In August, I will engage in a discussion of the ethical and professional challenges that social media presents to judges. There are a myriad of issues that might be approached within that topic. There are foundational issues of free speech and concerns for public perception. As with any subject, it is important for us to remember that all government regulation constricts someone's rights. Nothing is a simple and single-faceted absolute when it comes to the conflict between regulation and rights.
You have a right to freedom of speech, that does not include inciting violence. Conflict.
You have a right to freely use your property, but not to hold a Taylor Swift concert in your 1/8-acre backyard at 03:00. Conflict.
You have the right to bear arms, but not in a school. Conflict.
In each, one person's rights are balanced against the rights of another or the regulation of government on behalf of society. There is inherent friction.
There are thus a multitude of settings in which rights are not absolute. There is regulation that stands in the way of rights. Society has interests, institutions have interests, and other individuals have rights. These are all in a state of persistent evolution and potential confrontation. And, for lawyers and judges, this has included constraints on speech. See Regulating the Speech of Judges and Lawyers: The First Amendment and the Soul of the Profession. There are concerns with expression. They are ethical, professional, and challenging.
At the end of the day, there are things that lawyers and judges are precluded from discussing. I have heard lawyers lament the constraints, and those applicable to judges are far more onerous. For example, lawyers are constrained in their solicitation of clients, their criticism of tribunals, and the candor of their arguments. These are challenges that perhaps a doctor, accountant, or engineer does not face. They are government regulations constraining free speech.
Similarly, Judges are often precluded from discussing politics ("I'm supporting _____ for city council"), the cases before them, and making legal "campaign promises ("I stand for the defendant/accused."). Following the Code of Judicial Conduct, there are meetings I cannot attend, groups to which I cannot belong, and questions I must persistently ask myself about my engagement in the community. It can be tiring at times to explain these constraints and to research the details.
When there is discussion of social media, the concerns remain. This is not because of social media any more than it is because of newspapers. It is not the method of communication that is definitive, but the nature of the communication itself. There is no way I can endorse a political candidate, on the internet or on a billboard, or with a newspaper advertisement. But, I may express birthday wishes to my dog in any of those forums (but that dog spends too much time on social media already, I would never encourage him).
The means by which information is disseminated is worthy of discussion (timing, simplicity, breadth). But access to social media merely facilitates the transmission of speech. It is a platform, an opportunity, and a tool. Social media allows a very rapid and open opportunity to transmit thoughts and perceptions. It allows us to make errors and misstatements easily, rapidly, and broadly. Its great egalitarian benefits pose the greatest threats. That said, the constraints on judicial speech remain even without that facilitation.
As I prepare for August's presentation, I reviewed various complaints prosecuting judges for their (mis)use of social media. It was a great opportunity for introspection. I am as active on social media as any judge I know. There is this blog, Twitter, YouTube, and LinkedIn. I have thus far avoided the raft of other social media opportunities. Throughout, I have been conscious of constraints on my speech. That is tiring, but it is a reality and must be faced in all speech.
The news recently noted the predicament of Superior Court Judge Gary N. Wilcox, a New Jersey jurist of significant experience. He must be unreservedly brilliant; he went to Harvard Law. Everyone I have ever met that attended Harvard has assured me that everyone that attends that school is unquestionably brilliant. Unfortunately, I have been unable to discern objective indicia of such brilliance in more than a few.
Judge Wilcox is in the twilight of his service, nearing the mandatory judicial retirement age. There is a rub. In what professions do we deem age as a conclusive bar to inclusion? Must doctors, politicians, or authors retire at 70? A constraint on judges different than on others, which is similar to the endemic speech constraints. Judge Wilcox has recently become enamored with the vast expanse that is social media and has engaged TikTok to convey thoughts and sentiments (or not). Some see the complaint recently filed against him as a great issue of freedom of speech.
Judge Wilcox has striven to conceal himself, posting videos under a fake name (Sal Tortorella). But, he has also left some clues. Apparently, he does not disguise his appearance in the videos. He allegedly appears in his judicial robes; some videos use the courthouse premises and even chambers as a backdrop. That said, anyone can walk the halls of a courthouse and robes are easy to obtain. As far as the news coverage is concerned, there is no patent "I am actually a judge" expressed by Judge Wilcox.
