There are constraints on a judge's activities. The Florida Code of Judicial Conduct is clear in its prohibitions on the lending of "the prestige of judicial office" to others and their interests. Canon 2. There are broad categories of impermissible behavior in "extra-judicial activities," Canon 5 A, and specifics on governmental activities, Canon 5. C. Finally, there is the broad prohibition on both "impropriety and the appearance of impropriety." Canon 2.
Beyond these challenges, applicable to those who must run for office or for retention in office, there are specific political constraints in Canon 7. The provisions of Canon 7 apply both to judges and judicial candidates. Those constraints are broad and can be intertwined with the prohibitions in Canons 2 and 5 regarding both impropriety and appearances. This can be complex.
Despite the broad prohibition on various activities, the Code also encourages judicial engagement. Canon 5. B says:
"A judge is encouraged to speak, write, lecture, teach and participate in other extrajudicial activities concerning non-legal subjects, subject to the requirements of this Code."
Thus, there is both encouragement of engagement and limitation on scope.
Into that environment of constraints and encouragement came the social media platforms. And, there were some interesting analyses about judicial involvement in those platforms. Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012), approved, 271 So. 3d 889 (Fla. 2018); Chace v. Loisel, 170 So. 3d 802, 803 (Fla. 2nd DCA 2014); L. Offs. of Herssein & Herssein, P.A. v. United Servs. Auto. Ass'n, 229 So. 3d 408, 410 (Fla. 3rd DCA 2017).
The Florida Supreme Court reviewed Herssein and concluded that judicial presence on social media alone, connection to others there alone, was not sufficient to require recusal or disqualification. This was interpreted as not precluding judicial presence on social media, but a concurring opinion was seen as discouraging such participation and particularly the "friending" of attorneys and others likely to appear before the judge. L. Offs. of Herssein & Herssein, P.A. v. United Servs. Auto. Ass'n, 271 So. 3d 889 (Fla. 2018). See Just Because We Can Be Friends (November 2018).
The news in October 2024 described a judge in Pennsylvania "suspended without pay for publishing political social media posts." The judge had been "warned not to do so," The story says that he is accused of "repeatedly and continually posting political social media posts despite warnings from a supervisory judge." This is a different peril than the "friends" issue but similarly intertwined with social media.
The allegations note that "judges are not allowed to broadcast their political leanings," and there are references to how such a broadcast might cast doubt on a judge's impartiality. CBS News provides more detail, including thoughts of the judge's attorney.
According to CBS, the posts in question included some statements laudatory of particular politicians both national and local. Some were seen as advocating on issues like public spending. This second story notes that the judge has reached a mandatory retirement age so "his time as a judge will end when his suspension does on Dec. 31"
Therefore, this story is likely to conclude without further fanfare, analysis, or exposition. Nonetheless, more coverage of a story like this would perhaps be beneficial to both the public and judges. A better understanding of the constraints on political involvement and discourse would likely help understanding and restraint.
The topic came to me again recently when two people in a larger group made references to the current election cycle. For whatever reason, one of them noted the preclusion on judges with something to the effect of "of course the judge cannot comment." It was only then that I noticed their sub-conversation and on being informed of their political debate I confirmed I cannot discuss such subjects.
Their conversation continued and I moved on to another conversation across the room. I was struck by the dichotomy of the two conversants. Neither of them were judges. One had a clear perception of the prohibition and the other seemed genuinely surprised. There is both hope and frustration illustrated.
It is positive for the public to both recognize and understand that judicial disinvolvement is mandated and appropriate. There is a wall mandated in the Code and its purpose is easily discerned and appreciated.
For some reason, the encounter reminded me of America's perennial non-candidate. Back in 1968, comedian Pat Paulson (1927-1997) announced his candidacy for President on the Smothers Brothers variety show. He was never a serious contender. His parody of the election process caught on. He turned candidacy into a bit, and it was funny.
A great many comedians have found through some gimmick, phrase, or trick. Many will remember “hears your sign,” “you might be a redneck if,“ “I get no respect,” and many more. Paulson‘s calling card became his incessant and repeated candidacy for the presidency. Despite the character of that parody, it would likely have even been inappropriate for a judge to endorse or support him.
A "Paulson for President" shirt might be construed as humor or an appearance of political partisanship—perhaps not today. I have struggled in recent days to find anyone else who remembers Paulson. He has passed away, and perhaps a judge's reference to him would bring neither attention nor ire. But perhaps it would.
It is not the seriousness or viability of a candidate or cause that matters. It is the political involvement of the judge. And, more readily, it is the potential for an appearance of impropriety. Thus, despite the level of office (the much-maligned "dog catcher" trope or the Presidency), the judge should remain disengaged. No bumper sticker, no yard sign, no campaign contribution.
It is a significant constraint. But, it is part and parcel of judicial service. When it comes to politics, the judge should simply say no. Political involvement is inappropriate, and the appearance alone requires disinvolvement.
