A printed copy of this statement was mailed to all judicial candidates.
The committee is an independent, nonpartisan group of lawyers, retired judges and other citizens. It receives complaints and issues statements when warranted. Its concern about social media was prompted by a complaint from state Court of Appeals Judge Susanne Cetrulo against her opponent in the Nov. 8 election, Robert Winter. Both live in Edgewood, in Kenton County.
Cetrulo complained to the committee about a comment on Winter’s personal page, below a reposting from his campaign page about a campaign event. The commenter wrote, “This ruling by KY Appeals Court Judge Susanne Cetrulo cements her pro-abortion standing,” and linked to a decision made by a three-judge panel of the court, of which Cetrulo was a member. She said it was “a post that is completely false” and “I have had no such case and this is very hurtful to me personally and as a candidate.” The original post is dated July 22 and her complaint was received July 29.
The decision cited by the commenter upheld an Anderson Family Court order supporting a parent’s desire to have his two children vaccinated over the objections of the other parent holding joint custody. The objecting parent cited her religious objection to vaccination on grounds that aborted fetal cells were used in the design and manufacture of the vaccines, while the other parent “believes the use of aborted fetal cells is so far removed from the process of developing vaccines that his concerns no longer exist” and wanted to follow the pediatrician’s advice and CDC guidelines that the children be vaccinated. The family court judge said the children’s health and welfare outweighed the religious belief of one parent. It made no findings of fact on the question of fetal cells, and the Court of Appeals panel said unanimously, “We cannot say the family court's factual findings lacked the support of substantial evidence, and we cannot conclude that it made any legal error in reaching its decision.”
Regarding the abortion issue, Dr. Aleena Banerji, a member of the American College of Allergy, Asthma & Immunology Covid-19 Vaccine Task Force, told Healthline that fetal cells were obtained from elective abortions in the 1970s and 1980s and have been grown as cell lines in laboratories for 30 to 40 years to be used in vaccine research because viruses need human cells in which to replicate. Banerji said neither Pfizer nor Moderna used fetal cell lines in development or production of its coronavirus vaccines, so there are no fetal cells in the vaccine, but the companies did use the cells to make sure the vaccine worked before beginning clinical trials in humans. She said the Johnson & Johnson one-dose vaccine used a fetal cell line in development and manufacturing.
The Kentucky Judicial Campaign Conduct Committee believes that the characterization of the Court of Appeals ruling as a “pro-abortion decision” stretches the truth to the breaking point, and that the comment is at least misleading if not false.
“A candidate for public office may not have a legal duty to monitor what others put on his or her personal or campaign pages; however, he or she certainly has an ethical duty to ensure that those pages are not used to propagate false or misleading information. Failure to do so renders the candidate an abettor in the propagation of such information,” said retired Court of Appeals Judge Anthony Wilhoit, chairman of the committee.
We advised Mr. Winter of our opinion and gave him the opportunity to reply. He argued that he does not have the right to control comments on his Facebook pages, but he in fact does have that right, and the ability to do so; the cases he cited dealt with social-media accounts of public officials, not those of candidates. He also said that the state Canons of Judicial Conduct, which apply to judicial candidates, “prevent me from discussing cases that could be brought before me.” This case has already been disposed of by the Court of Appeals, but Winter said that “similar facts or issues” may come before the court and it might “be required to review past cases, like this one, in making a decision.” He said any action by him regarding the comment would amount to making his own comment on an issue that might come before the court. We do not see it that way. We believe that removing the comment would simply be a tacit acknowledgement that its truth or falsity are in dispute, and another option would be to add a comment expressly saying so.
Winter concluded, “Comments like this are made every day. There are many judicial decisions rendered on which reasonable minds may differ. Censoring statements we do not agree with is not the answer.”
That comment illustrates the difficulties that social media pose for campaigns and voters. In the case of Facebook, users can set their pages to allow comments only from friends, or friends of friends, or those approved by the owner of the page – or by anyone, as Winter’s pages allow. If a comment remains on the page, or is not disputed, the owner of the page may be endorsing it by implication, or readers of it may make that inference.
The Kentucky Canons of Judicial Conduct say that “a judge or judicial candidate shall not . . . knowingly, or with reckless disregard for the truth, make any false statement of material fact.” That is in Paragraph A of Canon 4.1. Paragraph B says, “A judge or judicial candidate shall take reasonable measures to ensure that other persons do not undertake, on behalf of the judge or judicial candidate, any activities prohibited under paragraph A.” In its comment on the canon, the Kentucky Supreme Court says, “When an independent third party has made unwarranted attacks on a candidate's opponent, the candidate may disavow the attacks, and request the third party to cease and desist.”
We believe “reasonable measures” for judicial candidates include monitoring of their social media pages for material that is false or misleading, and removal of such material. Comments on social-media posts may be a matter of opinion, but leaving them on a page can be seen as an implicit endorsement of that opinion. We believe judicial candidates should be aware of these risks, and that is why we are issuing this statement.
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