Opinion 23-133

October 26, 2023

Digest:  (1)(a) We cannot provide blanket guidance about attending various public events that invite participants to “stand with Israel,” as the answer requires fact-specific determinations.  (b) A judicial candidate within their window period may contact the Judicial Campaign Ethics Center concerning the propriety of attendance. 

            (2) Subject to generally applicable limitations, a quasi-judicial official may speak on the laws of war; the emotional/spiritual valences of terror, trauma, and moral complexity; the need to reduce and eliminate implicit and overt bias and prejudice; and recent casualties in the Mideast.  The official should exercise discretion and avoid unduly partisan and inflammatory language.

            (3) On these facts, this inquirer should not display or publish for educational purposes an extremely racist and antisemitic cartoon they recently received.

            (4) A quasi-judicial official may publicly discuss their own experiences of racism/prejudice and secondary trauma and their own personal observations of such effects on their family members. 
(5) A quasi-judicial official may (a) display another sovereign nation’s flag at their residence, (b) appear in photographs with flags of other nations, and (c) wear a lapel pin displaying flags of one or more nations at non-court events.
(6) We cannot comment on any remaining issues, as they are subject to multiple factual variations.

Rules:   22 NYCRR 100.2; 100.2(A); 100.2(D); 100.3(A); 100.3(B)(1); 100.3(B)(4); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.5(A)(1); Opinions 22-160; 21-152; 20-92/20-93; 19-50; 17-70; 17-38; 16-85; 16-60; 15-179; 15-171; 06-82; 00-82.

Opinion:

          The inquiring quasi-judicial official, who is also a religious leader, is aware of our advice that judges should not “publicly associate [themselves] with non-legal matters of substantial public and political controversy, such as the Israeli-Palestinian conflict, whether by preaching or writing about them or otherwise” (Opinion 17-70).  The inquirer is deeply troubled and affected by current developments in the Mideast, and asks a series of questions about activities the inquirer would like to undertake in response.[1]

          A quasi-judicial official must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  The official’s quasi-judicial duties take precedence over all their other activities (see 22 NYCRR 100.3[A]).  Thus, all extra-judicial activities must be compatible with quasi-judicial office and must not (1) cast reasonable doubt on their capacity to act impartially as a quasi-judicial official; (2) detract from the dignity of quasi-judicial office; or (3) interfere with the performance of quasi-judicial duties (see 22 NYCRR 100.4[A][1]-[3]).  As for political activities, a quasi-judicial official must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]).  Further, a quasi-judicial official must diligently discharge official duties “without bias or prejudice against or in favor of any person” (22 NYCRR 100.3[B][4]).  The prohibition includes “words or conduct” manifesting “bias or prejudice based upon age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status” (id.).  A quasi-judicial official must not be swayed by partisan interests, public clamor or fear of criticism (see 22 NYCRR 100.3[B][1]), must avoid impermissible comment on pending or impending matters in any court of the United States or its territories (see 22 NYCRR 100.3[B][8]), must not demonstrate a predisposition to deciding cases in a specific way (see 22 NYCRR 100.2[A]), and must avoid improper ex parte communications (see 22 NYCRR 100.3[B][6]). 

1. Events Inviting Participants to “Stand With Israel”

          The inquirer asks if it is ethically permissible to “attend public events” such as “candlelight vigils, solidarity gatherings, rallies, etc.,” where these events are sponsored by not-for-profit religious or cultural organizations and invite participants to “stand with Israel.” 

          As stated, this question is too subject to multiple factual variations for us to provide any meaningful response.  The answer will depend on factors such as the identity of the sponsor(s), the actual focus and purpose of the event, the location of the event, and other matters (see Opinions 22-160 [discussing opinions about participation in protests, rallies, marches, and demonstrations]; 17-38 [March for Science]; 20-92/20-93 [Walk for Justice]). 

          Accordingly, we conclude we cannot provide blanket guidance about whether it is ethically permissible for a quasi-judicial official to attend vigils, rallies, or other public events that invite participants to “stand with Israel,” as the answer requires fact-specific determinations. 

          However, we note that we address this question focusing exclusively on the inquirer’s status as a quasi-judicial official.  Our Judicial Campaign Ethics Subcommittee remains available to consider and address such questions from judicial candidates within their window period.  Thus, those seeking election or re-election to judicial office may contact the Judicial Campaign Ethics Center (https://ww2.nycourts.gov/ip/jcec) concerning the propriety of attendance (cf. Opinion 00-82).   

2. Proposed Topics

          The inquirer proposes to speak concerning several topics in their capacity as a religious leader.[2]  We can only provide general guidance concerning the topics described, bearing in mind that the inquirer should carefully consider how best to frame the discussion in a manner that will maintain public confidence in their independence and impartiality as a quasi-judicial official. 

          It is generally permissible to discuss the laws of war, which is a law-related topic, provided the inquirer “eschews impermissible ex parte communications, political activity, and public comment on pending or impending” cases in the United States or its territories (Opinion 17-70).  The inquirer should exercise discretion and avoid unduly partisan and inflammatory language when discussing such matters.

