The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In D Magazine Partners v. Rosenthal, someone described as a "welfare queen" in a magazine article sued the magazine for libel. One question was what the phrase "welfare queen" meant, and the Texas Court of Appeals resolved this by referring to, among other sources, Wikipedia. In Friday's Texas Supreme Court decision in the case, Justice Debra H. Lehrmann's majority opinion considered whether this reliance was proper:
Citing Wikipedia, along with additional sources cited in the Wikipedia article, the court [of appeals] stated:
The term "Welfare Queen" has two meanings; it can mean either (1) a woman who has defrauded the welfare system by using false information to obtain benefits to which she is not legally entitled, and it can also mean (2) a woman who has exploited the welfare system by having children out of wedlock and avoiding marital relationships for the purpose of continuing to qualify legally for government benefits.
The court explained that the second definition does not apply to Rosenthal and that the article's title therefore necessarily references a woman "who is committing fraud to receive government-assistance benefits illegally." …
Wikipedia is a self-described "online open-content collaborative encyclopedia." This means that, except in certain cases to prevent disruption or vandalism, anyone can write and make changes to Wikipedia pages. Volunteer editors can submit content as registered members or anonymously. Each time an editor modifies content, the editor's identity or IP address and a summary of the modification, including a time stamp, become available on the article's "history" tab. Wikipedia is one of the largest reference websites in the world, with over "70,000 active contributors working on more than 41,000,000 articles in 294 languages."
References to Wikipedia in judicial opinions began in 2004 and have increased each year, although such references are still included in only a small percentage of opinions. These cites often relate to nondispositive matters or are included in string citations. But, some courts "have taken judicial notice of Wikipedia content, based their reasoning on Wikipedia entries, and decided dispositive motions on the basis of Wikipedia content." While there has been extensive research on Wikipedia's accuracy, "the results are mixed—some studies show it is just as good as the experts, [while] others show Wikipedia is not accurate at all."
Any court reliance on Wikipedia may understandably raise concerns because of "the impermanence of Wikipedia content, which can be edited by anyone at any time, and the dubious quality of the information found on Wikipedia." Cass Sunstein, legal scholar and professor at Harvard Law School, also warns that judges' use of Wikipedia "might introduce opportunistic editing." The Fifth Circuit has similarly warned against using Wikipedia in judicial opinions, agreeing "with those courts that have found Wikipedia to be an unreliable source of information" and advising "against any improper reliance on it or similarly unreliable internet sources in the future."
For others in the legal community, however, Wikipedia is a valuable resource. Judge Richard Posner has said that "Wikipedia is a terrific resource … because it [is] so convenient, it often has been updated recently and is very accurate." However, Judge Posner also noted that it "wouldn't be right to use it in a critical issue." Other scholars agree that Wikipedia is most appropriate for "soft facts," when courts want to provide context to help make their opinions more readable. Moreover, because Wikipedia is constantly updated, some argue that it can be "a good source for definitions of new slang terms, for popular culture references, and for jargon and lingo including computer and technology terms." They also argue that open-source tools like Wikipedia may be useful when courts are trying to determine public perception or community norms. This usefulness is lessened, however, by the recognition that Wikipedia contributors do not necessarily represent a cross-section of society, as research has shown that they are overwhelmingly male, under forty years old, and living outside of the United States.
Given the arguments both for and against reliance on Wikipedia, as well as the variety of ways in which the source may be utilized, a bright-line rule is untenable. Of the many concerns expressed about Wikipedia use, lack of reliability is paramount and may often preclude its use as a source of authority in opinions. At the least, we find it unlikely Wikipedia could suffice as the sole source of authority on an issue of any significance to a case. That said, Wikipedia can often be useful as a starting point for research purposes. … "Selectively using Wikipedia for … minor points in an opinion is an economical use of judges' and law clerks' time." … In this case, for example, the cited Wikipedia page itself cited past newspaper and magazine articles that had used the term "welfare queen" in various contexts and could help shed light on how a reasonable person could construe the term.
However, the court of appeals utilized Wikipedia as its primary source to ascribe a specific, narrow definition to a single term that the court found significantly influenced the article's gist. Essentially, the court used the Wikipedia definition as the lynchpin of its analysis on a critical issue. As a result, the court narrowly read the term "welfare queen" to necessarily implicate fraudulent or illegal conduct, while other sources connote a broader common meaning. See, e.g., Oxford Living Dictionaries, https://en.oxforddictionaries.com/definition/welfare_queen (broadly defining "welfare queen" as a "woman perceived to be living in luxury on benefits obtained by exploiting or defrauding the welfare system"); YourDictionary, http://www.yourdictionary.com/welfare-queen (broadly defining "welfare queen" as a "woman collecting welfare, seen as doing so out of laziness, rather than genuine need"). In addition, and independent of the Wikipedia concerns, the court of appeals' overwhelming emphasis on a single term in determining the article's gist departed from our jurisprudential mandate to evaluate the publication as a whole rather than focus on individual statements.
