We Ask The Supreme Court To Clarify If It's Legal For Virginia To Bar Techdirt From Filing Freedom Of Information Requests

from the restrictions-on-the-press dept

Like many media properties, we've filed Freedom of Information Act requests to seek out information at both the federal and state levels. The various federal and state freedom of information regulations are important tools for the public, and also for those doing journalism to seek out and report on important information that should be public. Unfortunately, some states like to limit these laws, and Virginia in particular has made its law such that it limits filings to only Virginia residents... or to a very small number of media companies that meet its "exemption" rules. Basically, it will allow freedom of information requests from "traditional newspapers, print magazines or FCC-licensed broadcast media." So if you're an online-only media property and not a Virginia resident, you're out of luck.

A small number of other states also have "citizens only" clauses in their FOI laws, though Delaware's was recently struck down as unconstitutional. However, Virginia is the only state that allows a partial exemption for some media players, but not for others. Even so, a court recently upheld Virginia's law as constitutional. This has created both a circuit split (with different courts in different circuits finding very differently on the general issue of "citizens only" clauses), and an unfair burden on anyone doing online-only reporting and thus not qualifying for the specific exemption in Virginia's law.

As the Supreme Court has been asked to hear an appeal of that case, we've signed onto an amicus brief along with the American Society of News Editors, the Center for Investigative Reporting, Ars Technica, Daily Kos, Grist, Matthew Lee, Muckrock, Automattic and Tumblr, arguing that this is an issue where existing rulings and the arbitrariness of the exemptions in the law have created massive uncertainty for anyone doing investigative reporting. So our filing is asking the Supreme Court to take the case and clarify whether or not Virginia's restrictive law is constitutional. Hopefully, the Court recognizes the problems of the law and makes clear that, in this age when anyone can do reporting, limiting such rules to only citizens or an arbitrary definition of professional media is too restrictive.

Filed Under: citizens, freedom of information, journalism, virginia

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  1. identicon
    Anonymous Coward, 29 Aug 2012 @ 10:26pm


    Nobody's even commented on whether they actually think it's constitutional or not? (That's not the same as whether the law is a good idea.)

    The argument that the residents-only law is unconstitutional is based on the Privledges and Immunities clause, which reads:

    "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

    I'm not sure that this clause can be used to declare a FOIA law unconstitutional. If you live in one state and want to apply for a fishing license in another state, it costs more. Same with college tuition. As the Supreme Court has said:

    "Only with respect to those 'privileges' and 'immunities' bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally."

    Does this fall into that category? Maybe, and maybe not. The Supreme Court at one point explicitly avoided deciding what is covered: "We do not decide the full range of activities that are sufficiently basic to the livelihood of the Nation that the States may not interfere with a nonresident's participation therein without similarly interfering with a resident's participation." http://supreme.justia.com/cases/federal/us/436/371/case.html

    And from a really old case, we have this:

    "The inquiry is what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole."

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