FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-16 (Election)1
Date of Issue: June 12, 2020

ISSUE

May a judicial candidate post a message encouraging the readers to vote for or support the candidate, in social media groups (Facebook, etc.) which are composed of politically active individuals and which groups do not appear to be sponsored by any particular political organization?

ANSWER: Yes, so long the candidate abides with the Canons of Judicial Conduct.

 

FACTS

The candidate seeks to posts general messages in social media group’s pages asking for their members’ votes and support. Some of these groups are described as being composed of politically active individuals but the groups do not represent themselves as being sponsored by any political organization.

 

DISCUSSION

The JEAC (Committee) has previously rendered opinions where candidates or judges sought guidance about personally attending events sponsored by groups whose goals and activities could, as the candidate describes herein, cause them to be defined as a partisan political group, regardless of any expressed political party affiliation. Those opinions dealt with specifically identified organizations which the Committee chose to consider on a case-by-case basis. However, the proliferation of advocacy groups and organizations use of Facebook, Twitter and many other social media platforms has been so great that the Committee cannot engage in piecemeal determinations of whether a particular social media group is deemed to be a political organization, as defined in the Canons of Judicial Conduct 2. Therefore, just as the Committee has declined to review judicial candidates’ campaign advertisements, we will only provide general guidance on the ethical provisions and factors which judicial candidates must consider and not engage in a review of particular social media groups. JEAC Ops. 00-22; 98-27; and 94-35.

The key issue that needs to be resolved in all of these types of inquiries is whether the particular group is a “political organization” which will thusly be subject to the clear restrictions set out in the Code of Judicial Conduct. The previous JEAC opinions have given general guidance to all judges and candidates on the factors which should be considered in evaluating whether a particular group, either in physical or electronic form, should be considered a political organization or group as defined and contemplated by the Canons of Judicial Conduct. The fact that those opinions dealt with in-person appearances at the groups events, rather than making a virtual appearance through a website, is of no consequence. The same principles that apply to defining the organizations conducting in-person events and activities are likewise applicable to these “virtual” activities. See, JEAC Op. 20-09 (applying the same provisions as an in-person solicitation of campaign contributions to a “virtual” solicitation.)

A review of the relevant Canons follows:

Canon 7 of the Florida Code of Judicial Conduct mandates that a judge or
candidate for judicial office shall refrain from inappropriate political
activity.

Canon 7A(1)(d) provides that a judge or candidate for election to judicial
office shall not “attend political party functions.” A “political party” is not
defined by the Code. The Code more generally describes the political groups
it includes in its prohibitions and requirements. The Code uses and defines
“political organizations” as a “a political party or other group, the principal
purpose of which is to further the election or appointment of candidates to
political office.” (emphasis supplied) Definition section of the Code of Judicial Conduct.

Canon 7A(1)(d) provides that, except what is authorized in sections 7C (3),
“a judge shall not . . . attend political party functions.”

Canon 7A(3)(b) states that a candidate for judicial office “shall . . . act in a
manner consistent with the impartiality, integrity, and independence of the
judiciary, . . .”

Canon 7C(3) sets forth conduct in which the judicial candidate may engage:
“[a] judicial candidate . . . may attend a political party function to speak
on behalf of his or her candidacy or on a matter that relates to the law, the
improvement of the legal system or the administration of justice . . .”

A review of the JEAC opinions reveals the process which was undertaken by the Committee to determine if a particular group fell within the Code’s definition of a political organization.

In JEAC Op. 95-01, the Committee considered the composition and the goals of Tiger Bay Clubs in deciding that a judge could join the group. There, the membership of the group was found to be bipartisan and the group was found to be nonpartisan in nature. However, the judge was cautioned to guard against being placed in a partisan position or act for the political advantages of a person or party.

In JEAC Op. 96-10, the Committee found that a judge could attend a pro-life event because the event did not appear to be a partisan political party function, as the invitation indicated the guest speakers were bipartisan.

The NRA has also been found not to be a political party or organization, as defined by the Code of Judicial Conduct. The Committee’s opinion was based on the fact that regardless of being involved in political matters, the NRA’s principal purpose was not to further the election of candidates to political office. JEAC Op. 00-22. The Committee has found likewise with regards to the NAACP and the League of Women Voters. JEAC Op. 03-23.

