At Relativity Fest 2024, David Horrigan, discovery counsel and legal education director at Relativity, opened the eleventh annual Judicial Panel with an observation.
Looking back to early planning for the first Judicial Panel in 2013, and citing case law on the political question doctrine, David recalled that initial decision to “Keep politics out of it.” Then, David addressed the seeming contradiction with this year’s topic: “A lot has changed since 2013.”
The tenor of this year’s panel certainly rang a bit differently than past sessions, as our distinguished guest jurists spoke directly about the political repercussions of their roles; a few of the most intense topics of pop culture today; and how free speech and respect for the judiciary should, but often don’t, go hand in hand.
This year’s panel featured representation from the United States and the United Kindgom:
- U.S. Magistrate Judge Allison Goddard, U.S. District Court for the Southern District of California
- Hon. Justice Tanya R. Kennedy, Associate Justice, Appellate Division, First Department
- U.S. Magistrate Judge William Matthewman, U.S. District Court for the Southern District of Florida
- Dr. Victoria McCloud, Judge, England and Wales (Ret.)
- U.S. District Judge Xavier Rodriguez, Western District of Texas
David, always a thoughtful moderator, posed questions to the panel relating to threats to the judiciary, issues of free speech, and more.
Keep reading for a recap of the session’s biggest takeaways.
‘A Judge Shall Not Be Swayed’
ABA Model Rule of Judicial Conduct 2.4 provides, “A judge shall not be swayed by public clamor or fear of criticism.” But, David asked, is that even possible in today’s polarized and often toxic political climate?
David also cited a 1997 article by Stephen Bright, which noted that “increasing political attacks on the judiciary by both major parties and candidates for judicial office are diminishing the independence of the judiciary.”
“There is no question that fair criticism plays a role in improving quality of the courts,” Bright noted. “But irresponsible criticism which brings about the removal of judges from office or influences their decisions is incompatible with judicial independence and the rule of law.”
“I actually really enjoy that Bright article. It’s important to gain some historical perspective. It seems we’re in a unique time, but our country has been in times like this before—we just didn’t have social media to show it happening,” Judge Goddard said in response to these passages. “When attacks on the judiciary from third parties come, including press releases where candidates attack judges, it does impact how the public perceives the judiciary, and that is scary to me. Here, at Relativity Fest, I’m talking to people who can make a difference for the judges. Attack rulings, but not judges. And as lawyers, you can help us; we can’t defend ourselves.”
Justice Kennedy noted that civic education can also help to “remove the mystique of a judge and educate the public on what a judge does, and the proper role of a judge.”
She and virtually all of the panelists agreed that lawyers must aid in defending judges. Panelists also emphasized that the nature of social media contributes to the vitriol; this point became a theme throughout the panel.
“What’s exacerbated the problem of threats against the judiciary is the rise of social media. No more driving or mailing to the courthouse, forcing some intent and thought; anyone can, in seconds, send out a threat,” Judge Matthewman said.
In the UK, Judge McCloud said, “We have exactly the same issue: social media. Judges can’t stand up for themselves or speak out. We have this problem of not being able to defend ourselves, and one of the reasons I left the bench was in order to be able to speak up.”
She continued: “We had public figures saying things collectively about trans people, such as myself, to the effect that we are a danger to women. When you’re the only trans judge, that really undermines you doing your job. You cannot stand up for yourself. In the end, to stand up and speak you’re going to have to leave as a judge.”
Coming from the perspective of “a student of history,” Judge Rodriguez explained that “attacks on the judiciary have been going on since this country was created. Thomas Jefferson immediately attacked the ruling about the US Supreme Court being the final arbiter of the law. When Andrew Jackson was doing forced removal of Native Americans in the southeast, the court stepped in and said, ‘You can’t’—and he said, ‘Then raise your own army and stop me.’ The attack on the Court for Brown vs the Board of Education was phenomenal across the nation—signs were going up, billboards along highways, saying, ‘impeach Warren and get rid of this court.’”
Regarding what makes this current period of history uniquely challenging, Judge Rodriguez said: “I agree that the severity of attacks is problematic now, and that part of it is social media. We also have 24-hour news coverage contributing, and mental illness. We here have been saying we can’t do anything; regrettably, some judges are doing something. Not the right thing, I believe, but they’re presenting opinions in an ideological fashion within ideological programs. Judges aligning themselves to certain factions gives the impression that we’re not impartial.”