Does it matter that the videos are widely available? Does it matter that they leave the impression the star is a judge? If the videos are appropriate behavior, why use a fake name? If it is inappropriate, why leave such patent identification so ready? Perhaps the answers to all these are more clear to others. After all "Harvard" must equate to unequivocal brilliance. Perhaps some of the rest of us simply don't see the answers as readily as brilliant minds do?
In free speech, there are many issues. In a general sense, government constraint on speech is far more accepted in America if it does not address the content, but the method. We have come to accept "time, place, and manner" restrictions more readily. As Steve Martin reminded decades ago, it is inappropriate to yell "fire" in a crowded movie house, but o.k. to yell "movie" in a crowded firehouse. It may be about content. Conversely, you may hold a Taylor Swift concert, just not in your tiny backyard. It is not a censorship of her music, but a recognition of the impact such an event would have in such a small space.
The problem that is perceived with Judge Wilcox perhaps has to do with the selection of material, the content. To be clear, it appears that the judge says nothing in these videos. He is alleged to lip-sync the words that others have chosen to say. Some will see that as a distinction and others as an excuse. That said, it will be a challenge to be faced in the ongoing investigation up in New Jersey.
The New York Times labels some lyrics that the judge lip-syncs "profane." The New York Post instead labels them "racy." Beauty may not be all that is in the eye of the beholder. There are a multitude of song lyrics in this world that are inappropriate in various settings. You might listen to them in your car, but might readily agree they are NSFW (not safe for work). More than one person has been "cancelled" for speaking an inappropriate word, or worse fired. However, the same word has been uttered literally hundreds of times in various musical expressions.
This has implications. Some explain that such word use is appropriate for some and not for others. There are multiple perspectives perhaps, but in America today, various words have become taboo, depending upon one's identity. Perhaps that is dependent on perception of identity, but that discussion could be its own post at least. And, that explanation touches on whether a concert-goer may intone such a word while singing along? The conclusion seems to be that the fans may sing along, but various genders and ethnicities should be careful to skip various lyrics as they come along. The implications are interesting.
Can you imagine that one might be disciplined for viewing or listening to something at work? Can you imagine that one might lose a job because of their appearance, grooming, clothing choices, personal choices (smoking), and more? Does an employee, in vis/her/his workday have the right to free speech that is enshrined in our Constitution? Or, is it permissible for an employer to forbid an employee from concluding each work telephone call with a haughty "up your nose with a rubber hose?"
Yes, that is a contrived phrase. It was written into a sitcom in the 1970s. The writers were apparently concerned that other phrases of equal derision could not be used on television (censors, you see, what about that free speech thing?). They wrote this humorous alternative to satisfy the censors and constraints of television. Not social media, television. Turns out there are words you cannot say in some settings. Turns out there are constraints on free speech for more than just lawyers and judges.
Social media does not change speech. It does not change the rules regarding judicial speech. It merely affords more ready and rapid dissemination of information, performance, and perception.
The issue for Judge Wilcox is perhaps not therefore a social media issue. It is seemingly maybe far simpler, a speech issue. He may have recognized that. One of the videos allegedly includes him wearing a shirt that said "Freedom of Speech." He is not being investigated for mouthing the words of Happy Birthday, or Winnie the Pooh. His music tastes run instead to "popular rap songs." And, there are arguably some in society that find various words in some music to be "racy" or worse.
The Judge's music selections are said to include "explicit references to violence, sex and misogyny." Is it permissible for a man to sing derogative terms for women? Are the judge's selections pertinent, or is this perhaps a sign of our times? Lyrics have long been suggestive, double-entendred, and even racy. There was consternation about lyrics in the 1970s, the 1960s, and before. But, there is seemingly an increasing degree of transparency in lyrics? The suggestion, and inuendo of yesteryear has to some extent been replaced with "explicit." Some of the lyrics in question are Rhiana's Jump and Busta Rymes' Touch It and Nas' Get Down. Some might not appreciate particular references therein, others might.
