Update: That’s What “Friend” Is For?
with backup from the language in the state’s ethics code. For example, the admonition that judges should not interact with individuals or organizations if doing so would erode public confidence in judicial independence is followed by language tying the recommendation to particular elements of the ethics code and giving an example: As required by Jud. Cond. Rule 2.4(C), a judge must not convey the impression that any person or organization is in a position to influence the judge; and must not permit others to convey that impression. For example, frequent and specific social networking communications with advocacy groups interested in matters before the court may convey such impression of external influence.131
Discussion: Caperton and I mplications for S ocial Network Use
A
s previously noted, Chief Justice Roberts’ dissent in Caperton included several questions that he said courts would have to consider in applying the majority’s “likelihood of actual bias” standard.132 While most of the questions in Caperton were framed in electioneering or finance terms, inquiries like those Roberts raised in questions 9 and 21 – “What if the case involves a social or ideological issue rather than a financial one?”133 and, “Does close personThe issues Roberts raises in al friendship between a judge and a party these questions arguably reflect or lawyer now give rise to a probability of bias?”134 – suggest that there are situations precisely the sorts of positions and wherein money might not be the sole deterrelationships that social media not minant of whether a judge ought to recuse. only encourage, but make public. The issues Roberts raises in these questions arguably reflect precisely the sorts of positions and relationships that social media not only encourage, but make public, and could potentially include activities as seemingly innocuous as “friending” a colleague or “liking” a politically-motivated post. There has not been much discussion about judges’ uses of social networking in the legal literature; a few such articles have been referenced here.135 But no author to date has provided an analysis of Caperton motions in light of judges’ use of social networking sites (probably because the case is relatively new and as yet largely untested), and there are few recommendations in that literature for resolving issues that will inevitably arise if the number of social networking sites and their participants continues to rise. What follows is a possible model for states and Congress to use in evaluating whether to revisit and revise their ethics codes to address judges’ use of social networking sites and how to position those uses in a way that comports with the Caperton and state recusal standards. As Chief Justice Roberts suggests, some of the questions raised by the majority opinion in Caperton have to do with ideological issues and personal friendships – under what circumstances do these give rise to the need for a judge to recuse? Most of the state ethics boards’ advisory opinions (with the notable exception of Florida, which itself was not 131. Id. 132. See supra text accompanying notes 54-56. 133. Id. at 2269. 134. Id. at 2270. 135. See, e.g., Galli, Olszyk & Wilhelm, supra note 22; Slaughter & Browning, supra note 27; Vinson, supra note 27; Nelson, Simek & Foltin, supra note 85.
R ey nolds C ourts & M edia L aw Jour nal
313