Should judges only speak through their judgments? Does silence truly enhance the public’s perception of the judiciary?
In “Revisiting the Limits on Judicial Expression in the Digital Age: Striving Towards Proportionally in the Cyberintimidation Context” Karen Eltis and Yigal Mersel explore these issues. Despite the various arguments against expression, they argue that the digital age demands that we question the belief that judicial silence is always best.
They write that “judges have a duty to speak out to protect judicial institutions as the guardians of democracy… to safeguard the rule of law … Recommending unconditional silence, erroneously assumes [ ] that there are other actors standing at the ready to protect judge’s good name in the digital realm. That is to say attorneys, academe, public figures and officeholders, and even journalists are presumed to rise to the judiciary’s defence when it is being undermined.” This assumption may not always be true.
Furthermore, relying exclusively on case law to build public trust is problematic. Case law is lengthy, detailed, and difficult to understand. And in fact, most people know the courts and their judgments through the media, including traditional media sources and social media. Relying on the old age custom of ubiquitous silence is a disservice.
Using common sense, discretion, and temperance judges should be allowed to speak out publicly.
(Views are my own and do not reflect the views of any organization. Originally posted on slaw.ca.)