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| Judge Jonathan Lee Young |
"We are stuck in a world right now where we've got some young judges who understand social media and some older judges who don't," Judge Young, who is 48, told Law360 on Thursday.
The judge added that he still felt that he didn't say anything inappropriate on Facebook in discussing opioids — even though a state appeals court declared Wednesday that the judge appeared "antagonistic to the interests of those in the pharmaceutical industry" when he discussed opioid litigation in Facebook posts and another interview with Law360 in February.
The appeals court ruling about Judge Young immediately drew the attention of legal ethics experts, who spoke of the line that judges must navigate in maintaining a social media profile and posting comments to those social channels.
The controversy centers on comments Judge Young made about the opioid case between his early February oral ruling and his eventual written Feb. 28 order granting sanctions, including default liability, against Endo Pharmaceuticals over discovery misconduct.
Legal ethics experts said Judge Young stepped out of his role as a neutral arbiter and into a situation where a litigator would reasonably be concerned about whether their client would be treated fairly.
"The big issue here is the appearance of impropriety, which is really important in this era. The courts are under a microscope given our current political context and environment," said William Hamilton, a professor at the University of Florida Levin College of Law. "Courts have to be excruciatingly careful about making sure they're perceived by the public as calling balls and strikes and following the law and not merely responding to your community pressures."
It's not uncommon — and often politically necessary — for state judges to have a presence on social media, whether it's to follow their grandchildren's soccer games on Facebook, to understand how social media works in case it comes up in their court, or to use as part of their reelection campaign, according to Jan Jacobowitz, a lecturer at the University of Miami School of Law who co-authored "Legal Ethics and Social Media: A Practitioner's Handbook."
But when judges start talking on social media about public issues of the day, like the Black Lives Matter movement or COVID-19 mask mandates, that's when they step over the line of the appearance of impropriety, Jacobowitz said.
"That is an age-old standard that has from time to time been challenged, but it is a hard and fast rule," Jacobowitz said. "Even if you don't do anything wrong, if there's an appearance of impropriety and especially in a context like this, such that someone might feel that they're not going to get a fair hearing or trial, then a judge should recuse themselves."
The Tennessee Court of Appeals panel that disqualified Judge Young and vacated his order issuing default liability against Endo agreed that the judge should have recused himself from the case — which he had previously refused to do.
"If a judge's impartiality might reasonably be questioned, the motion to recuse should be granted," the panel said Wednesday. "In this case, it is clear to us that a reasonable basis for questioning the trial judge's impartiality exists."
The severity of a default judgment — a "death penalty" in civil litigation — makes it even more important for a judge to appear impartial and not have any semblance of impropriety attached to the decision, according to John Browning of Spencer Fane LLP, a former Texas state judge and co-author of "Legal Ethics and Social Media."
"So the appellate court's got to say, 'Whoa, this is big dollars, big significant case, big sanction," Browning said. "We need to make sure that it's been done properly, and that the public and the parties will perceive it as being an appropriate exercise of judicial power."
The case will now be sent back to trial court to be assigned to a different judge. The now-vacated default judgment was the second against Endo based on discovery violations by the drugmaker and its former attorneys at Arnold & Porter, after a 2021 judgment.
Judge Young gave an interview in February to Law360 following his oral ruling that Endo Pharmaceuticals was liable by default for opioid abuse, in which he called Endo's failure to produce important documents "the worst case of document hiding that I've ever seen" and "like a plot out of a John Grisham movie."
After that interview, he continued to talk about opioids on Facebook, where the panel said he positioned himself "as an interested community advocate and voice for change in the larger societal controversy over opioids," not an impartial judge.
The panel specifically pointed to a commenter on Judge Young's page who said, "You're not trying to ban drunken bridesmaids on peddle carts."
Judge Young responded, "[N]ope. Opioids," and then "liked" a follow-up comment about powerful Tennesseans' ties to opioids.
Even "benign" social media activity such as a Facebook like or a retweet on Twitter has been a cause for judges being recused from cases all around the country, Browning said.
"Certainly liking a comment is, in effect, a comment. Just as retweeting can indicate agreement or approval," Browning said. "In addition, Young was responsible for more active, more overt social media activity, much of what seems to be in connection with his current reelection campaign."
Judge Young won election in 2014 to an eight-year term and reportedly faces a serious opponent in the Republican primary in May.
"I think that certainly he's conscious of being in an apparently hotly contested political race to keep his bench and probably wants to count whatever qualities he feels will resonate with the electorate," Browning said.
Judge Young on Thursday contested that his comments about opioids were politically motivated, saying he sees the problems of opioids every day in his court.
"Do I think opioid overdoses are too high in our community? Yes. But do I let that go to my campaign? No, I don't," Judge Young said.
The judge said he would hold the same views on opioids regardless of whether he is running for reelection.
"[The appellate court wants] judges to be robots who throw out everything that we've ever seen or known or done," Judge Young said. "I don't think that's the world that we live in."
But it is the 21st century and social media is ubiquitous now, Jacobowitz said.
"Judges are human, but once they put on the judicial robe they, by definition, relinquish some of their rights in terms of participation in society," Jacobowitz said. "And that now extends to the digital world that now extends to social media."
--Editing by Marygrace Anderson.
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