I have blogged (here and here) about one potential pitfall of citing Wikipedia–advocates can change the content of a page in order to influence the litigation process, and perhaps, get a Judge to cite a more favorable opinion. It seems that Citizens Clean Elections Commission changed their web site after oral arguments in order to reflect positions taken during the litigation.

From the Chief’s opinion:

“Prior to oral argument in this case, the Citizens Clean Elections Commission’s Web site stated that “ ‘The Citizens Clean Elections Act was passed by the people of Arizona in 1998 to level the playing field when it comes to running for office.’ ” AFEC Brief 10, n. 3 (quoting http://www.azcleanelections.gov/about-us/get-involved.aspx); Tr. of OralArg. 48. The Web site now says that “The Citizens Clean Elections Actwas passed by the people of Arizona in 1998 to restore citizen participa-tion and confidence in our political system.”

This is the pitfall of relying on malleable sources like a web site.

Justice Kagan minimizes these concerns:

“Finally, the Court remarks in a footnote that the Clean Elections Commission’s website once stated that the ‘‘Act was passed by the people of Arizona . . . to level the playing field.’ Ante, at 24, n. 10. I can understand why the majority does not place much emphasis on this point.Some members of the majority have ridiculed the practice of relying on subsequent statements by legislators to demonstrate an earlier Congress’s intent in enacting a statute. See, e.g., Sullivan v. Finkelstein, 496 U. S. 617, 631–632 (1990) (SCALIA, J., concurring in part); United States v. Hayes, 555 U. S. 415, 434–435 (2009) (ROBERTS,
C. J., dissenting). Yet here the majority makes a much stranger claim: that a statement appearing on a government website in 2011 (written by who-knows-whom?) reveals what hundreds of thousands of Arizona’s voters sought to do in 1998 when they enacted the Clean Elections Act by referendum. Just to state that proposition is to know it is wrong.”

Perhaps Kagan is right here, but this change on the web site by “who-knows-whom” (I love her turns of phrase) illustrates the Wikipedia Citation Problem.

Awesome drawings courtesy of Art Lien.