by: Peter J. Gallagher (@pjsgallagher)
I recently wrote an article for law360.com about when, if ever, it is appropriate for active judges to become “friends” with lawyers on Facebook and other social media. Courts and ethics authorities in several states have weighed in on the issue, with some banning judges from “friending” lawyers who regularly appear before the judge and others permitting all such “friending” unless it violates one of the canons of the Code of Judicial Conduct (e.g., the prohibition against ex parte communications between a judge and counsel).
According to a recent article from the Texas Lawyer (h/t Above the Law), Judge Michelle Slaughter, a judge on the Texas state district court, got herself into some hot water, not for the “friends” she kept on social media, but for broadcasting details of a pending trial to those “friends” over Facebook, including the following:
On the first day of testimony, Slaughter posted the following comments on her Facebook page: "Opening statements this morning at 9:30 a.m. 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 [the defendant was charged with unlawful restraint for allegedly keeping a 9-year-old boy in a 6 feet by 8 feet wooden enclosure that had been used as the child's bedroom], trustees from the jail came in and assembled the actual 6'x8' 'box' inside the courtroom!"; and "This is the case currently pending in the 405th!" The post included a link to a Reuters article about the case.
The "actual box" comment referenced evidence that had not yet been presented in the trial, and the Reuters article contained extraneous information that had also not been presented in the case.
Somewhat ironically, Judge Slaughter’s Facebook posts came after she warned the empaneled jury not to discuss the case with anyone, including over Facebook and other social media.
Judge Slaughter was removed from the case after defense counsel filed a motion to have her recused based on her Facebook posts. The case then went before a different judge, who granted a mistrial. Judge Slaughter was later admonished by state ethics authorities for her Facebook posts.
Judge Slaughter, who claimed that she maintained a public Facebook page to fulfill a campaign promise to educate the public about the courts, argued that her posts about the trial promoted “transparency” and that she only posted information that was publicly available. The State Commission on Judicial Conduct rejected these claims. Instead, it held that Judge Slaughter shared non-public information and otherwise “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 or in other high-profile cases." The Commission admonished Judge Slaughter and required her to “get four hours of instruction with a mentor in addition to her required judicial education.”
Judge Slaughter’s lawyer disagreed with the Commission’s decision, noting that it violated Judge Slaughter’s free speech rights. However, as several of the decisions involving judges becoming “friends” with lawyers over social media observed, judges are subject to certain regulations that they might not otherwise be subject to when they agree to become judges. While this does not mean that judges give up all of their First Amendment rights when they put on a judicial robe, a prohibition against commenting on pending cases – whether on Facebook or elsewhere – probably falls within the scope of permissible regulation.
Finally, not surprisingly, Judge Slaughter’s Facebook page is no longer online.
Pete's Take 