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An Amicus Tailor-Made for Capitolbeat

March 29, 2011

One of my favorite aspects of serving as Capitolbeat’s attorney is the idea that this organization stands for something important, something good. I truly believe in statehouse reporting and fear for the downward trend in the number of statehouse reporters overall.  So I’m proud that I can represent this one-of-a-kind organization that has the potential to benefit its members in so many ways.

In my opinion, one of the most valuable aspects of Capitobeat membership is a service that I’m not really involved in as Legal Counsel but follow with great interest:  the member listserv.  I find it fascinating to see reporters from around the country comparing notes on how the states address various issues, from high impact policy matters involving the state budget to reporter-centric issues like access to the House or Senate floor to the somewhat bizarre topics like whether legislators are allowed to pack heat in the Chamber.

The case of McBurney v. Young would, if anything, make that listserv more valuable to Capitolbeat membership (and enhance the value of a Capitolbeat membership overall).  However, that did stop the Board from, rightfully, I think, voting to join an amicus brief  supporting a challenge to the constitutionality of a provision in the Virginia Freedom of Information Act which restricts the Acts use to “citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth”.

The negative impact on statehouse reporters cannot be clearer.  As our amicus brief, drafted by the Reporters Committee for Freedom of the Press and filed on behalf a total of 21 media companies and organization notes, there is a two-fold effect, on reporters’ ability to do comparative investigative reporting,  as well as the ability to report on “local” Virginia issues which may be of national concern.

The case is currently before the United States Court of Appeals for the Fourth Circuit, meaning there will be a widespread geographical impact.  Our brief’s main arguments include:

  • Journalists are surrogates for the public and must have access to government records of all types in all states. There are several issues of national importance which will require access to  state-agency records.  For that reason, the majority of states do not limit FOI access to only citizens of the state.  Examples range from the shootings at Virginia Tech in 2007 to the DC Snipers of 2002 to the recent economic meltdown.   Out of state reporters either needed Virginia records because there was a direct impact on their state or residents of their state or to compare how their state is or would handle a similar situation.
  • Noncitizens are effectively prevented from the “calling of journalism” – a common calling under the Privileges and Immunities Clause of the United States Constitution which precludes states from discriminating against noncitizens unless that discrimination bears a substantial relationship to the state’s objectives. Journalism plays a special role in the development of our national economy and the development and maintenance of a unified nation.  Virginia does not have any substantial reason, as required by law, for restricting this right.   The Supreme Court has found that a citizenship restriction without a substantial reason for existing constitutes unconstitutional discrimination.

Only a handful of states besides Virginia (Tennessee and Arkansas coming immediately to mind) have these laws.  But the most recent court challenge to one of these laws was successful:  a challenge to a similar provision in Delaware’s law in the Third Circuit about 6 years ago.  A positive result here might lead to other challenges in those last holdouts that retain this requirement; a negative one sets this up for Supreme Court review, with an adverse decision there likely to spawn legislative “fixes” across the states and, potentially, to the federal FOIA.  There is no doubt that every state and the federal government would be interested in potentially reducing backlogs by limiting the number of overall requests that might be filed.

So this is a case that must be won — even if Capitolbeat’s members are already filling in these gaps for each other on a regular basis.

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