CJEO Expedited Opinion No. 2021-042 — Social Media Posts About the Law, the Legal System, or the Administration of Justice

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Expedited Opinion 1 2021-042
[Posted April 28, 2021]
SOCIAL MEDIA POSTS ABOUT THE LAW, THE LEGAL SYSTEM, OR THE
ADMINISTRATION OF JUSTICE
I. 	Question
A judicial officer who would like to make statements on Facebook concerning
legislation related to the law, the legal system, and the administration of justice asks the
1 	The California Supreme Court Committee on Judicial Ethics Opinions (CJEO) issues
Expedited Opinions, formerly known as Oral Advice Summaries, pursuant to California
Rules of Court, rule 9.80(i)(1) [eff. Jan. 1, 2021]. Expedited Opinions are issued to requesting
judicial officers following a discretionary decision by CJEO to address the ethical issues raised
in an expedited process that does not include posting draft opinions for public comment, as
required for CJEO Formal Opinions. CJEO Expedited Opinions are published in full, without
identifying information regarding the requesting judicial officer, to provide information and
analysis to the bench and the public regarding judicial ethics.

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Committee on Judicial Ethics Opinions (CJEO) to review those posts and advise whether they
are permissible under the California Code of Judicial Ethics. While the committee declines to
comment on specific social media posts, it provides the following guidance for permissible use
of social media to make law-related statements.
II. 	Advice Provided
Judges may use social media to make statements relating to the law, the legal system, or
the administration of justice, but should consider the following when posting or engaging with
others online: (1) the same standards for judicial communications that apply in face-to-face
settings apply with equal force to online statements and social media posts; (2) due to lack of
control over the dissemination and permanence of online statements, judges must exercise
caution and restraint and should assume the widest possible audience; (3) while statements
concerning the law, the legal system, or the administration of justice are generally permissible,
judges may not engage in prohibited social or political commentary on social media; and (4)
judges must carefully evaluate what they intend to post and continually monitor their social
media communications and posts to ensure public confidence in the integrity, independence, and
impartiality of the judiciary.
III. 	Discussion
Social media has become a pervasive form of communication and socialization in daily
life. Social media is commonly used to share information, network, connect with friends, and
express opinions. Judges are no exception to the popularity of social media. (Epps & Warren,
Resisting Shiny Trinkets in This New Digital Age: Judicial Interaction with Media Platforms
(Aug. 2019) 58 Judges’ J. 28, 30 [as of 2016, surveys showed that approximately 40 percent of
judges use social media]; Cal. Judges Assn., Jud. Ethics Com., Advisory Opn. No. 78 (2020),
p. 3 (CJA Opn. No. 78) [observing that more and more judges are expected to engage in social
media over time].)
With social media permeating nearly every aspect of personal and professional life, it is
understandable that judges have questions regarding how to use social media without violating

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the California Code of Judicial Ethics. 2 In general, social media is governed by the same rules
that govern statements made in any other context. However, there are certain ethical pitfalls
associated with social media, such as the loss of control over and permanence of statements, that
distinguish it from other forms of communication. For guidance, the committee provides the
following standards and cautions concerning the use of social media to express opinions related
to the law, the legal system, or the administration of justice.
A. The Code Applies Equally to Traditional and Online Conduct
In 2018, the California Supreme Court amended the code to recognize that judicial use
of social media is governed by the same ethical rules that govern judicial conduct in any other
setting. “The same canons that govern a judge’s ability to socialize and communicate in person,
on paper, or over the telephone apply to electronic communications, including use of the Internet
and social networking sites.” (Advisory Com. com. foll. canon 2 and 2A; CJA Opn. No. 78,
supra, p. 3 [the same rules apply to a judge’s online conduct that apply in any other context];
State v. Thomas (N.M. 2016) 376 P.3d 184, 198 [limitations on judicial conduct apply with
equal force to virtual actions and online conduct].)
While the same rules apply in traditional and online environments, there are important
differences for judges to consider. For example, on social media, a person making a statement
does not always have control over who can view the statement, responses or reactions to the
statement, how widely or in what manner the statement is shared or repeated by third parties,
how long the statement is retained on a particular format, or whether the statement can be
modified or deleted. For this reason, the code instructs judges to use caution in online
communications. (Advisory Com. com. foll. canons 2 and 2A [judges should exercise caution
due to the accessibility, widespread transmission, and permanence of material posted on the
internet]; Cal. Judges Assn., Jud. Ethics Com., Advisory Opn. No. 66 (2010), pp. 3–4 (CJA
Opn. No. 66) [the use of social media technology poses unique issues, such as loss of control
over the dissemination of content and the permanence of statements made in cyberspace]; CJA
2 	All further references to the code, terminology, canons, and advisory committee
commentary are to the California Code of Judicial Ethics unless otherwise indicated.