Turning a Blind Eye to Public Opinion
“Sometimes you have to issue decisions that may not be popular,” David said as he introduced the next topic. “How do you deal with that?”
While having a thick skin is essential, Judge Rodriguez also noted that it isn’t as simple as guarding oneself against hurt feelings.
“I’m a federal court judge and am appointed, but in many parts of this country we elect judges. I think state court judges have it much more difficult than I do. In the federal system, most have the mentality that, once we’ve been appointed, we become neutral and no longer align ourselves to a political party,” he explained. “But in state courts, judges have to run for their positions—and they may not run on platforms, but they have to send signals to their base about which side they’re on. And if they don’t, they pay the price.”
Judge McCloud noted: “I had to make an unpopular decision some time ago related to Donald Trump. I found in his favor; it was about free speech. But it was a very controversial case because the comments in question were about Muslims and safety in London. Trump was sued for libel and I had to give a decision against the Muslims of London without being seen as agreeing with what he was saying, which would’ve sparked riots.”
“I think, in that sort of case, it just has to be telling it like it is: simply explaining what the law is and why you have to dismiss something, and not making it appear as though you have any personal opinion on it,” Judge McCloud recalled. “I was effectively federal, so once you’re appointed you have a modicum of freedom to make unpopular decisions because you can’t be ridden just for those.”
“We’re not supposed to be swayed by popularity at all, and I’m really not,” Judge Matthewman said.
He said he’s found that providing straightforward explanations for his more controversial decisions can help resolve some tension: “If you explain in a clear, concise way why you’ve come to a decision, it may help. I try to talk to the family of a person, say in a criminal case, to explain the rationale for it based on the actual facts in the case. We owe it to ourselves to write a clear decision about why we’ve reached a result, so people can read beyond the headlines and understand what the actual ruling was.”
Judge Rodriguez interjected (with a chuckle) to say: “I think you’re asking too much. Sometimes I write a few paragraphs like that in my orders for journalists, but they still get it wrong.”
Still, the panelists agreed. Neutral, factual explanations are important.
“I try to write a 500–600-word decision at average reading age; that might help,” Judge McCloud said.
Judge Goddard, for her part, explained how the exercise of sitting to write these decisions is one of her favorite things about her job as a judge.
“When I sit down to write an order, I know there’s a judiciary ladder and I’m the bottom rung. I don’t write the law. It helps me stay in my lane to know that, when I have to make a decision, I can’t care about how unpopular it is; I have to make the right decision and one I can stand by,” she explained. “You don’t know what’s going to come on your docket; it’s a random assignment. Sometimes you get something and you go “oh my gosh,” but you just have to do it like any other case.”
Freedom of Speech Considerations for Counsel, Media, and Judge
Next, David referred the audience to ABA Model Rule 3.6—trial publicity. He noted that, while the rule specifies that lawyers can’t disseminate information that could affect a matter, there are a number of exceptions—and lawyers not infrequently take advantage of them to speak to press about an ongoing case.
“How do you control the lawyers?” he asked our panel.
Justice Kennedy was first to offer her perspective, noting that “you have to remember the judge must maintain the integrity of the proceedings as well as ensure that there is a level of respect for the judiciary and the process. Lawyers have First Amendment rights, of course. But there are things a judge can do depending on circumstances” to ensure things don’t get out of hand in or out of the courtroom.
“I was from the school that says you try your case in court. And often when lawyers or clients speak to press, they don’t help themselves that much,” Judge Matthewman observed. “The idea behind these rules is that you don’t want to influence the potential jury. It’s not stifling First Amendment speech; it’s making sure a jury pool hasn’t been poisoned before they ever come to court.”
Judge Rodriguez was particularly passionate about this issue, saying: “All those exceptions—lawyers can get to talking and find some way to point to some exception. I’m troubled by this development; it’s awful in my opinion.” He went so far as to note potential privilege concerns that may underlie lawyers oversharing information with the media: “When these lawyers go to a press conference, what are they saying? They don’t have personal knowledge of the facts; they’re repeating something someone has told them. They go to these mics like the definitive source of all information, but they have no personal knowledge of what occurred. I’m waiting for the kind of case where they repeat something they could’ve only heard from their client and they waive attorney-client privilege by sharing it. Maybe that kind of case will change this.”
