Let the Judges Blog – Adam Wagner

The legal blogosphere has recently been aflame with the news, first published on a magistrate’s blog, that the Senior Presiding Judge has sent new guidance [pdf] to judges banning them from blogging in their judicial capacity. The Senior President Judge has also threatened disciplinary action unless they remove existing content which breaches the new rules.

The key section of the guidance is this:

Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.

The guidance applies to those who blog anonymously because “it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered“.

What to make of this? The first thing to say is that some of the best legal bloggers out there are judicial office holders, including The Magistrate’s Blog, whose anonymous writer has said he is thinking very carefully about what to do, and potentially the wonderful Nearly Legal housing law blog. NL of that blog (who admits to not being a judge), argues that the ban is “short-sighted” and a likely to have a “damaging effect on public understanding of the legal system and transparency“.

A detailed and thoughtful post on the issue has been published by family law blogger, barrister (but not judge) Lucy Reed, who argues:

Any judge or magistrate who opened her mouth before engaging her brain on twitter, on a blog on the radio or in a newspaper or elsewhere ought rightly to be the subject of complaint and due process. It does not require a heavy handed guidance document about web logging for that to happen.

My tuppence

As you might predict, I am with Lucy (and the rest of the legal blogopshere) on this issue. The guidance seems to be a knee-jerk reaction to a problem which does not exist. As Obiter J points out, “I fail to see why the maintenance by any Judge or Magistrate of a responsible blog should adversely affect public confidence in the judiciary.” I probably follow the legal blogosophere as much as anyone, and do not remember ever reading a single inappropriate blog post by a judge.

According to American blogger John Aravosis posts, it’s not all bad:

They didn’t ban judges from blogging all together, so that’s a good sign… Their concerns about anonymous blogging – that it’s not a guarantee that your secret identity won’t be found out – is justified.

But even if things are not all bad, as Lucy Reed suggests, there is still significant work to be done. As the guidance currently stands, it is likely to have a significant chilling effect on current and future judicial blogging. More worryingly, this somewhat heavy-handed response is likely to have precisely the opposite effect than is intended; namely, reducing public confidence in the judiciary by putting paid to the embryonic judicial blogging scene which has – most notably the Magistrate’s Blog – opened otherwise closed doors to court rooms and the everyday concerns and curiosities of life as a judge.

The effect of these new rules is potentially very widespread. Lots of barristers sit as part-time judges, whether in the County Court, as Deputy High Court Judges or Recorders. This guidance effectively bans them from blogging, as anyone would be able to find out that they are judges simply by checking their chambers profile.

A more enlightened view

The main problem here is the starting point. It appears that someone has identified a problem, being the potential (although until now, only theoretical) that judicial blogging may undermine public confidence in the judiciary. Indeed, this seems to reflect the rather unfortunate proposed new guidance on Continuing Professional Development from the Bar Standards Board.

But why not start from a different position, that judicial blogging could be a force for good, a way to bring the public closer to the law? This seems to be the position in the United States, where the President of the National Judicial College has said this:

As long as judges are using blogs to enhance public education and understanding of our justice system and not compromising the integrity of cases, then judicial blogs could serve and promote a greater understanding of the challenges and difficulties judges face in advancing justice

Obiter J has posted more on the US view, which should be emulated here. Surely any errant judicial blogger (of which I repeat, there are currently none) can be brought into line using the already-existing disciplinary procedures available. The new guidance is akin to banning driving so as to prevent speeding. Or to coin a phrase which will be familiar to readers of this blog, a disproportionate means of achieving a legitimate end.

Like Nearly Legal, I will finish by reminding readers of the words of Lord Neuberger, the new President of the UK Supreme Court, that the Judiciary should

foster the already developing community of active informed court reporting on the internet through blogs, and tweeting; we should support the responsible legal journalists; we should initiate, support, encourage and assist public legal education. The great strength of our society is that it is built on the competing voices of free speech. Justice to be truly open must join its voice to the chorus; and must ensure that inaccurate or misleading reporting cannot gain traction.

In my view, our own judicial guidance needs a bit more thought. Social media can be an opportunity rather than a threat for our legal system.

This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks