May a Judge Host a Football Podcast?

The choose wouldn’t be compensated for internet hosting the podcast. The choose wouldn’t say or do something to advertise the sponsoring radio station, aside from figuring out the station throughout the podcast itself. The choose wouldn’t establish him/herself as a choose and, actually, shouldn’t be planning on utilizing his/her final identify.

As presently envisioned, the podcast could be recorded and later printed over the web. Nevertheless, sooner or later this system may additionally be performed on the radio station.


The query implicates the next provisions of the Code of Judicial Conduct (listed within the order by which they’re mentioned under):

Rule 3.1 (extra-judicial actions);

Rule 1.2 (selling confidence within the judiciary);

Rule 2.10 (judicial statements on pending and impending instances); and

Rule 1.3 (abuse of the status of judicial workplace).

Rule 3.1: The Code of Judicial Conduct encourages judges to be lively members of society. Rule 3.1 (A) of the Code supplies, “A judge may engage in extrajudicial activities, except as prohibited by law or this Code.” Remark 1 to the Rule states, “To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities[,]” together with actions that don’t contain the regulation. Remark 2 to the Rule notes, “Participation in both law-related and other extrajudicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.”

Rule 3.1(A) does, nevertheless, comprise 5 categorical prohibitions:

[W]hen participating in extrajudicial actions, a choose shall not:

(1) take part in actions that can intrude with the correct efficiency of the choose’s judicial duties;

(2) take part in actions that can result in frequent disqualification of the choose;

(3) take part in actions that would seem to an inexpensive particular person to undermine the choose’s independence, integrity, or impartiality;

(4) interact in conduct that would seem to an inexpensive particular person to be coercive; or

(5) make use of court docket premises, workers, stationery, tools, or different sources, aside from incidental use for actions that concern the regulation, the authorized system, or the administration of justice.

Rule 1.2: Rule 3.1(A)(3) above is a particular illustration of the final obligation beneath Rule 1.2 {that a} “judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Remark 2 to Rule 1.2 reminds judges that their conduct on and off the bench shall be scrutinized by the general public and restricted by the Guidelines to a level that could be burdensome if utilized to different residents. Remark 1 to the Rule makes clear that the “appearance of impropriety” commonplace applies to “both the professional and personal conduct of a judge.” Remark 3 to the Rule notes that it’s unattainable to listing all the doable conduct that “compromises or appears to compromise the independence, integrity, and impartiality of a judge….”

Rule 2.10: Rule 2.10(A) prohibits judges from making “public statement[s] that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court” (emphasis added). Remark 1 to the Rule notes, “This Rule’s restrictions on judicial speech are essential to the maintenance of the independence, integrity, and impartiality of the judiciary.” See usually, Republican Get together of Minnesota v. White. 536 U.S. 765 (2002) (discussing, and to some extent limiting, state restrictions on extra-judicial speech); Williams-Yulee v. Florida Bar. 575 U.S.; 135 S. Ct. 1656 (2015).

Rule 1.3: Lastly, Rule 1.3 supplies, “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.” Remark 4 to this Rule speaks to a state of affairs that’s analogous to this case:

Particular issues come up when judges write or contribute to publications of for-profit entities, whether or not associated or unrelated to the regulation. A choose shouldn’t allow anybody related to the publication of such supplies to take advantage of the choose’s workplace in a way that violates this Rule or different relevant regulation. In contracts for publication of a choose’s writing, the choose ought to retain enough management over the promoting to keep away from such exploitation.


[A.] Guidelines 3.1 and 1.2

Guidelines 3.1 and 1.2 don’t create a categorical bar to internet hosting a podcast about skilled sports activities. Making public statements about sports activities groups and occasions doesn’t, in and of itself, set off any of the 5 exclusionary provisions of Rule 3.1 or the extra normal exclusionary language in Rule 1.2. That is so as a result of:

– Making ready for and internet hosting the podcast shouldn’t be more likely to take a lot time that it’s going to intrude with the choose’s judicial duties. (Nevertheless, if the podcast have been to balloon right into a every day broadcast involving substantial preparation, this side of Rule 3.1 might then turn into implicated.)

– The matters which are more likely to be mentioned won’t result in the frequent disqualification of the choose. New Hampshire courts hear few instances involving skilled sports activities groups and, topic to the cautions under, it’s uncertain that the choose will say something that can require recusal.

– Additionally topic to the cautions under, internet hosting the podcast wouldn’t trigger an inexpensive particular person to doubt the choose’s independence, integrity, or impartiality. Following skilled sports activities is a healthful pastime loved by a big portion of society. Commenting on skilled sports activities as an avocation is equally healthful. Nothing concerning the subject, in and of itself, is more likely to increase a priority about impartiality or independence. (To make certain, it could be unseemly, and due to this fact detrimental to the looks of integrity, if the choose recognized himself/herself as a choose on the podcast or in any promotion for the podcast. Nevertheless, the choose indicated that he/she could be recognized solely by first identify.)

– The remaining prohibitions in Rule 3.1 should not relevant or related to the evaluation.

As famous above, there are some cautions that needs to be noticed:

First, the choose ought to acquire from the radio station, in writing, the power to veto (a) any promotion for the podcast or (b) any industrial sponsorship or (c) any commercial that both identifies the choose as a choose or in any other case calls the choose’s integrity, independence or impartiality into query. (Think about, for instance, the radio station desirous to run commercials on the podcast for a regulation agency that ceaselessly seems within the choose’s court docket.)

Second, though the choose could definitely prognosticate concerning the end result of future sporting occasions, the choose ought to chorus from giving recommendation on sports activities wagering. Cf: RSA Chapter 647:2 (playing offenses); see usually, In Re Advisory Letter No. 3-11, 215 N.J. 495, 515 (N.J. 2013) (sitting choose couldn’t carry out as a comic and actor beneath a stage identify when the substance of his performances created an look of impropriety).

Third, the choose have to be conscious that even a reasonably profitable podcast could result in the creation of a web-based neighborhood. Whereas the choose didn’t ask for steerage with respect to such a chance, it ought to nonetheless be famous as a matter of concern. Podcasts are sometimes saved on webpages that permit feedback and responses from the hosts. Moreover, podcast listeners typically work together with the podcast, its hosts and different listeners by way of social media. Thus, the choose will need to have written authority from the radio station to veto and delete any social media content material sponsored or inside the management of the radio station. A full dialogue of the potential pitfalls inherent in a choose’s use of social media is past the scope of this advisory opinion.

Fourth, as defined in additional element under, the choose ought to train nice care and discernment when making public statements on the podcast that relate to authorized points, reminiscent of participant/proprietor contractual disputes, proprietor/municipality disputes and participant entanglements with the legal regulation.

[B.] Rule 2.10

Rule 2.10 doesn’t prohibit a choose from making public statements about skilled sports activities. Nevertheless, media protection {of professional} sports activities typically consists of dialogue of authorized disputes. These embody not solely occasional legal prosecutions of gamers for off-field habits, but additionally contract disputes and negotiations between gamers and homeowners, and monetary negotiations between homeowners and municipalities. A choose’s public statements about these issues would transgress Rule 2.10 if the statements are “reasonably … expected to affect the outcome or impair the fairness of a matter pending or impending in any court.”

Clearly, the choose couldn’t touch upon any matter pending or impending in his/her court docket. Nevertheless, Rule 2.10’s prohibition applies extra broadly to issues which are pending or impending in any court docket, together with courts in distant states. As a result of podcasts can be found to anyone with an web connection wherever on the earth, a podcast host’s statements could also be heard, and certainly amplified, within the jurisdiction the place a matter is pending or impending. Due to this fact, the choose should chorus from making public statements that violate Rule 2.10 relating to issues which are or might turn into the topic of litigation. See usually In re Inquiry of Broadbelt. 683 A.second 543 (N.J. 1996) (holding that neither the New Jersey Code of Judicial Conduct nor the First Modification permitted a sitting choose to seem as visitor commentator on Court docket TV).

If the podcast accepts reside listener calls (i.e. calls made to the podcast whereas it’s being recorded or streamed), the choose have to be ready for feedback or questions that implicate Rule 2.10.

If the podcast has multiple host, the choose have to be cautious to keep away from a state of affairs by which his/her silence could be construed by listeners as adopting the general public statements of a co-host.

If the podcast provides rise to a social media presence, the choose should be sure that nothing attributable to the choose transgresses Rule 2.10.

[C.] Rule 1.3

The podcast does increase some considerations beneath Rule 1.3, however these considerations can possible be resolved. The podcast shall be hosted by a radio station. Though the radio station serves an essential public function, and could also be a fixture locally, it’s also a for-profit enterprise. Even when the choose shouldn’t be receiving any compensation for the podcast, the radio station could generate promoting revenue or could use the podcast to advertise itself.

Because the commentary to Rule 1.3 suggests, the choose’s participation within the podcast have to be conditioned on taking a number of steps to make sure that the radio station and its advertisers don’t presently, or sooner or later, exploit the choose’s place. Thus:

– The choose shouldn’t be recognized as a choose on the podcast, in any promotions for the podcast or in any industrial commercials on the podcast;

– The choose ought to acquire the radio station’s written settlement that it’s going to not permit commercials or promotions that establish him/her as a choose.

– As a result of some listeners may nonetheless study the choose’s identification, the choose must also acquire the radio station’s written settlement that it’s going to not permit commercials that the choose believes might exploit his/her judicial workplace.

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