In the digital age, the value of information to the economy is beyond dispute. But on Wednesday, it seemed uncertain whether the Supreme Court would agree that the free flow of that information should be protected under the Constitution’s commerce clause.

The court heard arguments in McBurney v. Young, a challenge to Virginia’s freedom of information law, under which Virginia citizens can obtain state documents – but non-Virginians cannot. Two out-of-staters who were denied information by Virginia – tax assessment records in one case, child custody information in another – challenged the law’s discriminatory treatment as a violation of the Constitution’s commerce clause as well as the privileges and immunities clause.

"In the modern economy, this is as much as part of the infrastructure as transportation is, like courthouses, like archives, like roads," said Deepak Gupta of Gupta Beck in D.C., the lawyer for those challenging the law. Under the so-called "dormant" commerce clause doctrine, he argued, states may not interfere with interstate commerce by explicitly favoring their residents over others in access to public information.

Gupta emphasized that for one of his clients, Californian Roger Hurlbert, the Virginia law has had a significant impact on his business of obtaining tax assessment records nationwide for his clients in complex real estate matters. Hulbert is part of an extensive and long-standing real estate data industry that goes back to colonial days, Gupta insisted.

But several justices seemed skeptical . "This is not a regulation of commerce," said Chief Justice John Roberts Jr., asserting that the law has an "incidental" impact at best.

Justice Antonin Scalia also said state freedom of information laws had little to do with commerce, instead empowering citizens of the states that have them to "attend to any malfeasance" in state government by making documents available to them. He suggested that Virginia residents were entitled to make documents preserved with their tax dollars accessible only to Virginians. "They don’t want outlanders mucking around in Virginia government," said Scalia, himself a Virginia resident.

Justice Anthony Kennedy, joined by Justice Stephen Breyer, repeatedly pressed Gupta to cite a precedent that would show that the Virginia law is "impermissible as a discrimination against interstate commerce." Gupta finally acknowledged, "There’s no case that’s entirely on all fours," to which Kennedy replied, "That’s why you’re here."

The challenge to the law under the privileges or immunities clause, which protects equal treatment of citizens by all states, seemed like an even tougher slog for Gupta. "It’s considerably opaque and there are very few cases on it," Breyer said of the clause. Under the few cases interpreting the clause, state actions can be struck down only if the "privilege" they interfere with is long-standing, fundamental, and tied to the goal of preserving the nation as a cohesive unit.

Even though freedom of information laws are relatively new, argued Gupta, "they sit on top of well-established common law rights."

But Roberts said, "It has to be something that is essential to hold the country together as a national unit. It seems to me a bit of a stretch to say somebody gathering records… under FOIA fits that description."

Freedom of information laws were first enacted "during my adult lifetime" the 76-year-old Scalia also noted, making the point that they are of recent vintage and therefore not fundamental. "I remembered when they were enacted" in the 1960s and early 1970s.

A few minutes later, Justice Elena Kagan staked her claim as the court’s youngest justice when she said, "I want to put myself on record as not remembering when these statutes were passed." Kagan is 52.

Justices were also tough on Virginia Solicitor General E. Duncan Getchell Jr., pressing him on the commercial impact of the exclusionary aspect of the freedom of information law. Nothing in the record answers that question one way or the other, Getchell said, adding, "I don’t think anybody was thinking about businesses of any sort" when the law was passed. He said he did not have to defend the law under either clause of the Constitution at issue, because it did not involve commerce and did not implicate a fundamental right.

Breyer objected to Getchell’s seemingly stubborn responses. "In today’s world," Breyer said, "it’s important that we get statistics [about real estate] because our economy is national." Breyer added, "So, therefore, there is a national interest in the flow of this information. And that means you have to have a better than [nothing] kind of rationale."

Tony Mauro can be contacted at