Facebook posts in opioid case show risk of social media for judges
A Tennessee judge whose Facebook posts led to his impeachment in a local government lawsuit against opioid makers broke one of the book’s oldest ethics rules, according to experts in judicial ethics.
Circuit Court Judge Jonathan Lee Young gave the impression that he had taken on the role of a “voice of change in the broader societal controversy over opioids” rather than merely being an impartial judge in a concrete dispute between the parties, the Tennessee Court of Appeals declared in disqualifying Young from the case.
He also gave the drug company defendants an easy way to get rid of him once they concluded he was hostile to their cause.
According to Agnieszka McPeak, director of the Center for Law, Ethics and Business at Gonzaga University, the dilemma of judges who find themselves in hot water over the use of social media is becoming increasingly common. .
This is because they are “the most constrained professionals” in the legal field, having to “maintain not just impartiality but an appearance of impartiality”, she said.
Young’s mistake was fundamental: commenting at all on a case open to him, both in the press and on social media, according to Charles Geyh, a professor at Indiana University’s Maurer School of Law.
“Codes of conduct are pretty consistent on this: you don’t talk about current affairs in a way that might give the impression that you’re not going to be fair to the parties,” he said. “The judge in this case appears to have done just that, doing an interview in which he spoke in derogatory terms towards a party in an ongoing case, and then expanding on that on Facebook. These are ethical red flags.
Young did not respond to a request for comment.
The lawsuit, brought by 13 Tennessee counties and about 20 cities against
Tennessee is one of the states hardest hit by the opioid epidemic, and the numbers have worsened significantly during the Covid-19 pandemic, according to the state Department of Health. Nearly 2,400 people in Tennessee died from an opioid overdose in 2020, a 55% increase from 2019.
In addition to disqualifying Young from presiding over the trial, the appeals court overturned a sanction order Young had issued against alleged discovery violations by Endo Pharmaceuticals, and returned the case to the presiding judge of the Tennessee 13th Judicial Circuit. for transfer to another judge.
Young’s comments included criticism of the judicial conduct of one of the drugmakers in an interview with a reporter and exchanges with readers on Facebook about the local opioid crisis, media coverage of the case. and the influence of the pharmaceutical industry.
His Facebook page appears to be devoted at least in part to his re-election campaign, the appeals court said.
“It’s risky ground for a judge because it’s easy to create the impression that you’ve wandered off as a neutral and become a cheerleader for a cause,” Geyh said.
The bottom line is that judges shouldn’t comment on an ongoing case until the case is “completely over,” said Robert McBeth, a limited jurisdiction judge in Seattle who teaches judicial ethics at the National College. of the judiciary since 2000.
“When judges start commenting while cases are still pending, it gives the impression that they have already made up their minds, so we don’t need to hear any more,” he said. .
Fear of missteps has led many judges to avoid social media, though that outcome has its downsides, McPeak said.
Judges “need to know how it works and why parties and witnesses act a certain way online,” she said, adding that “we should demystify the justice system by making them human.”
Social media as a weapon
Judges who choose to participate in social media must also understand how parties to a case use social media as a weapon in litigation, said Harry Nelson, founding partner of life sciences firm Nelson Hardiman LLP.
Social media can be a treasure trove of evidence of bias on the part of judges and jurors, and Young’s social media posts have provided “rich fodder” for the drugmaker’s defendants, he said.
“Judge Young showed terrible judgment by posting and liking the posts and then failing to recuse himself,” Nelson said. “The idea that this would not be taken up by competent lawyers is absurd. Anything you do publicly as a judge is fair game, and social media is a huge trap.
Wealthy defendants facing courtroom humiliation have a strong incentive to comb through social media posts in search of evidence that will help their cases, said Charlotte Bismuth, a former assistant district attorney at New York with experience in opioid cases.
“We should never be surprised at the efforts of deep-pocketed defendants, especially those, like Endo, who face deep reputational damage, to disqualify all arguments and players who oppose them.” , she said.
The case is Clay County v. Purdue Pharma LP, Tenn. Ct. App., No. E2022-00349-COA-T10B-CV, opinion 20/04/22.