Opinion 18-47

March 29, 2018

Digest:         A full-time judge may participate in a free community performance of The Vagina Monologues by reading short factual/introductory paragraphs. However, if the judge participates in any question-and-answer session with the audience, he/she must abide by all applicable limitations on judicial speech and conduct.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3); 100.5(A)(1)(I); Opinions 18-48; 18-36; 17-134; 17-38; 16-179; 15-133; 10-128; 10-57; 00-24; 98-155; 98-101.

Opinion:

         A full-time judge asks if he/she may participate in a free community performance of The Vagina Monologues hosted at a local public library, by reading “a few short factual/introductory paragraphs” for certain segments. The playwright’s website describes the work as follows:

An Obie Award-winning whirlwind tour of a forbidden zone, The Vagina Monologues introduces a wildly divergent gathering of female voices, including a six-year-old girl, a septuagenarian New Yorker, a vagina workshop participant, a woman who witnesses the birth of her granddaughter, a Bosnian survivor of rape, and a feminist happy to have found a man who “liked to look at it.”

We understand the event is not a fund-raiser, is non-commercial in nature, and is not sponsored by or affiliated with any political organization. The judge further notes he/she will not be compensated and the promotional material does not list any of the individuals participating in the event.

         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 judge’s judicial duties take precedence over all his/her other activities (see 22 NYCRR 100.3[A]). Thus, all extra-judicial activities must be compatible with judicial office and must not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Further, a judge shall not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]), and must not engage in any direct or indirect political activity except as specifically authorized by law or by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][1][I]).

         A judge must be careful not to be “associated with matters that are the subject of litigation or public controversy” (see Opinion 98-101; see also 17-38) and may not display on his/her vehicle a slogan which has been adopted by a partisan political party (see Opinion 10-128). However, a full-time judge may perform in a community play sponsored by a not-for-profit arts center (see Opinion 10-57); may act, under his/her own name, in a community theater production, and be compensated, where the organization is a not-for-profit entity and no reference is made to the judge’s judicial status (see Opinion 00-24); and may perform in a presentation of songs from a Gilbert and Sullivan operetta on behalf of a not-for-profit organization, provided the performance is not a fund-raising event (see Opinion 98-155).

         While the subject of The Vagina Monologues may be of continuing interest, we note the play debuted over two decades ago.¹ The judge’s proposed involvement -- reading brief factual introductions to certain segments of the play -- does not appear likely to thrust him/her unnecessarily into the center of public controversy, detract from the dignity of judicial office, or cast reasonable doubt on his/her capacity to act impartially as a judge. After all, the audience will readily understand and appreciate that the judge’s participation as a reader is scripted by the playwright. Nor is there any indication the performance is sponsored by or affiliated with any political organization.

         Accordingly, we conclude the judge may participate by reading brief factual segments at this free community performance of The Vagina Monologues.

         However, if the judge participates in any unscripted dialogue with the audience, such as a question-and-answer session following the scripted performance, he/she must abide by all applicable limitations on judicial speech and conduct (see e.g. Opinion 18-48).  For example, the judge must be careful that his/her comments do not cast reasonable doubt on his/her capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]) or otherwise call into question the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).

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¹Its aim, broadly speaking, seems to be to promote diversity or inclusion, by bringing to light a variety of uniquely feminine experiences and voices on topics that have not always been discussed in public (cf. Opinions 15-133 [judge may speak about his/her experience of becoming the first judge of a particular gender and ethnicity in a particular locale]; 17-134 [judge may be an officer or director of an entity intended to help promote women into leadership positions across all fields of endeavor]; 16-179 [judge may be a member of an all-female volunteer EMT service established to expand opportunities for women in the community and to preserve significant religious or cultural values of legitimate common interest to community members]; 18-36 [discussing prior opinions about promoting diversity in the legal profession]).