                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0764n.06

                                            No. 12-5558
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS                             Aug 16, 2013
                                FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk


RICHARD JONES,                              )
                                            )
       Plaintiff-Appellant,                 )
                                            )
v.                                          )                  On Appeal from the United States
                                            )                  District Court for the Western
CITY OF MEMPHIS, Tennessee; Jill Madajczyk, )                  District of Tennessee
Senior Assistant City Attorney for Memphis, )
                                            )
       Defendants-Appellees.                )




Before:          BOGGS, ROGERS, and STRANCH, Circuit Judges.

          BOGGS, Circuit Judge. As with a number of other states, Tennessee has adopted a Freedom

of Information Act that grants access rights only to state citizens. Tenn. Code Ann. § 10-7-503

(2012). Richard Jones, a native of Ohio and representative of the National Action Network, brought

suit against the City of Memphis after officials denied his request for a copy of a winning public-

contract proposal as part of his advocacy for the civil-rights group. He claimed that the citizens-only

restriction violates the Privileges and Immunities Clause. See U.S. Const. art. IV, § 2, cl. 1. The

district court granted summary judgment against him, Jones v. City of Memphis, 868 F. Supp. 2d 710

(W.D. Tenn. 2012), and Jones appealed to this court.

          During the pendency of this appeal, the Supreme Court granted a writ of certiorari in

McBurney v. Young, 133 S. Ct. 421 (2012), a suit challenging Virginia’s citizens-only FOIA
No. 12-5558
Jones v. City of Memphis
provision. Because McBurney involved a question substantially similar to Jones’s, we stayed this

matter pending the outcome of that case. The Court recently rendered its decision in McBurney,

upholding the Virginia statute by a unanimous vote. 133 S. Ct. 1709 (2013).

        Jones’s challenge to the Tennessee statute relies on two distinct theories. He first claims that

the statute abridges his fundamental right to “employment on government contracts in another state.”

Appellant’s Br. 15. Assuming arguendo that such a right is in fact protected by the Privileges and

Immunities Clause,1 the Court rejected a near-identical argument in McBurney. The petitioner

claimed that Virginia’s citizens-only FOIA restriction inhibited the rights of noncitizens to “ply their

trade, practice their occupation, or pursue a common calling.” Hicklin v. Orbeck, 437 U.S. 518, 524

(1978). Though the Court agreed that the law burdened the petitioner’s ability to earn a living in his

chosen profession, Virginia did not enact the law for the protectionist purpose of burdening out-of-

state citizens. McBurney, 133 S. Ct. at 1715. Rather, the Court reasoned, the Commonwealth

adopted the provision to allow state citizens to “obtain an accounting from the public officials to

whom they delegate the exercise of that power” and to ensure that the benefits of public record

keeping are realized by those who pay the fixed costs of creating and maintaining those records




       1
          This assumption is highly dubious. Compare Hicklin v. Orbeck, 437 U.S. 518, 529 (1978)
(holding that state ownership of natural resources cannot justify “requiring private employers
[contracted to extract the resources] to discriminate against nonresidents”), with United Bldg. &
Constr. Trades Council of Camden Cnty. v. Mayor and Council of City of Camden, 465 U.S. 208,
219 (1984) (“Public employment, however, is qualitatively different from employment in the private
sector . . . .”); see also Salem Blue Collar Workers Ass’n v. City of Salem, 33 F.3d 265, 270 (3d Cir.
1994) (“[W]e hold that direct public employment is not a privilege or fundamental right protected
by the Privileges and Immunities Clause of Article Four.”).

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No. 12-5558
Jones v. City of Memphis
without having to incur additional expenses from free riders. Id. at 1716. The same reasoning

applies here, and McBurney is thus dispositive of Jones’s first argument.

       Next, Jones claims that the FOIA restriction violates his fundamental right to “engage in the

political process with regard to matters of national political and economic importance,” citing the

Third Circuit’s now-abrogated opinion in Lee v. Minner, 458 F.3d 194, 198 (3d Cir. 2006). The

Court did not directly address this novel right created by the Third Circuit. Nonetheless, Jones’s

argument is doomed under the reasoning of McBurney. He would have us strike the FOIA restriction

because the right to engage in the political process has “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.” Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (No. 3,230). However,

Jones does not, and cannot, contend that the FOIA restriction prohibits him from actually engaging

in the political process. To be sure, his rights to petition, protest, demonstrate, and advocate—the

rights most fundamental to political discourse—are amply protected by the First Amendment. The

fact that Tennessee has placed administrative limits on access to public records in no way impinges

on those rights. See McBurney, 133 S. Ct. at 1718.

       What Jones ultimately seeks is the unfettered right to access any public document that may

relate to his civil-rights advocacy with the National Action Network. The McBurney Court did

address this argument: such a broad right does not fall within the scope of the Privileges and

Immunities Clause because Founding-era common law did not recognize this right, and it cannot be

said that unrestricted access to public documents is basic to the maintenance or well-being of the

union. Id. at 1718–19. We therefore reject Jones’s argument.

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Jones v. City of Memphis
       For the foregoing reasons, the judgment of the district court is AFFIRMED.




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No. 12-5558
Jones v. City of Memphis
STRANCH, Circuit Judge, concurring in the judgment.

        I agree that the recent decision in McBurney v. Young, 133 S. Ct. 1709 (2013), forecloses

relief for the Plaintiff in this case. I write separately only to note that I do not read McBurney as

necessarily foreclosing the application of the Privileges and Immunities Clause to each and every

right of access to public information.

        There is merit to the argument that access to public information in certain cases may be

protected by the Privileges and Immunities Clause. Lee v. Minner, 458 F.3d 194 (3d Cir. 2006),

explains why and includes arguments that I think may survive McBurney. Political advocacy is an

“‘essential activity’ which ‘bear[s] upon the vitality of the Nation as a single entity.’” Minner, 458

F.3d at 200 (quoting Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 387 (1978)). And

a minimal level of “access to public records is necessary to the ability to engage in that activity.” Id.

Jones may not have a constitutional right to unfettered access to information, McBurney, 133 S. Ct.

at 1718; but only the most cramped reading of the Privileges and Immunities Clause would limit its

reach to rights already guaranteed by some other part of the Constitution. If that were the case, the

Clause would be irrelevant.

        In McBurney, the Court noted that the right of “access to public information . . . framed

broadly—is not protected” by the Clause. Id. at 1715 (emphasis added). And the Court added that

the plaintiffs in McBurney had not contended that national unity suffered as a result of the citizens-

only FOIA provisions at issue. Id. at 1719. Presumably, then, a more narrowly framed right of

access to public information might be protected, if supported by specific evidence of harm to “the

maintenance or well-being of the Union.” Id. (quoting Baldwin, 436 U.S. at 387). Here, because

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Jones v. City of Memphis
Jones did not articulate such a right, nor support his argument with specific evidence, I am

constrained to concur in the majority’s decision.




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