FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2012-07
Date of Issue: March 6, 2012
May a judge publish a blog that reports on Florida Supreme Court and District Court of Appeal cases as they are released, where the entries are intended to be neutral, nonjudgmental, brief summaries of the facts and holdings, with a link to the full opinion of each case?
The inquiring judge proposes to publish a blog where the judge will be reporting on cases as they are released by the Florida Supreme Court and the District Courts of Appeal. It is not the inquiring judge’s intent to editorialize, criticize, or otherwise evaluate any of the opinions. Instead, the blog would only alert the reader to the release of the opinion and briefly describe what the opinion states. The blog would also alert the reader to changes in the rules of procedure and the Evidence Code.
In general, Canon 4 of the Code of Judicial Conduct authorizes judges to engage in activities to improve the law, the legal system, and the administration of justice. Canon 4B specifically provides, "the judge may speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, and administration of justice . . . subject to the requirements of this Code." While Canon 4 permits a judge to engage in various quasi-judicial activities involving the law, the Code requires that the activities not cast reasonable doubt on the judge's capacity to act impartially. See Canon 4A(1). (Whether this is a Canon 4 activity or a Canon 5 activity is of little concern because each Canon contains similar language regulating this type of activity.)
This Committee has consistently advised that judges may teach: on a law-related subject at a community college's police academy (Fla. JEAC Op. 05-11); at a religious university (Fla. JEAC Op. 97-26); and at a seminar sponsored by the Academy of Florida Trial Lawyers and the University of West Florida (Fla. JEAC Op. 87-3).
Likewise, in Fla. JEAC Ops. 08-21, 05-11, 97-26 and 75-28, the Committee concluded that various teaching activities were not prohibited by the Code. In those opinions the Committee relied upon Canon 4 and cautioned however that the activity would be permitted only if it did not cast reasonable doubt on the judge’s capacity to act impartially.
The Code makes no distinctions among the activities of speaking, writing, lecturing, or teaching, or the technology used to engage in those activities. Nor does the Committee perceive any such distinction. In Fla. JEAC Op. 11-01, the Committee advised that a judge may create and privately maintain a website designed primarily to focus high school students on college or trade school preparation, as long as the judge’s website complies with all provisions of the Code. We advised the inquiring judge to carefully examine all provisions of the Code that relate to the site and its topics, to insure that the judge is not doing on the web something the judge could not ethically do in person. See also Fla. JEAC Ops. 09-20 and 07-21.
In Fla. JEAC Op. 11-18, however, the inquiring judge proposed to contract with a national television production company to tape the judge’s arraignments and a subsequent teaching segment by the judge. The judge would be paid and would explain the law, sentencing choices, and interview different “players” in the court system. The Committee advised that because the judge would be discussing the law and sentencing choices, this could lead to frequent disqualification of the judge and could cast reasonable doubt on the judge’s capacity to act impartially in cases discussed publicly by the judge. We emphasized that no judge should make public comments on pending or impending cases.
Likewise, in Fla. JEAC Op. 96-25, the Committee advised that the Code of Judicial Conduct prevented a judge from entering into an arrangement with a television station, for compensation, to “comment about, explain to, and educate the public concerning diverse legal matters including explaining and clarifying the proceedings during high publicity trials such as the O.J. Simpson civil trial.” The Committee concluded that the proposed arrangement with the local television station would lend judicial prestige to the commercial interests of the television station in violation of Canon 2B; the activity would involve improper public comment upon a pending or impending proceeding in violation of Canon 3B; and the activity would cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, and interfere with the proper performance of judicial duties in violation of Canon 5.
If all cases to be included in the present inquiring judge’s blog were final (i.e. no discussion of pending or impending cases would be included) nothing in the present inquiry suggests the inquiring judge would be placing on the proposed blog anything that could not be included in any other teaching activity.
It is not practicable to list all the provisions of the Code that could apply to a judge’s blog, and a judge must expect to be the subject of constant public scrutiny. Moreover, the Committee does not screen, comment on or approve the content of written material or speech, and likewise will not review in advance the content of any blog. So, before publishing material on the blog, the judge should carefully examine all provisions of the Code that relate to the blog and its topics, to insure that the judge is not publishing on the blog something the judge could not ethically say in person. The Committee also advises that an interactive blog may invite inappropriate comment by the judge and therefore the judge would be well-advised to exercise caution in engaging in such activity. Additionally, the judge may consider adding a disclaimer to the blog that clarifies the judge does not endorse or vouch for the comments of others on the blog, and that such comments do not represent the views of the judge.
Fla. Code Jud. Conduct, Canons 4A(1), 4B, and 4D(2)(c).
Fla. JEAC Ops. 11-18, 11-01, 09-20, 08-21, 07-21, 05-11, 97-26, 96-25, 87-3, 75-28.
The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate.
Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See Id.
The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.
For further information, contact: Patricia E. Lowry, Esquire, Chair, Judicial Ethics Advisory Committee, Squire, Sanders & Dempsey (US) LLP, 777 South Flagler Drive, Suite 1900 West, West Palm Beach, Florida 33401-6161.
Judge Roberto Arias, Judge Robert T. Benton, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jonathan D. Gerber, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge Jose′ Rodriguez, Judge C. McFerrin Smith, III, Judge Richard R. Townsend, and Judge Dorothy Vaccaro.
Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
Inquiring Judge (Name of inquiring judge deleted from this copy)