US Judges Have a Social Media Problem

Two judges have been suspended for social media posts as ethics panels continue to crack down on online content.
On October 7, Pennsylvania’s Court of Judicial Discipline ruled that the case of Judge Mark Cohen was the worst case of defiance they had ever seen after he refused to stop posting political comments.
“No other case in the history of the Court of Judicial Discipline has involved such defiance post decision,” the eight-judge panel ruled.
“People appearing before judges deserve fair, unprejudiced jurists to weigh their cases,” they added.
The court referenced the previous case of Justice Michael Eakin, who resigned from the Pennsylvania Supreme Court in 2016 after sharing sexually explicit jokes with friends and lawyers through emails and texts.
However, it noted that Eakin had never intended the public to view the posts and had apologized for his behavior. In contrast, Cohen refused to apologize and continued to post political messages.
The court suspended Cohen without pay until his judicial term runs out at the end of the year. As Cohen is 75, he will be age-barred from running for judgeship again.
Cohen, who sat on the Philadelphia Court of Common Pleas, had been posting mostly pro-Democrat comments online, even after the court ruled against him last May and warned him to immediately stop posting political comments online.
Throughout the process, Cohen insisted that his Facebook posts were protected free speech. They covered everything from environmental protection to the minimum wage.
In the same week in New Jersey, Bergen County Superior Court Judge Gary Wilcox was suspended for three months for TikTok videos in which he lip-synced songs with “references to violence, sex, and misogyny,” according to an ethics complaint against him.
In some videos, Wilcox is wearing his judicial robes and in others he is in his court chambers. In some, he was only partially dressed while lying in bed, New Jersey ethics regulations wrote in a complaint to the New Jersey Supreme Court.
Musicians he lip synched to included Rihanna, Miguel and Busta Rhymes and he had previously been warned about his conduct.
“In all 11 of the videos Respondent posted to TikTok, either the content – e.g., including references to violence, sex, and misogyny – location – i.e., in chambers, in the courthouse, and in a bed – or Respondent’s physical appearance – e.g., wearing his judicial robes and/or partially dressed while lying in bed – were inappropriate and brought disrepute to the Judiciary,” the ethics complaint reads.
Newsweek sought email comment on Thursday from Judge Cohen and Judge Wilcox.
Former federal prosecutor, Neama Rahmani, told Newsweek that all judges are prohibited from making prejudicial or inappropriate comments online.
“Each state has its own judicial ethics codes, many of which are based on the Model Rules of Judicial Conduct. They all prohibit judges from making prejudicial or otherwise inappropriate remarks. Racist or sexually harassing remarks would not be protected,” he said.
On Judge Cohen, he said the question is whether political or partisan remarks are protected by the First Amendment and “is more difficult to answer.”
Rahmani, now president of the West Coast Trial Lawyers law firm in California, said it depends on whether the judge is speaking in his or her capacity as a bench officer or a private citizen.
“In Garcetti v. Ceballos, the Supreme Court ruled that government employees can be punished for statements made pursuant to their position as a public employee,” he said. “In other words, there is no First Amendment protection for expressions made pursuant to their professional duties.
“Even if a judge is acting as a private citizen, ethical rules can limit political speech if it furthers the state’s interest in an independent and impartial judiciary and are no more restrictive than necessary.”
New York University law professor Stephen Gillers told Newsweek that judicial ethics rules everywhere forbid judges from engaging in public political activities.
“The judiciary is a non-partisan and non-political branch of government,” he said. “When a lawyer becomes a judge, he or she forfeits certain first amendment rights that belong to private citizens. A separate set of rules aims to encourage public confidence in the courts and judges.”
Talking about Wilcox, he said: “The behavior of Judge Wilcox, even after being warned, seems to have led the judicial ethics commission to conclude that he crossed that line and thereby threatened public confidence in the courts.”