Opinion 16-05

January 28, 2016

Digest:         A full-time judge may participate in non-commercial podcasts about New York legal issues, or science fiction and comic book characters and legal issues that may arise in fictional works, subject to generally applicable limitations on judicial speech and conduct, such as the public comment rule. The judge may be identified as a judge, but his/her participation must not be used to promote or market the podcast.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C)); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); Opinions 15-162; 15-30; 13-158; 11-115; 10-138; 10-102; 09-98; 06-105; 05-28; 01-31; 99-145; 89-146.

Opinion:

         A full-time judge asks if he/she may participate as an unpaid guest on two categories of non-commercial internet podcasts.¹ The first group of podcasts focus on “science fiction/comic book characters” in television, cinema, and literature, as well as legal issues that may arise in such fictional works. The judge might discuss, for example, if New York-based stories are legally accurate, where the “purpose of the show is to entertain while teaching some law.” The second set of podcasts “discuss legal issues in NY, such as evidentiary rules, criminal procedure etc.” The judge would record the podcasts from home in off- hours.

         A judge must always 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]). A full-time judge may not serve as an “active participant of any business entity” (22 NYCRR 100.4[D][3]) but may speak, write, lecture, teach and participate in extra-judicial activities, subject to all applicable limits in the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[B]). For example, the judge’s extra-judicial activities must be compatible with judicial office and must not cast reasonable doubt on his/her impartiality, detract from the dignity of judicial office, or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge also may not publicly comment on pending or impending proceedings in any court in the United States or its territories (see 22 NYCRR 100.3[B][8]) or lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]).

         The Committee has advised, regarding internet-based social networks and internet blogs, “the question is not whether a judge may use” such technologies, “but how he/she does so” (Opinion 10-138). This principle applies to podcasts, which may be roughly analogized to traditional radio or television broadcasts. The Committee has advised a judge may participate in creating and producing a video to provide information about the history and “current capabilities” of the court where the judge serves (see Opinion 13-158); may appear on a radio show hosted by a local attorney to discuss legal topics (see Opinion 09-98); may appear monthly on a local television news broadcast to answer questions about a predetermined topic relating to the criminal justice system (see Opinion 10-102); and may host a regularly scheduled television show about the law, including court procedures (see Opinion 89-146). A judge also may be profiled in a magazine targeting the legal community where the article will contain photos, a brief biography and the judge’s comments about his/her judicial duties (see Opinion 11-115). Although the Committee has never stated whether a judge may publicly discuss or analyze “science fiction/comic book characters” in TV, cinema, and literature, a judge may write and publish fiction books, including children’s books (see Opinions 15-162; 06-105; 99-145). Also, a judge may write and publish a book review of a work of fiction, but the review may not be used to promote the book (see Opinion 05-28).

         The Committee likewise concludes the judge may participate in the described podcasts, subject to generally applicable limits on judicial speech and conduct. For example, the judge may not comment on pending or impending cases in any court in the United States or its territories (see 22 NYCRR 100.3[B][8]; see also Opinions 15-30 [discussing the broad reach of the public comment rule]; 01-31 [“This prohibition applies even if you use fictional names ‘to protect both the innocent and the guilty.’”]), and his/her participation may not be used to promote the podcasts (see 22 NYCRR 100.2[C]; see also e.g. Opinions 05-28 [judge who writes book review “should take care, to the extent possible, that the review not be used in any way to promote the sale of the book”]; 99-145 [judge who writes and publishes fictional works must take care “that the judge's judicial position is not exploited” in promoting the works]). Nonetheless, the judge need not conceal his/her judicial identity when engaging in this permissible extra-judicial activity (see e.g. Opinion 06-105).

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         ¹ Merriam-Webster defines “podcast” as “a program (as of music or talk) made available in digital format for automatic download over the Internet” (definition accessed 6/2/2016). In essence, podcast creators may generate an ongoing series of audio or video programs which are recorded and “broadcast” on digital media; people may access individual episodes or “subscribe” to the series. Because podcasts may be generated inexpensively at home or on-the-go using widely available technology, many podcasts – especially those generated by fans of particular fiction genres – are essentially non-commercial and accessible for free.