The reason for publishing this otherwise fact-intensive case is apparently its decision that the single-publication rule applies to internet posts. That’s the problem.

It seems that Sarah, or Sarah and husband David, posted defamatory statements about the parenting habits of Mindi, David’s ex., and MIndy’s new man, Jeremy. The internet seems to be replacing television – even “reality tv” – as the go-to source for sordid melodrama. Anyway, Mindi and Jeremy sued Sarah and David, who alleged the statute of limitations, their posts having been made over one year before. The trial court didn’t buy it, the case went to trial, and the plaintiffs won. Defendants appealed, again arguing the statute.

The Court of Appeals affirms.

One of the defendants’ arguments was the discovery rule, which the court disposes of briefly on factual grounds.

The other argument was that the defamatory information had been republished within one year. The doctrine of republication is an exception to the single-publication rule – the statutory rule (12-651) that defamation in a book, movie, etc. gives rise to a single cause of action no matter when or how many copies/showings/etc. there are. But a new version or edition or issuance — i.e., a “republication” – is a new defamation that starts the clock again.

The court eventually finds, for factual reasons, that that’s what happened here: the defendants’ rehashing and embellishment of their allegations in the posts’ comments threads amounted to republication.

First, though, the court analyzes the question of whether the single-publication rule applies to internet posts. It quotes the statute, discusses the history and reasons for the rule, and cites some federal cases. “We agree with this reasoning from these other jurisdictions and conclude the single publication rule applies to Internet publications.”

See the problem? The defendants argued an exception to the rule – in other words, they apparently agreed that the rule would otherwise apply to their post. The plaintiffs surely didn’t dispute that. There seems to have been no reason for the parties to brief that issue; the opinion does not mention that they did. Did the court really adopt as the main issue for legal analysis one that hadn’t been briefed or argued? Did it really present, in the guise of the resolution of a legal dispute, what was in truth just some judge’s or law clerk’s or, perhaps, staff attorney’s idea of what the law ought to be? Did it really reach out for a trendy issue that wasn’t properly there?

We don’t know. We didn’t see the briefs. Perhaps there truly was some reason, that doesn’t appear in the opinion, not to do a “we assume without deciding.” Or perhaps the court doesn’t quite consider its conclusion a “holding” (though there is nothing here to warn mere lawyers of that, and in that case there wasn’t much reason to publish this). We would be less suspicious if this were the first time (e.g., here, though if you look through these blogs you’ll find other examples). Its not that the court’s analysis is wrong – off the top of our heads we’ve no reason to think so. But if judges aren’t constrained by the actual issues, if a case can hold whatever it inspires them to write about, then our theory of appeals is just a scheme to fool the rubes.

(link to opinion)