Justice Eva M. Guzman concurred, in an opinion that began with this image, and a footnote reading "Screenshot of unsaved edits to Welfare Queen, Wikipedia, https://en.wikipedia.org/wiki/W elfare_queen."
The opinion went on:
I write … to emphasize the perils of relying on Wikipedia: The Free Encyclopedia as an authoritative source for any controverted, decisive, or critical issue. As a general proposition, I believe Wikipedia is not a sufficiently reliable source of information to serve as the leading authority on a case-determinative matter, particularly when the court's reliance is sua sponte without notice to the parties, as it was in this case.
Wikipedia has many strengths and benefits, but reliance on unverified, crowd-generated information to support judicial rulings is unwise. Mass-edited collaborative resources, like Wikipedia, are malleable by design, raising serious concerns about the accuracy and completeness of the information, the expertise and credentials of the contributors, and the potential for manipulation and bias. In an age when news about "fake news" has become commonplace, long-standing concerns about the validity of information obtained from "consensus websites" like Wikipedia are not merely the antiquated musings of luddites.
To the contrary, as current events punctuate with clarity, courts must remain vigilant in guarding against undue reliance on sources of dubious reliability. A collaborative encyclopedia that may be anonymously and continuously edited undoubtedly fits the bill.
Legal commentators may debate whether and to what extent courts could properly rely on online sources like Wikipedia, but the most damning indictment of Wikipedia's authoritative force comes directly from Wikipedia:
"WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY"
"Please be advised that nothing found here has necessarily been reviewed by people with the expertise required to provide you with complete, accurate or reliable information."
"Wikipedia cannot guarantee the validity of the information found here."
"Wikipedia is not uniformly peer reviewed."
"[A]ll information read here is without any implied warranty of fitness for any purpose or use whatsoever."
"Even articles that have been vetted by informal peer review or featured article processes may later have been edited inappropriately, just before you view them."
Indeed, "Wikipedia's radical openness means that any given article may be, at any given moment, in a bad state: for example, it could be in the middle of a large edit or it could have been recently vandalized." Even if expeditiously remediated, transient errors are not always obvious to the casual reader. As Wikipedia states more pointedly, "Wikipedia is a wiki, which means that anyone in the world can edit an article, deleting accurate information or adding false information, which the reader may not recognize. Thus, you probably shouldn't be citing Wikipedia."
Apart from these candid self-assessments, which no doubt apply with equal force to other online sources and encyclopedias, a more pernicious evil lurks—"opportunistic editing." Because "[a]nyone with Internet access can write and make changes to Wikipedia articles" and "can contribute anonymously, [or] under a pseudonym," reliance on Wikipedia as an authoritative source for judicial decision-making incentivizes self-interested manipulation. Case in point: a Utah court of appeals recently described how the Wikipedia definition of "jet ski" provided "stronger support" for one of the parties in a subsequent appeal than it had when considered by the court in the parties' previous appeal. The court observed the difficulty of discerning whether the change was instigated by the court's prior opinion, perhaps "at the instance of someone with a stake in the debate."
Still, some have argued Wikipedia is "a good source for definitions of new slang terms, for popular culture references, and for jargon and lingo including computer and technology terms." Perhaps, but not necessarily. While Wikipedia's "openly editable" model may be well suited to capturing nuances and subtle shifts in linguistic meaning, there is no assurance that any particular definition actually represents the commonly understood meaning of a term that may be central to a legal inquiry.
In truth, Wikipedia's own policies disclaim the notion: "Wikipedia is not a dictionary, phrasebook, or a slang, jargon or usage guide." Whatever merit there may be to crowdsourcing the English language, Wikipedia simply lacks the necessary safeguards to prevent abuse and assure the level of certainty and validity typically required to sustain a judgment in a legal proceeding.
Take, for example, the Wikipedia entry for "welfare queen," which was first created in November 2006 by the user Chalyres. Since the entry was first drafted, 239 edits have been made by 146 users. But there is no reliable way to determine whether these edits (1) deleted or added accurate information, (2) deleted or added false or biased information, (3) were made by individuals with expertise on the term's usage, or (4) were made by individuals actually representative of the community.
As a court, one of our "chief functions" is "to act as an animated and authoritative dictionary." In that vein, we are routinely called upon to determine the common meaning of words and phrases in contracts, statutes, and other legal documents. Though we often consult dictionaries in discharging our duty, rarely, if ever, is one source alone sufficient to fulfill the task. To that end, I acknowledge that Wikipedia may be useful as a "starting point for serious research," but it must never be considered "an endpoint," at least in judicial proceedings.
Wikipedia's valuable role in today's technological society cannot be denied. Our society benefits from the fast, free, and easily-accessible information it provides. A wealth of information is now available at the touch of a few key strokes, and a community of Wikipedia editors serves to increase the accuracy and truth of that information, promoting the public good through those efforts. However, in my view, Wikipedia properly serves the judiciary only as a compendium—a source for sources—and not as authority for any disputed, dispositive, or legally consequential matter.