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Opn. No. 78, supra, p. 8 [social media users cannot control the use or lifespan of their
communications; even platforms intended to display messages for a brief period of time do not
guarantee that posts will be removed].)
While the committee advises vigilance and caution, it is not always practical or
preferable to avoid social media altogether. Social media is a powerful tool for making and
maintaining connections, both personal and professional, and for community participation.
Judicial involvement in the community makes for engaged and socially aware judges, which is
to be encouraged. (Advisory Com. com. foll. canon 4A [complete separation from extrajudicial
activities is neither possible nor wise, and judges should not become isolated from the
community in which they live].) Just as judges should not be isolated from their physical
communities, judges are not prohibited from engaging in online communities. In addition,
while they are subject to restrictions and limitations on extrajudicial activities, judges are not
required to give up their personal lives or individual opinions. (Advisory Com. com. foll. canon
2 and 2A [judges must expect to be the subject of constant public scrutiny and therefore must
accept restrictions on their conduct that might be viewed as burdensome]; canon 5 [judges are
entitled to personal views on political issues and not required to surrender their rights or
opinions as citizens]; CJA Opn. No. 66, supra, p. 4 [a judge’s participation in social media does
not per se violate the canons].)
That said, judges must be mindful of how the public may perceive social media activity
and refrain from any online statements or communications that call into question the impartiality
of the judiciary. (Canon 2 [judges shall not make public statements that are inconsistent with
the impartial performance of judicial office]; Advisory Com. com. foll. canon 2 and 2A [judges
must avoid impropriety in all activities; the test for impropriety is whether a person aware of the
facts would reasonably entertain a doubt about judicial integrity, impartiality, or competence].)
For instance, judges should carefully consider whether online friendships or participation in
certain online groups or forums suggest that they have allowed “family, social, political, or other
relationships” to influence their judgment or convey the impression that anyone is in a special
position to influence them. (Canon 2B(1); CJA Opn. No. 66, supra, pp. 7–11 [judges must
exercise caution when engaging in online “friendships,” especially with lawyers, and should not

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interact on social media with lawyers in pending cases].) Judges must also ensure that online
statements and social media posts do not lend judicial prestige to benefit anyone’s personal or
pecuniary interest. (Canon 2B(2); CJA Opn. No 78, supra, p. 9 [a judge should refrain from
reviewing businesses online when the judge’s identity can be ascertained and be circumspect
when “liking” other’s posts about products or businesses].)
When posting comments online, judges must carefully consider the canons and the
potential hazards of social media to strike a balance between the restrictions on judicial conduct
and the expression of personal opinions.
B. 	Online Conduct Is Inherently Public Conduct
Judges must assume that all statements made on social media platforms will reach the
widest possible audience regardless of whatever viewing restrictions or privacy settings a judge
applies. This is because it is sometimes difficult for social media users to discover how the
technology works, the technology does not work exactly as advertised, the technology’s default
settings change over time, or some combination of the foregoing. (CJA Opn. 66, supra, p. 3
[describing the varying degrees of Facebook privacy settings and noting that certain information
is available even to people who are not “friends” with a judge]; Browning, Should Judges Have
a Duty of Tech Competence? (2020) 10 St. Mary’s J. Legal Malpractice & Ethics 176, 180-185
[describing judicial discipline for engaging in inappropriate posts on Facebook or Twitter due to
lack of familiarity with the websites’ privacy settings].)
In fact, several judges disciplined for online behavior mistakenly believed that they had
taken necessary precautions to protect the privacy of their statements. (Com. on Jud.
Performance, Ann. Rep. (2018) Public Censure of Former Commissioner Joseph J. Gianquinto,
pp. 33–34 (Public Censure of Gianquinto) [judge’s lack of knowledge regarding how to remove
content from social media site did not excuse code violations]; Inquiry Concerning Krause (Fla.
2015) 166 So.3d 176, 177–178 [judge’s intention to keep comments private on social media did
not excuse misconduct]; Judicial Discipline and Disability Commission v. Maggio 440 (Ark.
2014) S.W.3d 333, 334 [judge disciplined for statements made on social media even though a
pseudonym was used].) Even if a judge takes steps to keep his or her social media statements

