Should Judges Swipe Left on Social Media?

Should Judges Swipe Left on Social Media?

William J. Barker II, KLJ Staff Editor[1]

The Ethics Committee of the Kentucky Judiciary opined on judges’ social media involvement in January 2010.[2] There are have been many new social media sites since this opinion, but there is no opinion regarding the use of these sites by judges. The mainstream ones are Instagram, Snapchat, and Tinder. In order to determine if these new platforms pose any new ethical problems, an overview of Kentucky’s position on social media is helpful.

In the only opinion regarding social media that the Ethics Committee of the Kentucky Judiciary has issued, the committee answered the question, if a judge could participate in a social media site and be “friends” with people who could appear before the judge, with a qualified yes.[3] This conclusion  was based on Kentucky’s Code of Judicial Conduct, which is based off the ABA’s 1990 Model Code.[4] The Committee determined that social media use by judges is permissible as they must be elected, and isolating them from the public would be unwise.[5] Another reason the Committee gives is that being a “friend” or “follower” is a term of art, and not describing real friendship.[6] The Committee concluded the opinion with a warning to judges that they should be “extremely cautious” that they do not violate any rules of conduct by participating in social media.[7] The rules relied on in the ethics opinion are Canons 2 and 4A.[8] Canon 2 states, “[a] judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.”[9] Canon 4A requires judges not to “demean the judicial office.”[10]

Instagram, Snapchat, and Tinder are the heavyweights of the new wave of social media that were not included in the Committee’s opinion in 2010. Instagram’s co-founder and CEO, Kevin Systrom, describes Instagram as “a community of more than 600 million who capture and share the world’s moments on the service.”[11] Because of the nature of the app, Instagram would not introduce any additional challenges that Facebook and Twitter do not already pose.

Snapchat hit the scene in 2011, to create “a place to share awkward selfies and funny photos with our friends.”[12] The company has rebranded itself to be a camera company to improve people’s lives and communication with one another.[13] The basic function of the app is to allow the user to send photos and videos that automatically deletes after the photo or video is viewed.

Snapchat could pose a problem with Canon 4A. A lack of respect for the position of judge could stem from the judges’ snaps, which would result in the judge demeaning the office. Additionally, if attorneys, for instance, exchange snaps with a judge it could lead to a level of social relationship that could require the judge to recuse themselves. Canon 2 asks judges to “avoid any appearance of impropriety”.[14] An application that automatically deletes what you send to others could tempt judges to send things they normally would not. This could give rise to an appearance of impropriety. Given these situations, a judge should use extreme caution when using Snapchat, and would probably be best if they were not friends with anyone that they would regularly encounter in the courtroom.

Tinder joined the world of social media sites in 2012 with the purpose of helping users meet new people in the community.[15] The user sets up a profile and the app shows you people close, and the user decides whether they want to connect with them or not based on attraction and the profile information.[16] If both people swipe right, then a conversation can be started, but if one-person swipes left then no connection is made.[17] This app primarily is used as a dating app, but the CEO of Tinder believes it can be used for business and meeting new people generally.[18]

If a judge is using Tinder and a person that they encounter regularly in a professional context is in the area, the judge should swipe left. If there is a connection made based on attraction then this could “cast reasonable doubt on the judge’s capacity to act impartially as a judge”.[19] This is a social media platform that probably should be avoided by judges, since there is great potential for unethical behavior to result.

Social media is a great way to stay connected with people, and judges are allowed to participate as long as they do not violate any conduct rules. Instagram does not pose any new situations that the Ethics Committee of the Kentucky Judiciary did not face in writing their opinion. Snapchat and Tinder do pose situations that could lead a judge to violate the rules of conduct. These platforms should be used very cautiously, if at all. In short, if there is doubt the judge should swipe left.

[1] J.D. expected May 2019.
[2] Ethics Comm. of the Kentucky Judiciary, Formal Op. JE-119 (2010).
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Ky. Sup. Ct. R. Canon 2.
[10] Ky. Sup. Ct. R. Canon 4(A)(2).
[11] About Us, Instagram (Sept. 18, 2017, 4:35 PM), https://www.instagram.com/about/us/.
[12] Evan Spiegel, News, Snap Inc. (May 9, 2012), https://www.snap.com/en-US/news/page/7/
[13] Company Profile, https://investor.snap.com/company-profile (last visited Sept. 18, 2017).
[14] Ky. Sup. Ct. R. Canon 2.
[15] Tinder: What Ignited Tinder’s Explosive Growth?, https://growthhackers.com/growth-studies/what-ignited-tinders-explosive-growth (last visited Sept. 18, 2017).
[16] Id.
[17] Id.
[18] Daniel Roberts, Hookup app Tinder wants to change its image, Fortune (June 06, 2013),   http://fortune.com/2013/06/06/hookup-app-tinder-wants-to-change-its-image/.
[19] Ky. Sup. Ct. R. Canon 4(A)(1).

*Featured image by Christiaan Colen, licensed under CC BY-SA 2.0