Texas Supreme Court Justice Don Willett, who rose to fame in social media circles for his active and vibrant use of Twitter, was deemed “well-qualified” for a seat on the Fifth Circuit Court of Appeals by the American Bar Association earlier this week. Perhaps appropriately, the decision was tweeted out by another prominent member of the state court Twitterati, Georgia Court of Appeals Chief Judge Stephen Dillard.
Justice Willett has more than 100,000 Twitter followers and was a very active tweeter before his federal judicial nomination drove him to stay off the platform, at least temporarily. But he is no longer a rare exception to the rule that active judges stay off of social media. Chief Judge Dillard has more than 11,000 followers, and tweets several times a day, mostly on general legal issues. He is joined by many other judges around the country with active Twitter accounts.
The legal profession has always been uneasy with judges engaging social media. David Lat took a look at this in 2014, concluding that the judicial use of Twitter to educate the public about the work of the courts was entirely appropriate, and that “judges just need to exercise sound judgment.”
The social media landscape has only grown in the ensuing three years, and the question is worth another look. Is the judicial use of Twitter humanizing or harmful?
Initially, there is reason to be suspicious about whether regular tweeting can go hand in hand with fair and competent judging. Twitter is a spectacular vehicle for avoiding nuance and venting frustration — two qualities that one does not (and should not) normally associate with the judiciary. Nor does the fact that high-profile politicians and celebrities use (and misuse) Twitter on an almost daily basis inspire confidence about its spread to the courts. In a 2014 survey conducted by the National Center for State Courts and the Conference of Court Public Information Officers (the most recent year I could find), less than half the respondents agreed that judges could use social networking sites without compromising their judicial ethics — a drop in agreement even from the previous year.
At the same time, state and local bar associations are increasingly providing guidance on judicial use of social media generally. The gist of the guidance is that the use of social media is acceptable, but should be undertaken with extreme caution. The Massachusetts Committee on Judicial Ethics recently held that “when a judge is posting publicly as a judge, the judge must be exceptionally cautious. The reason is that the public may perceive the judge’s communications to have the imprimatur of the courts. In general, a public, unrestricted Twitter account of an identified judge may be used only for informational and educational purposes.” Similarly, the Tennessee Judicial Ethics Committee concluded that “while judges may participate in social media, they must do so with caution and with the expectation that their use of the media likely will be scrutinized various reasons by others.”
This is good, general, cautionary advice. But it obscures other important functions of social media generally and Twitter specifically: to enhance social interaction and create educational opportunities. In this sense, thoughtful use of Twitter is not substantially different from speaking to a bar association or citizen group, or writing a book or article on a topic of legal or public significance. And many judges have embraced that public role, always being careful to address their chosen topics without divulging information or positions that might raise ethical questions.
Judges are also human beings. Social media can foster fun and friendships, and can be used in ways that are utterly harmless to judicial reputation. Earlier this month, Chief Judge Dillard renewed an age-old debate on his Twitter feed: is “Die Hard” a Christmas movie? He drew responses from other tweeting judges across the country, including Justice Beth Walker of West Virginia, Justice Bridget Mary McCormack of Michigan, and Judge Steve Leben of Kansas. And a scroll through Chief Judge Dillard’s Twitter feed just feels fun — he takes judicial notice of his followers’ birthdays, tracks Samford football, and even tweaks Twitter itself for its new 280-character policy.
Meanwhile, a different sort of “fun” Twitter culture is emerging across the pond. Starting this past summer, several judges in England and Wales have taken to Twitter under pseudonyms like Mr. Justice Serious, Ms. Justice Khan’t, Mr. Justice Denied, Ms. Justice Prevailed, and even Lord Justice Delayed. Most of their tweets have suggested the lighter side of judging, gently mocking everything from stuffy formal dress, to bad lawyering, to overbearing court administrators. The ICLR Blog notes that the tweets “reveal a human side that the judiciary are often accused of lacking.”
Ultimately, David Lat’s conclusion from three years ago seems to have held up pretty well: judges should not be afraid of using Twitter, as long as they employ it appropriately and with discretion. And exercising discretion should be a familiar part of their job requirement. As Judge Leben tweeted out just last night:
Judges on Twitter is just something new, so people aren’t sure how to react. But it’s really no different than a judge speaking at Kiwanis or Rotary—except there’s a record. Hopefully more judges will join in over time.
So tweet away, Your Honors. We’ll be reading.
UPDATE 1/27/18: Twitterlanche! Thanks, @JudgeDillard, for the shout out. And if you’re a new reader to this blog, please have a look around.