This problem occurs in adams v gurley post (“California judge orders Reddit to delete criticism of scientist/consultant who publicly criticized UK Lucy Letby murder trial”), but I’ve seen confusion about this elsewhere, so I thought I’d briefly write Give it a try.
In federal appeals courts and many state appeals courts, many court opinions are marked “unpublished” or “not for publication.” This essentially means they are Not following precedentand will not be made public Among official journalists publishing binding precedents. These opinions are often “published” in a colloquial manner: they are made public on paid services such as Westlaw and Lexis, as well as on a number of free websites, often including court websites labeled “unpublished.” In fact, some are published in printed volumes (such as the Federal Appendix, which prints unpublished decisions of federal appeals).
have no law prohibits Write, quote or reproduce them online or elsewhere. They are merely non-binding precedents.
Now, some courts, such as the California Court of Appeals, have gone a step further and classified these opinions as uncitifiable, even citing them as persuasive precedent. For example, California Court Rules 8.1115(a) provides:
Opinions of the California Court of Appeals or the Appellate Division of the Superior Court of Justice may not be quoted or relied upon by a court or any other party to the proceeding unless they are certified for publication or ordered for publication.
There are exceptions; for example, “[a]Unpublished opinions may be cited or relied upon “when relevant to the legal principles of the case, res judicata, or collateral estoppel.” These principles must relate to the factual or legal conclusions advanced in the case. The criminal defendant is found guilty (res judicata), the plaintiff loses (also res judicata), the court discovers specific facts adverse to one party (collateral estoppel), and so on.
Therefore, generally speaking, future litigation involving one or both parties to a case may rely on specific factual or legal conclusions in an unpublished opinion. But in cases involving third parties, the legal reasoning in these opinions cannot be cited as precedent—either binding or persuasive. (I’m oversimplifying here.)
But this is limited to references by courts and litigants –IE, litigants in court. It is not intended to bind those outside the courtroom. have no law prohibits Write about a case, cite a case, reproduce a case, or discuss its reasoning or its factual or legal conclusions outside of California court proceedings.
In fact, courts in other jurisdictions (such as federal courts) sometimes rely on unpublished California cases as persuasive precedent or, more generally, as evidence of how California law operates. The California Rules of Court do not bind other courts and certainly do not bind persons outside the courts.
Likewise, persons citing such unpublished cases continue to be entitled to fair reporting privilege in any defamation action, invasion of privacy action, and other such action brought based on such reference. Carl. citizen. For example, Code section 47(d)(1) expressly provides that any “fair and true report of anything said in a… public journal,… judicial… proceeding, or… course” is privileged (as opposed to Exceptions that are not relevant here) where. A judge’s statement in an unpublished opinion remains what was said “in the course of” a “judicial… proceeding,” and therefore a reference to that statement is as protected as a reference to a published opinion.
Therefore, we are all free to quote from these “unpublished” opinions and indeed publish them in a popular way. We are all free to quote them in our publications, even if they are considered “uncitable”. These rules only control if and when they can be referenced in the court Serves as a binding precedent (or, in California and some other jurisdictions, even as a persuasive precedent).
