Opinion 23-01

February 2, 2023

Digest:       A full-time judge may create and participate in a series of non-commercial podcasts to highlight individuals whose accomplishments have had an inspirational and positive impact on the community, subject to generally applicable limitations on judicial speech and conduct. To avoid any possible perception that the judge intends to lend judicial prestige to the individuals the judge selects to interview, the judge should not refer to their judicial status in connection with the podcast.

Rules:        22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(B); 100.4(A)(1)-(3); 100.3(B)(8); 100.4(G); Opinions 22-155; 20-81(B); 20-49; 16-05; 10-138.

Opinion:

         A full-time judge, whose caseload includes criminal cases, would like to produce a series of non-commercial video podcasts featuring interviews with positive role models or heroes in the community. The guests would be selected by the judge, and would include both private citizens and public figures. Each guest would be asked to answer questions suggested by the judge, who may or may not appear onscreen during the interview. The judge proposes to introduce and conclude each podcast episode, and to be identified by name and title as the producer of the series. The judge’s goal is to share positive educational and inspirational messages with the community. The judge would ensure that each podcast episode, when made available to the public, will contain no references to current legal cases or controversies.¹ The judge asks if the proposed podcast series is permissible.

         A judge must always avoid 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 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]). Additionally, a judge’s extra-judicial activities must be compatible with judicial office and must not cast reasonable doubt on the judge’s 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 must 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]). In addition, a full-time judge may not practice law (see 22 NYCRR 100.4[G]).

         We have advised that the question is not whether a judge may use internet-based social networks or other digital media technologies, but how the judge does so (see e.g. Opinions 22-155; 16-05; 10-138). We have applied this principle to podcasts and online streaming shows, comparing them to more traditional forms of broadcast media such as television and radio (see Opinions 16-05; 20-81[B]; cf. Opinion 20-49 [disc jockey]).

         Here, too, we conclude that the judge may create and participate in the described non-commercial podcasts subject to generally applicable limits on judicial speech and conduct. For example, the judge “must not signal a predisposition with respect to particular cases or cast doubt on the judge’s impartiality” (Opinion 20-81[B] [citations omitted]) and must not comment on “pending or reasonably foreseeable cases in the United States or its territories” (id.; 22 NYCRR 100.3[B][8]).

         While a judge may ordinarily be identified as a judge when participating in permissible extra-judicial activities (see e.g. Opinion 16-05), we note that this judge’s proposed podcast focuses on interviewing positive role models or heroes in the community – and the judge will be personally selecting these individuals. Therefore, to avoid any possible perception that the judge intends to lend judicial prestige to those the judge chooses to interview, the judge should not refer to their judicial status in connection with the podcast (see 22 NYCRR 100.2[C]).

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¹ In many instances, podcast episodes are pre-recorded before release, giving the creator greater control over the content.