The following is a guest post by Sayuri Umeda, a foreign law specialist who covers Japan and various other countries in East and Southeast Asia. Sayuri has previously written posts for In Custodia Legis on various topics, including Engagement under Japanese Law and Imperial House Rules, Is the Sound of Children Actually Noise?, How to Boost your Medal Count in the Olympics, South Korean-Style, Two Koreas Separated by Demilitarized Zone, and many more.
Under the Japanese Court Act, judges can be disciplined by a special judicial procedure if they “have violated their official duties … or degraded themselves.” (Court Act, Act No. 59 of 1947, amended by Act No. 67 of 2017, art. 49.) A tweet by a judge in violation of his/her duties or that degrades himself/herself could lead to discipline; however, there has been no guidance for judges’ tweets or other social media messaging services, so it is hard to determine what kind of tweets make a judge subject to disciplinary action. On October 17, 2018, the Japanese Supreme Court issued a reprimand to Judge Kiichi Okaguchi regarding his tweets.
Judge Okaguchi had received two warnings from the court regarding his tweets in the past. Although he did not mention his profession on Twitter, it was well known that he was a judge. According to a news article, the first warning by the Tokyo High Court in 2016 was issued for his three tweets between April 2014 and March 2016, because they “hurt the dignity of judges.” One tweet included photos of the upper body of a tied up male with comments that read “when I lived in Osaka, a queen of a SM bar came to a bar after work around 3 a.m. that I also frequented and was located next to her bar. I accepted such a good opportunity and experimented with being tied up (smiling).” His Twitter account is currently closed, but the tweet can still be seen on his blog. In another tweet, according to the article, he wrote “I will upload more and more photos of my naked body, my body with only white briefs, and so forth.” He is sometimes called “white brief judge” because he uploaded many photos in which he wore only white briefs or white briefs and a shirt. Some of his photos are still available online.
The Tokyo High Court issued the second warning in March 2018 for his tweet about a murdered girl in 2017. He was not involved in the case as a judge. Okaguchi wrote “a man who had a propensity to be sexually aroused by the sight of a woman being strangled. 17-year old woman was mercilessly murdered by such man” and posted a link to the judgment. According to news articles, the victim’s parents stated that they felt deep indignation towards the judge, because they felt that the judge did not consider the dignity of the victim at all; rather, he made light of the case. The victim’s parents demanded a disciplinary action for Okaguchi from the Tokyo High Court. In the warning, the High Court stated that his tweet was inappropriate for a judge and damaged the people’s trust in the courts.
In May 2018, Okaguchi tweeted about a case of an allegedly abandoned dog. He was not involved in the court proceedings and later admitted that he had not read the case. According to the request for disciplinary action by the Tokyo High Court to the Supreme Court, he linked to an article about the judgment and commented: “While (a person was) taking care of a dog abandoned at a park, the former owner came and said (to the current holder) ‘please return (the dog)’. What? You abandoned this dog, didn’t you? (You) abandoned (it) for 3 months… The result of the trial was …” The original owner who won the case complained to the High Court that the tweet hurt her feelings, according to the news article. According to another news article, the lawyer of the original owner told a reporter that Okaguchi’s tweet was based on wrong information. The Tokyo High Court’s report on this disciplinary case states that the High Court chief judge also pointed out that Okaguchi did not accurately describe the content of the dog case, because he did not read the judgment.
According to the report, it appears that the chief judge indirectly suggested to Okaguchi to stop tweeting. The reason for the suggestion was that the chief judge thought that Okaguchi would not be able to avoid problematic tweets in the future, even if he was careful, based on the fact that he had already gotten two warnings and said he would be careful in future. However, the tweet in question was uploaded only two months after the second warning was issued. Okaguchi said that he had no intention to quit tweeting.
The Tokyo High Court filed the request for disciplinary action in July 2018, and Okaguchi was given an opportunity to explain his side of the story in front of the Supreme Court Justices on September 11, 2018. As I mentioned, on October 17, 2018, the Japanese Supreme Court issued a reprimand to Judge Kiichi Okaguchi regarding his tweets.
How are Tweets Regarded in the U.S.?
I thought it would be interesting to compare the standards for judges’ tweets and social media use between Japan and the United States, Twitter’s “birth place.”
In the United States, Canon 4 of the Code of Conduct for United States Judges states
a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality…
This looks similar to the Japanese law. With regard to using Twitter, I found a “Letter Opinion of the Committee on Judicial Ethics” (CJE Opinion No. 2016-09) from the Massachusetts Supreme Judicial Court. In section 4, the Letter Opinion examined particular tweets of a judge. The following two are of interest for my comparison:
- Posts that detract from the dignity of the judiciary and the court system: Examples include excerpts from an examination in which a defendant used profanity when addressing the judge and another reporting that a defendant threw bottles of urine and feces at a judge following sentencing. A reasonable person may perceive these posts to be needlessly offensive, or as making light of behavior by litigants who may have mental health problems. Posts of this nature must be avoided.
- Posts that report on selected cases decided by other courts: To avoid conduct that a reasonable person may regard as demonstrating partiality, you must take certain precautions when reporting on cases. Tweets or retweets must be from official or neutral sources such as court websites or libraries. You must not retweet or link to case reports from persons or organizations with legal opinions that are clearly on one side of contested and highly-charged legal issues.
It appears from the Letter Opinion that the Massachusetts court system would agree with the decision of the Japanese Supreme Court to discipline the “white brief judge.”