Facebook Posts in Opioids Case Show Social Media Risk for Judges

A Tennessee judge whose Facebook posts led to his removal from the bench in a local-government lawsuit against opioids makers ran afoul of one of the oldest ethics rules in the book, experts on judicial ethics say.

Circuit Court Judge Jonathan Lee Young created the impression that he had assumed the role of a “voice for change in the larger societal controversy over opioids” rather than limiting himself to being an impartial judge in a concrete dispute between parties, the Tennessee Court of Appeals said in disqualifying Young from the case.

He also gave the case’s drug-company defendants an easy way to get rid of him once they had concluded he was hostile to their cause.

The dilemma of judges finding themselves in hot water over social media use is becoming increasingly common, according to Agnieszka McPeak, director of Gonzaga University’s Center for Law, Ethics and Commerce.

This is because they’re “the most constrained” professionals in the legal field, having “to maintain not just impartiality but an appearance of impartiality,” she said.

Young’s error was basic: commenting at all on an open case before him, both in the press and on social media, according to Charles Geyh, a professor at the Indiana University Maurer School of Law.

“The codes of conduct are pretty uniform on this: You don’t talk about pending cases in ways that could give the impression that you weren’t going to be fair to the parties,” he said. “The judge in this case appears to have done just that, by doing an interview in which he talked in pejorative terms towards a party in an ongoing case, and then elaborating on that on Facebook. Those are ethical red flags.”

Young didn’t respond to a request for comment.

The lawsuit, filed by 13 Tennessee counties and a score of cities against Purdue Pharma L.P., Endo Pharmaceuticals Inc. and other opioid makers and national pharmacy chains, alleges that the drugmakers and pharmacies were responsible for the ravages of the opioid crisis in the region because of their failure to conduct appropriate oversight over the increasingly widespread use of their products.

Tennessee is one of the hardest hit states in the opioid epidemic, and the numbers have gotten dramatically worse during the Covid-19 pandemic, according to the state Department of Health. Nearly 2,400 people in Tennessee died from an opioid overdose in 2020, a 55% increase over 2019.

In addition to disqualifying Young from presiding over the lawsuit, the court of appeals tossed out a sanctions order that Young had entered against alleged discovery violations by Endo Pharmaceuticals, and remanded the case to the presiding judge of Tennessee’s 13th Judicial Circuit for transfer to a different judge.

Facebook Comments

Young’s comments included criticism of the litigation conduct of one of the drugmakers in an interview with a reporter and exchanges with readers on Facebook about the local opioid crisis, media coverage of the case, and the influence of the pharmaceutical industry.

His Facebook page appeared to be devoted at least in part to his re-election campaign, the court of appeals said.

“This is risky terrain for a judge, because it’s easy to create the perception that you’ve lost your way as a neutral and are becoming a cheerleader for a cause,” Geyh said.

The bottom line is that judges shouldn’t comment on a pending case until the case is “completely over,” said Robert McBeth, a limited-jurisdiction judge in Seattle who has taught judicial ethics at the National Judicial College since 2000.

“When judges start commenting when cases are still pending, it creates the impression that they’ve already made up their minds so we don’t need to hear anything more,” he said.

Fear of missteps has led many judges to steer clear of social media, though this result has its drawbacks, McPeak said.

Judges “need to know how it works and why parties and witnesses act a certain way online,” she said, adding that “we should demystify the judicial system by making them human.”

Social Media as Weapon

Judges who choose to participate in social media also should understand how the parties in a case make use of social media as a weapon in litigation, said Harry Nelson, founding partner of life sciences firm Nelson Hardiman LLP.

Social media can be a treasure trove of evidence of bias from judges and jurors, and Young’s social media posts provided “rich fodder” for the drugmaker defendants, he said.

“Judge Young used terrible judgment by posting and liking posts—and then not recusing himself,” Nelson said. “The idea that this wouldn’t be picked up by thorough lawyers is absurd. Everything you do publicly as a judge is fair game, and social media is a huge pitfall.”

Wealthy defendants facing courtroom humiliation have a strong incentive to comb through social media posts for evidence that will help their cases, said Charlotte Bismuth, a former assistance district attorney in New York City with experience in opioid-related cases.

“We never should be surprised by the lengths to which deep-pocketed defendants will go, especially those, like Endo, who face profound reputational damage, to disqualify all arguments and players who oppose them,” she said.

The case is Clay County v. Purdue Pharma L.P., Tenn. Ct. App., No. E2022-00349-COA-T10B-CV, Opinion 4/20/22.