          As for “[t]he emotional or spiritual valences of terror, trauma and moral complexity,” this topic as described appears unlikely to cast doubt on the inquirer’s impartiality, and is permissible subject to generally applicable limitations on judicial speech and conduct.  Again, the inquirer should exercise discretion and avoid unduly partisan and inflammatory language when discussing such matters.

          A judge or quasi-judicial official may generally speak about the need to reduce and eliminate implicit and overt bias and prejudice (see Opinion 15-179), subject to generally applicable limitations on judicial speech and conduct including the limitations noted above.  

          Finally, with respect to the inquirer’s proposal to discuss Israeli casualties, focusing on “the dignity and value of innocent life transcending nationality or religion,” without also similarly addressing Palestinian casualties, we note that the Rules Governing Judicial Conduct do not prohibit a judge or quasi-judicial official from “holding membership in an organization that is dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interest to its members” (22 NYCRR 100.2[D]; Opinion 15-171).  In our view, the Rules also do not require a judge or quasi-judicial official to hedge every expression of sympathy for one particular religious, ethnic or cultural group, by immediately expressing sympathy for all other groups that may be similarly suffering, even in the same conflict.  Again, the inquirer should abide by generally applicable limitations on judicial speech and conduct including the limitations noted above.[3]

3. Teaching and Publishing About Antisemitism

          The inquirer asks if it is ethically permissible to “publish on social media” or to “teach and/or preach” about antisemitism.  In this context the inquirer further asks if it is ethically permissible to display, for educational purposes, “a noxious antisemitic and racist flyer” that the inquirer recently received.  The inquirer provided an image of the flyer for our review. 

          As previously noted, a judge or quasi-judicial official may generally speak about the need to reduce and eliminate implicit and overt bias and prejudice, subject to generally applicable limitations on judicial speech and conduct. 

          We are not in a position to comment on the overall efficacy or wisdom, from an educational perspective, of sharing an offensive image for the purpose of illustrating the persistence and dangers of racism and antisemitic bias and prejudice. 

          We can nonetheless provide guidance to the inquirer here, as this specific image is an extremely crass and offensive cartoon, tapping into especially vile stereotypes concerning two different groups.  It does not require specialized training or instruction, or even more than a cursory glance, to recognize that it is improper.  On these facts, we conclude the inquirer should not publish the image on social media or display it while teaching or preaching.  The risk is simply too great that the inquirer would inadvertently propagate the very bias they wish to counteract, and undermine the dignity of judicial office, by sharing this particular image. 

4. Teaching and Publishing on Secondary Trauma

          The inquirer asks if it is ethically permissible to “publish on social media” or to “teach and/or preach” about the Mideast violence’s secondary trauma for those exposed to harrowing images.  The inquirer has direct personal experiences and observations to share, some of which arise from caring for a relative with combat-related post-traumatic stress disorder.

          The inquirer may describe their personal experience, including their own experiences of racism/prejudice and secondary trauma and their own personal observations of such effects on their family members.  In addressing these personal experiences and observations, the inquirer may explain and define specialized terms and concepts in order to communicate more clearly.  However, the inquirer should exercise discretion and avoid unduly partisan and inflammatory language when discussing such matters.

5. Israeli Flags

          The inquirer asks if it is ethically permissible to “allow publication of a photograph in which I appear near an Israeli flag” or “display an Israeli flag outside my home.”  When at a synagogue or other outside (non-court) event, the inquirer asks if they may “wear a lapel pin bearing the flags of the United States and Israel.”

          In our view, the Rules Governing Judicial Conduct do not prohibit a judge or quasi-judicial official from (a) displaying another sovereign nation’s flag at their residence, (b) appearing in a photograph with another nation’s flag, or (c) wearing a lapel pin displaying flags of one or more nations at non-court events.[4]

6. Group Discussions of Congregants’ Feelings and Beliefs

          Finally, the inquirer asks if it is ethically permissible to “facilitate my own[] synagogue group discussions of congregant feelings and beliefs concerning Mideast events.”

          We cannot comment on this proposed topic as described, as it is vague and subject to multiple factual variations (see Opinion 16-85; cf. Opinions 16-60; 21-152; 06-82).

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[1] According to the Washington Post, “Israel formally declared war against the Palestinian militant group Hamas on Sunday [October 8, 2023] as it reeled from a surprise attack that killed more than 700 people, opening the way for a major escalation in fighting that already threatened to engulf the region.”

[2] To be clear, we are addressing the first and second questions independently.  Indeed, given our response to the first question, it cannot be presumed that the speaking engagements would take place at a “stand with Israel” event.

[3] The inquirer’s focus on casualties and the loss of innocent life is readily distinguishable from a discussion of the root causes of violence and its solutions, which we note is likely to be highly political and/or controversial and as such, may cast doubt on a judge’s ability to be impartial (see e.g. Opinion 22-160).

[4] We note that the inquirer does not propose to display a foreign flag on the bench or in the courtroom (cf. Opinion 19-50).