The complaint here alleges that the Judge's selections included “profanity, graphic sexual references to female and male body parts, and/or racist terms.” Does the pop-culture popularity of those lyrics render them acceptable in society? Or, if concertgoers cannot appropriately even sing along to such lyrics is that a reminder those words are not universally acceptable? And even if they are acceptable in a concert, a park, or other public forum, does that make them appropriate for a judge? And if they are appropriate for a judge, then a judge in robes in a courthouse? I find myself wondering what various perspectives would be advanced in a debate about this.
Are there words and actions that do not belong in courthouses and the legal, or judging profession? See A Miserable Example (February 2022). There are periodically odd occurrences with judges. It was Bound to Happen (November 2022). Are there appropriate distinctions as to content, time, place, and manner?
Judge Wilcox is accused of “poor judgment," "disrespect for the judiciary," and "an inability to conform to the high standards of conduct expected of judges.” Do the selections of lyrics demonstrate a respect for, or more pertinently a disrespect for any person or group? Might one conclude from those references a lack of consideration for the perspectives of some person or group? Might that display some diminished impartiality, some bias?
Would it matter that the Code of Judicial Conduct goes beyond the real, actual, and demonstrable? The Code precludes more. It explicitly precludes "the appearance of impropriety." From whose perspective? In a world of increasingly perspective-driven conclusions, who is to say that a particular word is "racy" or "profane?" The law long ago gave us such standards as the "reasonable person." That is a collective, a conjecture, and a conclusion. What the reasonable person would or would not conclude is dependent on who is envisioned as reasonable and thus we are back to beauty and the beholder.
Of particular note, there is discussion in the Judge Wilcox news coverage of intent. The law is full of definitions that depend upon intent. Many offenses are actionable only when there is intent to accomplish some end or result. A supporter of Judge Wilcox reassures that no one perceives in these videos "any desire to do any harm." Should intent matter? May a judge be inappropriate and even biased as long as the judge does not intend to be so? That same supporter reminds that “Hindsight is 20-20.” Looking back, perhaps the videos, the nom de plume, and the lyric selections were not the best idea? Does it matter that this judge has the advantage of being a brilliant Harvard Law grad? Would we hold the brilliant to the same standard as others or to a higher standard?
There will be significant discussion of this case among judges. There will be questions of whether the content of the videos, the specific topics, words, and images are problematic or actionable. There will be discussion of the perceptively racist terms allegedly mouthed and the perceived or actual incongruity of society's perceptions and beliefs as regards the use of particular words.
Are there words that are inappropriate per se, or is all speech judged through the lens of who uttered it, their perspectives, their background, and their experience? Stated differently, is a particular word inappropriate or offensive in itself, or does it matter who says that word? One of the Judge's supporters says so, noting the lyrics are of “mainstream performers.” Would it be more troublesome if the songs selected were those of less-known writers/performers? Is the acceptability of a word dependent on the fame or acceptance of the source?
The Judge's support admits that perceptions differ, offering that the lyrics "clearly elicit() a different response depending on who is listening.” And in that there may be friction. If the question comes right down to individual perceptions, is there a chance someone might be offended by Happy Birthday? Should we be concerned about mouthing the words to it?
Does it matter whether the words are spoken or not? In this instance, the judge did not apparently utter a single syllable. He pretended to. He mouthed the words that were in lyrics. Is the mouthing of words equivalent to using them? If such words are offensive or worse, is there actionable harm in mouthing them? If a concert-goer skips some insensitive or inappropriate lyric during the singalong and mouths it instead, is the goer still a misogynist, a racist, or worse?
If instead of mouthing a lyric, what if the judge mouthed a misogynist, genderist, or racist word that a witness was saying on the stand. What if every time a witness sarcastically referred to some hapless litigation party as a "genius," the judge looked at that party, or the jury, or the gallery and mouthed the word "genius?" Would it matter that the judge did not speak the word? Or, might that present an "appearance of impropriety?"
Yes, there is much to unpack in this story. It serves us well if we take the time to strive to understand the perspectives. The judge's, the complainant's, and the public's. There is much here that is worthy of open and frank discussion and consideration.