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private or limited to a select group of viewers, social media platforms and the sophistication of
online viewers are evolving so rapidly that even the most technologically proficient users may
have difficulty keeping pace with the privacy features, sharing capabilities, or hacking
vulnerabilities of each site. (In re Complaint of Judicial Misconduct (3d Cir. 2009) 575 F.3d
279, 291–294 [federal judge admonished for not adequately securing his personal server to
prevent public access to sexually explicit files, which embarrassed and undermined public
confidence in the judiciary in violation of federal codes of conduct].)
A judge’s online statements and social media posts are particularly likely to draw
heightened attention when a judge is engaging in discourse on controversial subjects or current
events. (Advisory Com. com. foll. canons 2 and 2A [judges are expected to be the subject of
constant public scrutiny and are therefore subject to increased restrictions]; CJEO Formal
Opinion 2020-014 (2020), Judicial Participation in Public Demonstrations and Rallies, Cal.
Supreme Ct. Com. Jud. Ethics Opns., p. 5 (CJEO Formal Opinion 2020-014) [given intense
societal focus on racial justice and equity issues, a judge’s participation in social protests was
likely to draw public scrutiny].) Thus, the committee advises judges to assume that any
statements they make on social media are public statements, potentially subject to scrutiny, and
to use discretion and heightened caution when online.
C. 	Online Statements Concerning the Law, the Legal System, or
Administration of Justice
The code generally permits judges to engage in activities concerning “the law, the legal
system, or the administration of justice” provided those activities do not violate other provisions
in the code. (Canons 4B, 4C & 5D.) The reasoning behind this broad permission is that judges
are “specially learned in the law” and therefore in a “unique position to contribute to [its]
improvement.” (Advisory Com. com. foll. canon 4B.) When applied to online activities, it is
permissible for judges to use social media to comment on legislation affecting the judiciary or
legal system, so long as the commentary would not violate other canons or rules. (Canon 5D.)
For example, statements must not: (1) undermine public confidence in the judiciary or suggest
bias (canons 1, 2 & 2A); (2) relate to pending matters or potential pending matters (canon 2A);

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(3) stray into unlawful activities or demean the judicial office (canons 2A & 4A(2)); (4)
constitute prohibited political activities (canon 5); (5) convey a special position of influence or
use title to promote the interests of others (canon 2B(1) & (2); or (6) interfere with the
performance of judicial duties (canons 3 & 4A(3)). (Com. on Jud. Performance, Ann. Rep.
(2017) Public Admonishment of Judge Jeff Ferguson, pp. 2–3 [judge admonished for making
statements on a social media page about an attorney’s sexual affairs with reckless disregard for
the truth, which compromised the integrity of the court and demeaned the judicial office].)
The code does not precisely define the law, the legal system, or the administration of
justice, and an overly broad interpretation could sweep nearly any sociopolitical topic within its
ambit. (Terminology, Law, the Legal System, or the Administration of Justice; CJEO Expedited
Opinion 2021-041 (2021), Service on a Governmental Task Force, Cal. Supreme Ct. Com. Jud.
Ethics Opns., pp. 3–5 (CJEO Expedited Opinion 2021-041) [acknowledging the challenges in
interpretating the phrase]). Judges must therefore exercise caution to ensure that public
statements directly relate to the law, the legal system, or the administration of justice rather than
their personal social or political views. (Canon 5 [judges shall not engage in political activity
inconsistent with the independence, integrity, or impartiality of the judiciary] 3; Public Censure
of Gianquinto, supra, pp. 33–34 [judge disciplined for statements relating to presidential
policies, immigration, racial issues, and political views]; In re Kwan (Utah 2019) 443 P. 3d
1228, 1232, 1237–1239 [judge suspended for social media posts extensively criticizing a sitting
president, among other violations]; N.Y. Advisory Com. on Jud. Ethics, Advisory Opinion No.
2019-120 [a judge may publicly support legislative and constitutional changes affecting court
structure and operations but should use caution when expressing opinions on social media].)
The distinction between permissible statements concerning the law, the legal system, or
the administration of justice and prohibited political statements may not be a bright line.
However, this committee has previously advised that conduct is more likely to fall within the
3 	Canon 5A specifically prohibits judges from engaging in partisan politics, such as
holding office in a political organization, publicly endorsing nonjudicial candidates, or
fundraising for nonjudicial campaigns. (Canon 5A (1)–(3).) Any social media post that publicly
endorses a nonjudicial candidate or political organization is expressly prohibited.

