The Supremes hear arguments about the “citizens-only” provision of Virginia’s Freedom of Information Act

[Blogmeister’s note: The Supreme Court recently heard arguments in McBurney v. Young, a case involving a “citizens-only” limitation on state FOIA rights in Virginia. This was smack in the wheelhouse of Kevin Goldberg, a/k/a the Swami, who has long specialized in matters affecting access to information and the rights of the media. He attended the argument and provided this report.]

If you want to hear (and see!) what I had to say right after the McBurney argument, click here – that’s where you’ll find a video interview with me conducted by our friends at LexBlog only hours after the argument wrapped up. In the interview I hit the high points of the case, but for you, my faithful readers, I’ll flesh out a few more facts and the reasoning behind my prediction.

The case started when two individuals – neither of them a Virginia citizen – filed requests for information under the Virginia Freedom of Information Act.  Mark McBurney requested records relating to child support owed to him by his ex-wife; Roger Hurlbert sought property assessment records for business purposes.  Each request was denied because the Virginia FOIA is (with some limited exceptions) available only to Virginia citizens and neither McBurney nor Hurlbert is a Virginia citizen.

Those denials were upheld by the U.S. District Court for the Eastern District of Virginia, which held that Virginia’s law does not unreasonably discriminate against non-residents. The case was appealed to the U.S. Court of Appeals for the Fourth Circuit.

I got involved in the case at that point.

One of the limited exceptions to the “citizens-only” limit makes the Virginia FOIA available to print and broadcast journalists, but only if their newspapers, magazines or stations reach into Virginia. My client, the American Society of News Editors (ASNE) joined amicus briefs in the Fourth Circuit, and then in the Supremes (a brief supporting the grant of cert and a separate brief on the merits) in support of the McBurney/Hurlbert challenge

ASNE’s interest in the case is understandable. Virginia is one of only three states that have citizens-only FOI laws; a decision upholding Virginia’s law could lead the other 47 states to jump on the citizens-only bandwagon. And that in turn could result in unnecessary burden and expense for journalists, who would be forced to pursue state-based FOI requests by proxy, i.e., hiring others to make the requests on their behalf.

The issues before the Court were whether the “citizens only” provision violates one or another of two constitutional provisions, either (a) the Privileges and Immunities Clause (Article IV, Section 2, Clause 1) or (b) the “Dormant Commerce Clause”. The latter is a doctrine, derived from the Commerce Clause (Article I, Section 8, Clause 3), which provides that a state shall not unreasonably discriminate in favor of its own citizens and against non-citizens in matters of interstate commerce. 

To win, McBurney/Hurlbert will have to show: first, that access to records under a state FOI law is either: (1) a fundamental right (triggering the Privileges and Immunities Clause) or (2) an activity constituting or affecting interstate commerce (thus triggering the Dormant Commerce Clause); and second, that the law unreasonably discriminates against non-citizens.

As I joined fellow amateur-court watchers – and some professional reporters – outside the courtroom post-argument, at least a few thought the Court would rule in favor of the state.  I initially thought so as well. After all, the first 20-30 minutes didn’t go so well for the challengers. But by the end of the arguments, the tide had swung quickly and swung hard, so hard that I swore I saw Earle Duncan Getchell, Jr., Virginia’s Solicitor General, noticeably fidgeting.   So trying to pick up reliable signals from the back-and-forth between Justices and counsel wasn’t easy – it seldom is.

But I’m the Swami, and reading those tea leaves is what I do. So here goes.

I think the Court will, by a 6-3 vote, find the Virginia statute violates the Dormant Commerce Clause.   Chief Justice Roberts will be joined in the majority by Justices Kennedy, Breyer, Ginsburg, Sotomayor and Kagan. Justices Scalia, Thomas and Alito will be in the minority.

Let’s start with my predicted minority. 

As usual, Justice Thomas didn’t ask a single question; Justice Alito didn’t either. But, given their historical positions, I think it’s safe to say they’ll side with Virginia on this one. Justice Scalia, who did ask a number of questions (no surprise there), also seemed skeptical of the notion that Viriginia should be required to open up its records to anybody. At one point he mused that Virginia “do[es]n’t want outlanders mucking around in – in Virginia government. It’s perfectly okay for good old Virginians to do that, but they don’t want outlanders to do it. Why – why is that unreasonable?”

On the other end of the spectrum, Justices Ginsburg, Sotomayor and Kagan seemed clearly to favor Messrs. McBurney and Hurlbert. While – sadly – none seemed convinced that access to governmental-maintained information is itself a fundamental right, each did seem to believe that this information (and access to it) is an essential element of national commerce and that the state had no valid reason for hindering non-Virginians’ access to it.  (Sotomayor, in particular, launched into her questioning of Virginia’s Getchell before he even got a word in edgewise.) Each of these Justices appeared to have trouble understanding how the state could claim to be burdened by providing information to non-citizens, given that it really doesn’t cost the state any more to do so.

Chief Justice Roberts and Justices Kennedy and Breyer seemed a little more on the fence. But, in the end, I think they share Justice Sotomayor’s concerns. Both Roberts and Breyer, at different points, appeared frustrated by Getchell’s attempts to portray the Virginia FOI law as simply “political in nature” (which, according to Getchell, would mean the law couldn’t violate the Dormant Commerce Clause – an argument that Scalia seemed to buy completely). 

Roberts even dropped his usual poker face, wincing as Getchell tried to explain that the Virginia FOI law is not intended to, and does not, affect “commerce”. Breyer seemed to literally swat that argument away with the back of his hand. Kennedy pressed hard on the issue of whether the Court had the power to determine that the law does in fact affect commerce, contrary to Getchell’s insistence that there was no evidence to support such a conclusion.

So there you have it, kids. To repeat my bottom line – 6-3 in favor of McBurney/Hurlbert, in what would be a welcome affirmation of the importance of access to information. (The framers would have wanted it that way.)