On the subject of the media, David noted that the Society of Professional Journalists’ code of ethics instructs members of the press to keep in mind a proper balance of the right to fair trial with public right to know what happens in courtrooms.
“What kind of influence do you see the media have—not on you as jurists, of course, but on cases in general?” he asked.
Judge Rodriguez elaborated on his perspectives here, explaining that striking that balance is crucial—and increasingly difficult in the current media landscape.
“I really believe we need more, and more reputable, journalists. Our traditional media needs to be more robust, but it’s shrinking. So they have financial constraints. And then it’s all getting circulated through social media, through blurbs with paywalls, and nobody gets to the underlying content—just a flash of a 5-word description,” he said. “I ask journalists—and I know your editors take your work and cut it, but if this is the world we’re going to be living in, accuracy, even in the blurb that’ll come before the paywall, is so important. Please be careful about the language and accuracy, because that blurb may be the only thing people see.”
Returning to the subject of judges’ ability to contribute to public discourse, David next asked where the ethical rules allow for judges to speak in public for educational purposes—and where they preclude them from participating in the conversation.
“There’s a major restriction on federal judges. We can’t politick, and can’t go to a victory party for a candidate. Can’t go to support a candidate running for office. We’re not supposed to have bumper stickers or anything of that nature. And when we do speak, we’re supposed to avoid anything that would be partisan,” Judge Matthewman explained for Fest attendees. “We can educate, but we can’t politick. There’s a big difference. Talking about problems affecting the judiciary to educate the public and legal system is allowed, but we have to be careful in our writing and statements to avoid any type of political alignment. We really are supposed to be neutral in that regard. And I know my colleagues and I work very hard to be neutral.”
“You’re definitely limited and that can be really hard, but it can also be really freeing. Not dealing with scrolling through Facebook in an election year is really kind of fantastic in some ways. I live in California and my family is in Tennessee; if you want to see partisanship writ large, you should’ve seen my feed,” Judge Goddard added. “I’m glad we can speak at gatherings like this. I find e-discovery lawyers to be some of the most interested in moving the law forward with society and technology. But I wouldn’t do this sort of thing if it was held by an ideological organization with any political bent. We ask you lawyers to help us prop up the judiciary, and we have that responsibility too—in how we present ourselves. Remaining neutral can be challenging but it’s the right way to do this.”
Protecting the Safety of our Judiciary
Online bickering, inflammatory headlines, and social media slander aside, the fact remains that judges today face very real threats in the course of their daily work. Such rhetoric is not just hurtful; it’s downright dangerous. And it makes a difficult and intense job that much harder.
“We’ve had very heated political rhetoric on LGBT issues in the UK. That actually can lead to a lot of anger. I think people underestimate the extent to which public statements can stir up strong feelings,” Judge McCloud said. “We had a judge attacked by a litigant severely. This type of incident is only increasing in the UK; the polarization of politics has very much come across the pond.”
“I’m in a border district with Tijuana, and for judges the security concern used to come up if you had a cartel case, with organized crime. Now the nature of threats to the judiciary is so different because they come from within this country. So many people live a fantasy life online; it’s very difficult for US Marshals to tell when a person is living a fantasy by making violent comments and threats, and when they’re going to cross over into action,” Judge Goddard said. “Marshals are readily at our service and any time I have a concern I can go to them; they do a full workup and threat assessment. Sadly, it does happen not infrequently. A lot of times it’s not political; it’s coming from people with mental health issues or litigants who don’t understand the system. It’s unfortunate, but the biggest challenge has been discerning what is real and what is a person acting out a fantasy that will never be realized.”
On the subject of threats coming from simple misunderstandings, Justice Kennedy added: “What happened to curiosity? Doing your own due diligence to investigate and read more and not take persons at their word? It’s not just journalists. We all have a responsibility. I’ll stop there.”
“When we make a call, there’s a winner and a loser. That’s just a consequence of the job. Generally those people are not the threat—in criminal cases, especially. I see threats come from two places: one is the mentally ill, which is another issue we have to tackle in this country. Another is the political climate—and this is where I ask that political actors control their verbiage and tone,” Judge Rodriguez implored. “Words have consequences. When political actors use inflammatory language, they need to realize it may have downhill effects on someone who is on the borderline between rational and irrational, and how that person will act. Words have consequences”
