WASHINGTON — The Supreme Court heard arguments on Wednesday about whether Virginia may permit only its own citizens to make requests under the state’s freedom of information act.
The justices appeared to differ about whether such a restriction was sensible, but they seemed largely united that it did not run afoul of the Constitution.
The case, McBurney v. Young, No. 12-17, was brought by Roger Hurlbert, a California man who collects property records for commercial clients, and Mark McBurney, a Rhode Island man who once lived in Virginia and who sought information concerning child support payments. They sued when Virginia refused to comply with their requests under the law.
Virginia appears to be one of only three states that discriminate against requests for information from noncitizens. Its law contains an exception for representatives of newspapers and magazines with circulation in Virginia and of radio and television stations that broadcast there. It does not address Internet publications.
Mr. Hurlbert, Justice Stephen G. Breyer said, “has a very reasonable request, in my view.”
“But the question,” he went on, “isn’t the reasonableness of his request. The question is, you know, whether they can do it.”
Justice Antonin Scalia said the law was perfectly reasonable, but that this did not matter in the constitutional analysis.
“Is it the law that the state of Virginia cannot do anything that’s pointless?” he asked. “Only the federal government can do stuff that’s pointless?”
Chief Justice John G. Roberts Jr. said the plaintiffs’ claims did not seem weighty enough to justify striking down a state law as unconstitutional, which on one theory would require a finding, he said, of “something that is essential to hold the country together as a national unit.”
“It seems to me it’s a bit of a stretch,” he continued, “to say somebody gathering records under F.O.I.A. fits that description.”
Justice Scalia added that the very goal of the law justified limiting it to citizens. “The purpose of it was not to enable people to get information per se,” he said. “It was to enable people to see how their government is working, so that they could attend to any malfeasance that is occurring in the process of government.”
Deepak Gupta, a lawyer for the plaintiffs, called that an oversimplification. “Transparency was one purpose,” he said, but “these laws also carried forward the much more longstanding rights to access based on personal interests and property interests.”
Justice Breyer acknowledged that the Constitution sometimes stopped states from discriminating in favor of local interests. But, he went on, “it’s pretty hard for me to put this case into that mold.”
Earle Duncan Getchell Jr., Virginia’s solicitor general, said the case was simple. The law did not invite constitutional scrutiny, he said, because it did not regulate commercial activity and because the asserted right of access was not fundamental. He listed other state programs that discriminated against noncitizens, including welfare payments, in-state tuition and assistance to local businesses.
The New York Times Company, along with many news organizations and advocacy groups, filed a briefsupporting the plaintiffs.
Justice Scalia, who is 76, said a right to government information could not be fundamental because laws like the one in Virginia were fairly new, starting in the 1960s. “I think it’s in my adult lifetime that Florida was the first to enact a sunshine law,” he said.
Mr. Getchell agreed. “They were very much the fad,” he said. “It happened in my lifetime, too.”
Justice Elena Kagan, 52, issued a kind of dissent. “I want to put myself on record,” she said, “as not remembering when these statutes were passed.”