Facebook Friendship Alone Can’t Disqualify Florida Judge

By Jennifer Bennett

A Florida trial judge’s Facebook friendship with opposing counsel isn’t enough by itself to disqualify the judge from hearing a case.

Florida-based Law Offices of Herssein and Herssein P.A. can’t get a trial judge disqualified solely because the judge is Facebook “friends” with a potential party’s lawyer, the Florida Supreme Court said Nov. 15 in a divided opinion. It’s an issue that has divided the Florida appellate courts.

Disqualification is appropriate where Florida litigants fear they won’t get a fair trial because of judicial prejudice, the court said. Motions are legally sufficient when the facts alleged, if true, would make a “reasonably prudent” person afraid their trial wouldn’t be fair or impartial, the court said.

Friendship “exists on a broad spectrum” even in the offline world, the opinion said. A friendship’s “mere existence” doesn’t “reasonably convey” a close relationship, and isn’t a legally sufficient reason to disqualify a judge.

Facebook friendships—created when two of the social media platform’s over 2 billion users send and accept friend requests—are even less probative of bias, according to the opinion. “Facebook ‘friendship’ varies in degree from greatest intimacy to ‘virtual stranger,’” the court said. Many Facebook users have thousands of friends and might not know or even remember adding them.

Because a Facebook friendship doesn’t “signal the existence of a traditional ‘friendship,’ it certainly cannot signal the existence of a close or intimate relationship,” the court said. Facebook friendships, on their own, provide “no significant information” about any actual relationship between the parties.

Not allowing parties to disqualify judges on the basis of Facebook friendships alone is the standard in a majority of states, with at least eight finding this doesn’t create an appearance of impropriety, the court said. However, at least four states—California, Connecticut, Massachusetts, and Oklahoma—do allow disqualification solely because of Facebook friendships.

Three of the Florida Supreme Court’s seven members dissented, saying that judicial social media use is “fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter.”

The case is Law Offices of Herssein and Herssein P.A. v. U.S. Auto. Ass’n, Fla., No. SC17-1848, 11/15/18.