Judge's Tweets land him in Judge's Jail

That's the gist of an Order entered by the Executive Committee of the Circuit Court of Cook County on August 25, assigning Associate Judge Gregory E. Ahern, Jr. to "restricted duties or duties other than judicial duties in the office of the Presiding Judge of the First Municipal District."

Here, verbatim, are the findings made by the Executive Committee in Special Order No. 2023-121:

On Tuesday, August 15, 2023, the court was informed by an established local media outlet that Associate Judge Gregory E. Ahern, Jr., had used the Internet and his account on the "X" (f/k/a Twitter) social media networking platform to publicly express his agreement with, or support for, comments by other persons that can reasonably be interpreted as suggesting a bias or prejudice that demeans individuals based upon their race, gender, gender identity, or sexual orientation;

If made, the expressions of support or agreement would appear to a reasonable person to undermine Judge Ahem's judicial independence, integrity, or impartiality, in violation of Ill. Code ofJudicial Conduct (2023), R. 3.1."

The Court's Order states that reassignment was made "to promote public confidence in the integrity and impartiality of the judiciary." Banishment to Judge's Jail carries with it, in accordance with the Court's recent practice, a referral to the Judicial Inquiry Board.

This is obviously an incomplete story. I don't like incomplete stories.

In my opinion, at this point anyway, the key words in the Court's Order, quoted above, are that Judge Ahern was reported "by an established local media outlet."

That would suggest that a reporter found whatever-it-was that Ahern had 'expressed agreement or support' for (which I hope is understood may not necessarily be the same thing as 'said') and thought it was so egregious that it was worthy of reporting. Seeking comment from the Chief Judge's Office would be entirely appropriate before running the story -- Journalism 101 stuff -- and the 'established local media outlet' is not, and should not be deemed, responsible for the consequences of seeking said comment.

But where is the story?

When established local media outlets -- even FWIW -- have enough to publish, we publish. Whatever "comments by other persons" that Ahern "publicly express[ed] his agreement with, or support for" are not disclosed by the Court in its Order (I've asked for details from the Chief Judge's Office and I'll update if these are provided). But one would think the "established media outlet" would have run a story. That's where the damning details, if there are any, should be.

But my search this morning has come up empty. I don't subscribe to every "established local media outlet" (is there a list somewhere?) but Google should have ferreted out something, even if the full story languishes inside a paywall.

Non-lawyers reading this post might be expecting me to launch on a First Amendment screed at this point.

But, of course, that's not going to happen.

Judges get a lot of perks with their jobs -- good salary, benefits, deferential treatment from lawyers (especially from wannabe judges) -- many good things. But judges are, by definition, professional neutrals. They leave some First Amendment rights behind when they take their oaths. It's a knowing and deliberate trade-off.

Let's look at Rule 3.1 of the 2023 Illinois Code of Judicial Conduct:

RULE 3.1: EXTRAJUDICIAL ACTIVITIES IN GENERAL

A judge may engage in extrajudicial activities, except as prohibited by law or this Code. However, when engaging in extrajudicial activities, a judge shall not:

(A)  participate in activities that will interfere with the proper performance of the judge’s judicial duties;

(B)  participate in activities that will lead to frequent disqualification of the judge;

(C)  participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality;

(D)  engage in conduct that would appear to a reasonable person to be coercive; or

(E)  make use of court premises, staff, stationery, equipment, or other resources, except for incidental use.

I've eliminated the asterisks that denote use of the defined terms "law", "independence", "integrity", and "impartiality", but the interested reader is encouraged to consult the Code to review these definitions.

For our purposes here, suffice it to say that judges should not publicly express opinions on the issues of the day. Even non-controversial ones. (Or seemingly non-controversial ones. Controversies seem to erupt out of nowhere sometimes.) Any judge who takes a public stance, pro or con, on any issue is, you should pardon the expression, courting trouble.

On the other hand, the Order banishing Ahern is rather delicately worded: It does not say he took a stand or necessarily said anything. Rather, it says he "expressed his agreement with, or support for, comments by other persons."

Judges come from the ranks of lawyers. And lawyers rank among the least technologically sophisticated people on Earth. Think of that poor man in Texas who couldn't get the cat filter off his Zoom feed during Covid. A lot of lawyers used desktop computers more for paperweights than anything else for the longest time. Efiling hath made users of us all... but some may still have limited actual participation in the document creation and filing process.

Could Ahern have merely "liked" something on Twitter? (Sorry, Elon, "X" is really hard for me to write -- it looks wrong.) Could someone have misinterpreted that as agreement or support? Would judges on the Executive Committee necessarily understand that "liking" something on X merely makes it possible to navigate back to it later? I do not suggest that there is an "innocent construction" available here, because I don't know all the facts, but I wonder if it might be possible. My X page -- Twitter page -- used to say "Favorites and RT's indicate interest, but not necessarily agreement."

Which is easy enough for me to say -- first of all, I'm allowed to have opinions, if I wanted to, not that anyone would care, and, second, it's absolutely true in my case: Clicking "like" doesn't automatically mean I actually like, or agree with, the post in question. It might. But then it might also mean only that I may want to look at it again. Sometimes I even do go back and look.

Anyway, today, I've revised my "X" profile to clarify -- 'favorites' having somewhere given way to 'likes' on the Twitter/X platform -- that "'Likes' and RT's indicate interest, but not necessarily agreement." Would a similar profile statement be sufficient to protect a judge against an accusation of 'supporting' or 'agreeing' with a 'liked' post? Whatever the facts may be in Judge Ahern's case, a lot of FWIW readers will want an answer to that question -- and may want to check their profiles, too.

I here mean to express no opinion about what Ahern said, or didn't say, or what he did or did not do online. I don't express any opinion because I don't know what actually happened. If more people refrained from expressing full-throated, full-throttle opinions online until possessed of all relevant facts, we'd all be a lot better off. That opinion, I will express.