a more pervasive issue for courts in the future.
Be sure to visit the NACM ethics web page at http://nacmnet.org/ethics. You can view the entire NACM Code of Conduct, previous ethics columns, and educational ethics modules that your court or state association could use to present ethics training.
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ABOUT THE AUTHOR
Peter C. Kiefer has spent over four decades working for the courts in Oregon, California, and Arizona, as well as on rule-of-law projects in Liberia, Moldova, and Beirut. Contact him at firstname.lastname@example.org.