Opinion 15-121

June 11, 2015

Digest:         Subject to certain limitations, a judicial candidate may permit his/her campaign committee to establish Facebook connections with the campaign committees of other candidates on the same slate.

Rules:          22 NYCRR 100.0(A); 100.0(Q); 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(c)-(f); 100.5(A)(2); 100.5(A)(2)(ii)-(iv); 100.5(A)(4)(a)-(c); Opinions 12-84/12-95(B)-(G); 09-176; 01-99; 91-94.

Opinion:

         The inquiring judge is a candidate in his/her window period for election or re-election to judicial office, and says his/her campaign committee has set up a Facebook page. The judge asks if he/she may permit the committee to “like” another judicial candidate’s campaign committee on Facebook, or to add another candidate’s campaign committee as a Facebook “friend.”

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Accordingly, a sitting judge may not engage either directly or indirectly in any political activity except as authorized by the Rules Governing Judicial Conduct or by law (see 22 NYCRR 100.5[A][1]). However, a judicial candidate, i.e., a judge or non-judge who is seeking public election to judicial office, may personally participate in his/her own campaign for judicial office during the designated “window period,” subject to certain limitations (see 22 NYCRR 100.0[A]; 100.0[Q]; 100.5[A][1][c]; 100.5[A][2]). For example, the campaign must be conducted in a manner consistent with the impartiality, integrity and independence of the judiciary (see 22 NYCRR 100.5[A][4][a]), and the candidate may not, directly or indirectly, publicly endorse or publicly oppose (other than by running against) another candidate for public office (see 22 NYCRR 100.5[A][1][e]; see also e.g. 22 NYCRR 100.5[A][1][c]-[d], [f]). Subject to these and other limits, however, a judicial candidate may appear in media advertisements and may be listed on election materials along with the names of other judicial and non-judicial candidates as part of a single “slate” of candidates (see 22 NYCRR 100.5[A][2][ii]-[iv]).

         The Committee has advised that a judicial candidate may include a link from his/her campaign website to a political organization’s website which contains information promoting the judicial candidate’s campaign (see Opinion 12-84/12-95[B]-[G], at Question 5). Specifically, the Committee reasoned that “link[ing] to the website of a political party that has endorsed” the candidate is “a way for the candidate to demonstrate that he/she in fact has obtained the party’s support” (id.). The candidate should be careful that his/her link “is not presented in such a way that it appears to vouch for or adopt the content of the political party’s website” (id.).

         Although the Committee did not address whether judicial candidates may link to each other’s websites in Opinion 12-84/12-95(B)-(G), it is clear a judicial candidate may appear in person or in media advertisements with other candidates on the same slate (see 22 NYCRR 100.5[A][2][iii]) and may campaign door-to-door with other candidates (see Opinion 91-94).¹

         The Committee believes that where, as here, the inquiring judicial candidate is on a slate with other candidates, and the judicial candidate’s campaign committee maintains its own Facebook page (i.e., distinct from any personal page the judicial candidate may maintain), the proposed Facebook connections between the campaign committees of candidates create no more appearance of an impermissible “endorsement” than campaigning door-to-door or appearing in joint advertisements with other candidates. Thus, the inquiring judicial candidate may permit his/her campaign committee to add the campaign committees of other candidates on his/her slate as Facebook “friends” and/or to click “like” on their campaign committees’ Facebook pages.

         The inquiring judicial candidate must, however, instruct his/her campaign committee to refrain from any comments that would create an appearance the candidate directly or indirectly publicly endorses other candidates (see 22 NYCRR 100.5[A][1][c]-[f]; 100.5[A][4][b]-[c]), including by making any comments on other candidates’ qualifications (see Opinions 01-99; 91-94).

         Finally, the Committee emphasizes that any such Facebook connections must be made from the judicial candidate’s campaign committee’s page; it would not be appropriate for a judicial candidate to “like” or “friend” any political Facebook page from his/her own personal Facebook account (see generally 22 NYCRR 100.5[A][1][c]-[f]).

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         ¹ The Committee has previously advised: “The word ‘slate’ is not defined in the Rules Governing Judicial Conduct, and the Committee declines to impose a requirement that a judicial candidate may not appear in any joint advertisements until his/her party has chosen its official slate” (Opinion 09-176 n 1 [citations omitted]).