On the other hand, the Committee found that a Tea Party Patriot’s group was a political organization. That group was found to be either associated with or perceived as being associated with “what has become known as the Tea Party Movement.” The Committee further found that the Tea Party had registered as a political party with the Florida Department of State. Therefore, based upon the group’s “well-publicized political activism and ongoing political participation in [ ] political electoral processes of the Tea Party…,” the Committee opined the gatherings of the group, as well as the Tea Party itself, should be treated as political party functions. JEAC Op. 10-19. Similarly, the Committee found that Organizing For America met the definition of a political organization because it’s stated goal was to “alleviate political apathy and increase support for the Democratic Party.” Additionally, the Committee observed that the official website for the group linked to www.barackobama.com and found that “[t]he organization centers itself around political activism in favor of the Democratic Party’s earlier plan for national health care and the stimulus package.” JEAC Op. 10-20.

More recently, the Committee has dealt with an inquiry dealing with events sponsored by a group that claimed no party affiliation. In JEAC Op. 16-08, the event in question was sponsored by a group describing itself as “conservative.” The Committee reviewed the event sponsor’s mission statement which described its goals as “to educate and ‘activate’ the public on various issues.” These “issues” were often discussed “in the context of the performance of current and possibly potential office holders,” thereby indicating the issuance of endorsements of candidates agreeing with their position on those issues. Importantly, the mission statement also indicated that the group had previously used “Tea Party” in its name. The Committee, relying on the “Tea Party Patriots” opinion, JEAC Op. 10-19, expressed its concern that the candidate’s “involvement in any extent greater than that approved by Canon 7C(3) would result in the public perception that the candidate endorsed the party’s goals…” The Committee further noted the fact that though an ‘ “organization’s bylaws may proscribe certain activities, the actual practices of the organization may differ, placing the judge [or candidate] in an awkward position.” ’ [quoting JEAC Op. 94-27]

JEAC Op. 16-08, reaffirms the premise that judicial candidates must be vigilant and inform themselves to, not only determine whether the event is appropriate to attend but also, the advocacy goals of the sponsoring group. ‘ “The more zealous, and the more one-sided the advocacy of the organization, the more the weight the judge should give that factor in deciding whether to attend or not. If an organization has historically taken a very consistent, unwavering position on a highly political issue, that would create a rebuttal or presumption that an event they were sponsoring on that issue was not informative but instead an exercise in advocacy. That presumption could be rebutted by advanced publicity concerning the event, the bent of the speakers, the location of the event and the totality of circumstances surrounding the event” ’, Id, [quoting JEAC Op. 13-20].

All these opinions served to illustrate what types of due diligent steps candidates must employ to investigate and determine if a particular group sponsoring a social media virtual event or website meets the definition of a political organization as defined by the Code of Judicial Conduct. In all of the above instances, the Committee researched and reviewed the composition and stated goals and missions of the organization as submitted by the inquirers, as well as found in the groups’ websites and other publicly available sources.

In sum, if the group sponsoring the social media platform, virtual event or website is not a political organization, thereby triggering the requirements of Canon 7C(3), the inquirer may post the request for support and vote as outlined in JEAC Op. 20-13.

 

REFERENCES

Fla. Code Jud. Conduct, Canon 7A and Canon 7C.
Fla. JEAC Op. 20-13, 20-09, 16-18, 16-08, 13-20, 10-20, 10-19, 03-23, 00-22, 98-27, 96-10, 95-01, 94-35, and 94-27.

 

_____________


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.

Election Subcommittee Members:
Judge Roberto Arias, Mark Herron, Esquire, Judge Matthew C. Lucas and Judge Michael Raiden.

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 of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Supreme Court Clerk
All Committee Members
General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel

 

 

1. The Judicial Ethics Advisory Committee has appointed an Election Practices Subcommittee. The purpose of this subcommittee is to give immediate responses to campaign questions in instances where the normal Committee procedure would not provide a response in time to be useful to the inquiring candidate or judge. Opinions designated with the “(Election)” notation are opinions of the Election Practices Subcommittee of the Judicial Ethics Advisory Committee, and have the same authority as an opinion of the whole Committee.

2. The social media platforms are used by many groups that are transparent in identifying themselves. However, the platforms have also been found to be misused by many other sources, including foreign governments, who have misled the users in believing they were corresponding with other entities. See, Russian Fake Accounts Showed Posts to 126 Million Facebook Users. USA Today, October 30, 2017; Intelligence Magazine, Life in Pixels. How Much of the Internet is Fake? Turns Out, A Lot Of It Actually, (December 26, 2018); With Social Media Disinformation, What-And-Who-Should We Be Afraid Of? (February 13, 2019). US Senate Select Committee on Intelligence, Report on Russian Active Measures Campaigns and Interference in the 2016 US Election Vol. 2.