As lawyers, whether in the context of a motion submitted to the court or a letter sent to opposing counsel, we place a premium on persuasive writing. Our writing is most persuasive when we are able to cite to legal opinions or other authorities to support well-crafted arguments. Earlier generations of lawyers were constrained in this respect by the availability of sources. By contrast, the advent of online legal research services ushered in a broader set of resources for lawyers to draw on from unpublished decisions, secondary sources, obscure law review articles and Wikipedia. While perhaps not as compelling as an analogous opinion authored by the same Judge that your motion is pending before, internet sources are bolstering legal writing drafted by judges and lawyers alike.
While a hierarchy of citations from precedential to persuasive already exists, courts are now facing a new dilemma: are some internet sources simply improper for legal citation? As information becomes more readily available, the legal community must question whether it holds true that some support is always – or even sometimes – better than no support. Moreover, are bright line rules regarding internet citations tenable? Where a court accepts – or rejects – a particular source as providing useful support, lawyers practicing in that jurisdiction ought to know. On this topic, we are highlighting a decision from the Supreme Court of Texas that addressed the value of relying on Wikipedia in D Mag. Partners, L.P. v Rosenthal, — S.W.3d —-, 2017 WL 1041234, at *4-5, 60 Tex. Sup. Ct. J. 617 (Tex Mar. 17, 2017).
In D Mag. Partners, L.P. v Rosenthal, the subject of a magazine article sued the magazine for defamation and for violations of the Texas Deceptive Trade Practices-Consumer Protection Act and Identity Theft Enforcement and Protection Act after the magazine had published an article accusing her of welfare fraud and describing her throughout the article as a “welfare queen.” Id. To determine whether a publication is capable of a defamatory meaning, the court examines its “gist.” Id. at *4. Critically, the court of appeals began its “gist analysis” with a discussion of the article’s title – “the park cities welfare queen” – and cited to Wikipedia as its primary source for a definition of the term “welfare queen.” Id. The magazine and several amici challenged the court’s reliance on Wikipedia.
Wikipedia describes itself as an “online open-content collaborative encyclopedia.” Id.; see also Wikipedia: General Disclaimer, https://en.wikipedia.org/wiki/Wikipedia:General_disclaimer (last visited Sept. 5, 2017). The open-content collaboration means that anyone can, at any time, make changes to Wikipedia reference pages. Id. This impermanence of content has raised concerns about the accuracy of Wikipedia’s content and overall reliability in the context of judicial opinions or motions submitted for judicial review.
According to D Mag Partners, L.P., judicial opinions began invoking Wikipedia references for support over a decade ago, in 2004. Id. (citing Jodi L. Wilson, Proceed with Extreme Caution: Citation to Wikipedia in Light of Contributor Demographics and Content Policies, 16 VAND. J. ENT. & TECH. L. 857, 868 (2014)). However, such citations were scarce and often related to nondispositive matters or were included in string citations. In Bing Shun Li v. Holder, the Fifth Circuit cautioned against reliance on Wikipedia, agreeing that courts have found it to be an “unreliable source of information” and warning “against any improper reliance on it or similarly unreliable internet sources in the future.” 400 Fed. App’x. 854, 857 (5th Cir. 2010). A 2015 article examining the alleged bias and accuracy of Wikipedia entries found that the results were mixed. D Mag. Partners, L.P., 2017 WL 1041234, at *5 (citing Michael Blanding, Wikipedia or Encyclopedia Britannica: Which Has More Bias? FORBES (Jan. 20, 2015)).
Ultimately, the Texas Supreme Court in D Mag Partners, L.P. held that the court of appeals improperly utilized Wikipedia as a primary source “to ascribe a specific, narrow definition to a single term that the court found significantly influenced the article’s gist.” 2017 WL 1041234, at *6 (emphasis added). Indeed, the main problem with the court of appeals’ decision was that it had relied on the Wikipedia definition “as the lynchpin of its analysis on a critical issue” despite the existence of other sources that offered a broader common meaning. Id. Importantly, the Supreme Court’s analysis highlights that citation to Wikipedia may be permitted as “a starting point for research purposes” or when used sparingly for minor points in judicial opinions. Id. at *5.
Following the court’s guidance, lawyers should be wary to rely completely on Wikipedia to support arguments on dispositive matters. That said, more junior attorneys seeking a compendium of sources on a relevant issue may find Wikipedia an extremely beneficial – and cost effective – starting point.