A recent posting about citations to Wikipedia in the federal Circuit Courts of Appeals leads to the question of what the attitude is toward Wikipedia in the Supreme Court of New Jersey, the Appellate Division, and the Third Circuit Court of Appeals. The answer seems to be that the courts are not necessarily enthusiastic about Wikipedia.
Apparently, no Supreme Court of New Jersey case has relied on Wikipedia. Only one opinion of the Appellate Division, Palisades Collection, LLC v. Graubard, 2009 WL 1025176 (App. Div. April 17, 2009), seems to have addressed Wikipedia. The per curiam decision there rejected Wikipedia as a basis for judicial notice, concluding that it was not “a source[ ] whose accuracy cannot reasonably be questioned,” as required for judicial notice under Evidence Rule 201(b)(3). The panel based this conclusion on Wikipedia’s own self-assessment:
Wikipedia bills itself as ‘the online encyclopedia that anyone can edit.’ Anyone with an internet connection can create a Wikipedia account and change any entry in Wikipedia. In fact, Wikipedia warns readers that ‘[t]he content of any given article may recently have been changed, vandalized or altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields.’ Thus, it is entirely possible for a party in litigation to alter a Wikipedia article, print the article, and thereafter offer it in court in support of any given position. Such a malleable source of information is inherently unreliable, and clearly not one ‘whose accuracy cannot be reasonably questioned.'”
Several Third Circuit cases have cited Wikipedia. But those citations have involved only uncontroversial things for which an earlier generation of judges or law clerks might have used a dictionary or other source. Layshock ex rel. Layshock v. Hermitage School District, 650 F.3d 205, 218 n.19 (3d Cir. 2011) (en banc) (citing Wikipedia definition of “blog”); Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transportation Authority (“SEPTA”), 635 F.3d 87, 90 (3d Cir. 2011) (citing Wikipedia as to the number of stations in the SEPTA system); Travelers Cas. & Surety Co. v. Insurance Co. of North America, 609 F.3d 143, 148 n.1 (3d Cir. 2010) (citing Wikipedia for the idea that “Acme,” used by the court as a pseudonym for an insured whose identity was subject to a protective order, stands for “A Company that Makes Everything”).
In Sukarno v. Attorney General of the United States, 349 Fed. Appx. 797 (3d Cir. Oct. 22, 2009), the plaintiff challenged the government’s reliance on an article from an unspecified “electronic encyclopedia” as an unreliable source. The panel did not rule on that issue, holding that the plaintiff had waived it by not raising it before the administrative agency from which the appeal was taken. Moreover, the plaintiff too had relied on the article before the agency. Thus, for now, and at least for the most basic things, Wikipedia seems to be accepted by the Third Circuit.
The Appellate Division’s critique of Wikipedia in Palisades Collection, however, should give pause to anyone who is thinking of relying on Wikipedia before a court. Unless the item for which Wikipedia might be cited is uncontroversial, like the definition of “blog,” or mere window dressing, like the true meaning of “Acme,” the better course would be to find and cite a more conventional and immutable source.