FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-13
Date of Issue: May 13, 2020

ISSUE

May a judicial candidate include on a campaign website (a) a video of the candidate personally describing experience, qualifications, and similar subjects; (b) an invitation to potential followers to watch the campaign website for updates and to submit questions to the candidate; and (c) personal requests for support in both English and Spanish?

ANSWER: Yes, so long as the candidate’s own words do not extend to asking for donations or other financial support, and the content of the candidate’s answers to voters’ questions do not intrude into promises of future conduct or other areas disfavored by the Code of Judicial Conduct.

FACTS

The inquiring candidate and the candidate’s campaign committee are following the modern trend of setting up a website. A total of four questions have been put to us, all regarding proposed content for that site. First, the candidate asks if it is permissible to post videos explaining the candidate’s “background, experience, and why [the candidate] is seeking election.” The candidate assures us that these videos themselves will not make any request for or mention of financial contributions. However, the website where they are to be posted will.

The inquiring candidate also wants to know whether it would be acceptable, in the course of composing the videos, to “invite viewers . . . to follow the campaign on social media and to ask questions of the candidate to be responded to in later videos.” Third, the inquiring candidate asks whether it would be permissible for the candidate to employ the word “support” in the presentations. The candidate has taken care to distinguish between asking for financial support, which the candidate knows not to do, and more generalized support - requests to vote for the candidate, telling friends to do so, and similar activities. Finally, the candidate contemplates making a video in Spanish, and asks if it would be permissible to substitute the word apoyo, which translates as “support.”

 

DISCUSSION

What judicial candidates seeking electoral support may and may not say or do is the subject of Canon 7 of the Florida Code of Judicial Conduct. The inquiring candidate in this case clearly understands that a judicial candidate cannot “personally solicit campaign funds or solicit attorneys for publicly stated support.” Fla. Code Jud. Conduct, Canon 7C(1). Instead, such matters must be delegated to “committees of responsible persons.” Id. However, as we made clear in Fla. JEAC Op. 16-13, this does not mean that the candidate cannot ask for voter support per se. There we saw no reason to preclude the inquiring candidate from “only . . . encourag[ing] voters to vote generally, and to cast their ballot for the candidate specifically. In this sense, a Facebook page is no different from a billboard or a television commercial. The heart of the democratic process is candidates stumping for votes. Nothing in Canon 7 prohibits a judicial candidate from asking the electorate to vote for him or her - whether on Facebook, in person, or through the mass media.”1 See also Fla. JEAC Ops. 14-04 and 19-22.

In the present case this Committee believes that the information the candidate seeks to broadcast is consistent with what is to be expected from campaign literature or public speeches given at “meet the candidates” forums. Fla. JEAC Op. 16-13’s acknowledgment that candidates may ask people to vote for them would offer very little if they could not also give voters reasons why they should consider doing so. Needless to say, this does not change regardless of what languages may be employed. As for the inquiring candidate’s proposal to invite readers of the website to ask questions, nothing in Canon 7 prohibits this either. We think such periodic updates are inherent in the nature of political advertising. The only restrictions that Code and case law would pose would be on the content of the answers. We encourage the inquiring candidate to become familiar with Canon 7A(3)(e), which does hold that certain subjects are off limits.

The candidate’s inquiry mentions such familiar social media sites as Facebook, Twitter, Instagram, and YouTube. We note that in Fla. JEAC Op. 18-16 we did not preclude a judicial candidate from personally utilizing such services if only asking for non-monetary support. We are given the impression, however, that the inquiring candidate’s “committee of responsible persons” will be maintaining any campaign-related websites or pages, and will be using them to solicit financial support. Fla. JEAC Ops. 14-04 and 18-16 authorize this procedure. In essence the current inquiry is whether the candidate may personally contribute to that sort of website by offering biographical information and personal requests for votes rather than dollars.

Fla. JEAC Op. 19-22 cautioned candidates against personally “promoting” any campaign-related links that ask for money. “[T]he candidate may not ‘promote’ the campaign’s website.” However, apart from requiring disclaimers if the site were to publish pictures of the candidate interacting with other elected officials, the opinion did not elaborate upon the permissible extent of a candidate’s personal behind-the-scenes involvement in the format of the site. We believe, however, that Fla. JEAC Op. 20-21 provides sufficient guidance and would allow the candidate to make the videos.

The question asked in Fla. JEAC Op. 10-21 was specifically worded as follows: “Does Canon 7 . . . allow the placement of the word ‘contribute’ underneath the words ‘volunteer, endorse, education, experience, family and photos’ on the candidate’s committee’s home page on the internet?” We answered in the affirmative, provided that “the site is clearly managed by the committee established under Canon 7C(1) and the site does not give the appearance that the candidate is managing the site or its content.” The reference to education, experience, and family photos contemplates materials and information that a candidate would be expected to provide personally. We can perceive no meaningful distinction between a still photo and a video, which might be analogized to a television commercial. The use of commercials does not violate the Code, so long as the candidate carefully crafts the language to be used therein. See Fla. JEAC 98-27.

In sum, we determine, first, that the website or page must make clear to the viewing public that it is maintained by a committee working on behalf of the candidate and that the candidate is not the one making the solicitation. See Fla. JEAC Op. 10-21. To be effective, however, any such site must provide information favorable to the candidate that is likely to assist potential voters in making their selection. Common sense dictates that this may not easily be done without personal input from the candidate. Successful advertising contemplates “putting a face with a name” to try and persuade the public that a candidate has an appealing personality, a professional demeanor, the background to perform official duties capably, and any other attributes voters may reasonably deem important.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 7A(c)(3) and 7C(1)

Fla. JEAC Ops. 19-22, 18-16, 18-04, 16-13, 14-04, 10-21, 98-27

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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 to 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 of 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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge W. Joel Boles, Judicial Ethics Advisory Committee Chair, First Circuit M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 or JEAC@flcourts.org.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.

All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring Judge (name deleted)
Chief Justice Charles T. Canady, Justice Liaison
John A. Tomasino, Supreme Court Clerk
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator

 

 

 

1. We have gone so far as to approve of a judicial candidate personally asking voters to sign a petition which would allow the candidate to qualify for election without paying a filing fee. See Fla. JEAC Op. 18-04.