Can a Judge in Criminal Cases Comment on Facebook?

A Texas court set a new low in September 2015 when it ruled that Judge Michelle Slaughter did not violate judicial ethics by posting judgmental comments about controversial defendants in her court on her Facebook page.

Before going further, let me say that I visited Judge Michelle Slaughter’s judicial Facebook page. If you click on her picture, you will see messages such as “The REAL Republican. The ONLY Conservative,” and another: “You crown the year with Your Goodness, and your paths drip with abundance- Psalm 65:11.”  

Now, for the case in which she was disciplined—and she won a reversal.

The Facts: The judge maintains a public Facebook which displays (1) her photo in a judicial robe, (2) photo of the Galveston County Courthouse; and (3) self-description as a “public figure” and as “Judge of the 405th Judicial District Court.” After her election to the bench, the judge was very active in posting comments about matters that were occurring in her court and in utilizing her Facebook page "as a means to educate the public about her court."

On April 28, 2014, a high profile, criminal jury trial was scheduled to begin in Judge Slaughter’s court. The case involved a man charged with unlawful restraint of a child for allegedly keeping a nine-year-old boy in a six-foot by eight-foot wooden enclosure inside the family home. The case became known in the media as “the Boy in the Box” case.

A couple of days before the trial was set to begin, the Respondent posted the following on her Facebook page, “We have a big criminal trial starting Monday! Jury selection Monday and opening statements Tues. morning.” The following day, in response to the above-described post, a person posted the following comment on her Facebook page, “One of my favorite Clint Eastwood movies is ‘Hang 'Em High,’ jus sayin your honor ...” She took down the comment but not before defense attorneys saw it and moved to recuse her (she declined).

The Texas Judicial Commission issued the judge an admonition, and she contested the discipline. She prevailed on appeal. The Special Court of Review concluded:

Our review of the Canons does not indicate any express requirement for judges to patrol their social media websites to either delete or disavow any comments made by others. We are reluctant to impose a requirement of this type in the absence of an express requirement in the Canons.