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scope of the law, the legal system, or the administration of justice when it pertains to “purely
administrative issues, such as court budgets, facilities, and docketing impacts” rather than “the
more substantive end of the policy spectrum.” (CJEO Expedited Opinion 2021-041, supra,
p. 4.) Thus, statements regarding court impacts are more likely to fall within the safe harbor of
the law, the legal system, or the administration of justice than general policy-related statements
not directly linked to the courts. The committee advises that this same guidance applies whether
engaging in public activities in traditional settings or in the social media context.
Finally, judges choosing to use social media must engage in a two-step process to
ensure continued compliance with the code. First, they must carefully evaluate their own
statements, using the guidelines above, before deciding to post something on social media. (See
Discussion, ante, at pt. III.B. and III.C.) Second, they must monitor reactions to their statements
and the social media forums they use. For example, if a judge’s social media posts trigger
online posts or comments that devolve into discussions undermining the judge’s impartiality or
demeaning the judicial office, the judge must use his or her best efforts to delete those posts.
Or, just as in physical public forums, if the social media site itself suggests bias or impropriety,
a judge may need to leave that site entirely. (CJEO Formal Opinion 2020-014, supra, p. 2)
[judges must remain vigilant and be prepared to leave a demonstration or rally if remaining
might result in a violation of their judicial duties or interfere with judicial obligations].) While it
may not be feasible to track every social media page they have commented on or change the
conduct of online contacts, a judge must make reasonable efforts to monitor social media pages
or threads associated with the judge and take action to remedy any statements that compromise
the integrity of the judiciary. (Canons 1 & 2A [judges must act to preserve public confidence in
the integrity, independence, and impartiality of the judiciary]; Com. on Jud. Performance, Ann.
Rep. (2018) Private Admonishment 2, p. 27 [judge admonished for failing to diligently monitor
social media associated with the judge’s name].)
IV. 	Conclusion
Social media has become a pervasive form of communication and socialization in our
society, and the use of social media by judges is understandably growing. Judges choosing to
participate in social media platforms must exercise caution and abide by the same ethical rules

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that apply to in-person statements. In addition, judges must be mindful that they do not retain
complete control over the technology, dissemination, or permanence of content and should
assume the broadest possible audience. As in traditional settings, judges may comment on
matters pertaining to the law, the legal system, or the administration of justice, provided they do
not engage in prohibited political commentary or violate other canons in the code. Judges must
expect public scrutiny when using social media, make reasonable efforts to monitor their online
activities, and be prepared to leave virtual environments that undermine the integrity,
independence, or impartiality of the judiciary.

This expedited advice opinion is advisory only. (Cal. Rules of Court, rule 9.80(a), (e);
Cal. Supreme Ct. Com. Jud. Ethics Opns. (CJEO), Internal Operating Rules & Proc. rule 1(a),
(b).) It is based on facts and issues, or topics of interest, presented to the California Supreme
Court Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court,
rule 9.80(i)(3); CJEO rules 2(f), 6(c)), or on subjects deemed appropriate by the committee
(Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)). The conclusions expressed in this
opinion are those of the committee and do not necessarily reflect the views of the California
Supreme Court or any other entity. (Cal. Rules of Court, rule 9.80(b); CJEO rule 1(a)).)