Judges on Facebook: Exercising First Amendment Rights or Violating the Judicial Canons?

There is no doubt that since the inception of Facebook in 2004, various other social media networks have sprung up allowing people to share and exchange information instantly. As of the second quarter of 2015, Facebook had nearly 1.49 billion monthly active users.[1] Originally a social networking website geared towards college students, Facebook has grown to market its services to people of all ages, backgrounds, and professional occupations. As social media continues to become a part of people’s everyday lives, many have predicted that this is a long-term trend that will be continuously refined so that people turn to interacting and behaving online as they do in their everyday lives. But with this dependency on online social networking comes potential consequences that can affect many groups of people, including the legal profession.

The American Bar Association reported in its most recent Legal Technology Survey that about 62% of law firms maintain social networks. This can include, for example, LinkedIn, Facebook, Twitter and Instagram. In fact, 78% of individual lawyers maintain one or more social networks, and spend on average 1.7 hours per week using these sites for professional purposes.[2]

But what about in the courtroom? Is it ethical for a judge to use social media to comment and express his or her opinion on a case unfolding in the judge’s courtroom? Unfortunately for one District Court judge in Texas, Facebook updates about a trial over which she was presiding resulted in a reprimand by the State Commission on Judicial Conduct.

This story began during the criminal jury trial of State v. David M. Wieseckel, which was held in Judge Michelle Slaughter’s court. The defendant, Wieseckel, was charged with unlawful restraint of a child for allegedly keeping a 9-year-old boy in a wooden enclosure.

Judge Slaughter’s social media saga began a few days before the commencement of the trial when she posted on her Facebook page: “We have a big criminal trial starting Monday! Jury selection Monday and opening statements Tues. morning”. However, it wasn’t until after the first day of testimony when Judge Slaughter posted several comments on her Facebook page that ethical issues allegedly emerged.

The following are the Facebook comments that led defense counsel to file a motion to recuse Judge Slaughter from the case:

“Opening statements this morning at 9:20 am in the trial called by the press ‘the boy in the box’ case.”

“After we finished Day 1 of the case called the “Boy in the Box” case, trustees from the jail came in and assembled the actual 6”x 8’ box inside the courtroom!”

“This is the case currently in the 405th!” [This post included a link to a Reuters article entitled “Texas father on trial for putting son in a box as punishment”].

The issue raised about these comments was that the box to which she referred had not yet been admitted into evidence at the trial.

As a result of these comments, defense counsel filed motions to recuse Judge Slaughter from the case and for a mistrial and she was removed from the Wieseckel case. The case was transferred to another court and the judge in that court granted the defendant’s motion for mistrial. Judge Slaughter’s behavior was criticized on social media despite her argument that she made her comments with the intention of promoting transparency and to encourage individuals to come watch the proceedings.

The State Commission on Judicial Conduct (Commission) did not share the Judge’s perspective. After considering the relevant standards of judicial conduct, including Canon 3B(10) of the Texas Code of Judicial Conduct and Canon 4A, the Commission concluded that Judge Slaughter’s comments “went beyond providing an explanation of the procedures of the court” and instead “highlighted evidence that had yet to be introduced at trial”. Further, the Commission stated that “Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the case”.

On April 20, 2015, the Commission issued a Public Admonition and Order of Additional Education to Judge Slaughter requiring her to obtain four hours of instruction, with a mentor and in addition to her required judicial education, on the proper and ethical use of social media by judges.

Judge Slaughter appealed the sanction to a special court of review based upon First Amendment claims. On July 20, 2015, Justice Charles Kreger of the 9th Court of Appeals, Justice Gina Benavides of the 13th Court of Appeals, and Justice John Bailey of the 11th Court of Appeals heard arguments and evidence in the trial de novo. The crux of Judge Slaughter’s argument is that this particular proceeding is going to chill the exercise of the right to free speech as the matters that occur within the courtroom are of public concern. The Court of Appeals has not yet issued its decision.-This case is a prime example of the tension between the First Amendment and the judicial canons that may arise when the judiciary engage in social media however well-intentioned.

[1] http://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/

[2] American Bar Association, 2014 Legal Technology Survey Report, available at http://www.americanbar.org/groups/departments_offices/legal_technology_resources/publications.html

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