roundtable: FINS LAWSUIT DISMISSED BY US DISTRICT COURT JUDGE URBINA

roundtable: FINS LAWSUIT DISMISSED BY US DISTRICT COURT JUDGE URBINA

FINS LAWSUIT DISMISSED BY US DISTRICT COURT JUDGE URBINA

Vigdor Schreibman - FINS (fins@access.digex.net)
Mon, 25 Aug 1997 06:12:00 -0400 (EDT) 

Date: Mon, 25 Aug 1997 06:12:00 -0400 (EDT)
From: Vigdor Schreibman - FINS <fins@access.digex.net>
To: roundtable@cni.org
Subject: FINS LAWSUIT DISMISSED BY US DISTRICT COURT JUDGE URBINA
Message-Id: <Pine.SUN.3.96.970825060502.2872A-100000@access4.digex.net>


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FINS SPECIAL REPORT                                         AUGUST 25, 1997
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FINS LAWSUIT DISMISSED BY US DISTRICT COURT JUDGE URBINA
"Immunity From Suit" Granted Press Overlords in Congress
Access to Press Facilities Barred in Internet Press Case

Washington, DC--U.S. District Court Judge Ricardo M. Urbina, issued a
decision last week, Aug 18, dismissing a case against the Periodical Press
Galleries, at the US Capitol, for their denial of an application for press
accreditation filed during the summer of 1995, by Vigdor Schreibman, editor
and publisher of the Federal Information News Syndicate (FINS).  The law suit
was originally filed on behalf of Schreibman, June 10, 1996, by attorney Marc
Rotenberg, who charged that Schreibman was a reporter who was found by the
same officials, to be qualified for press credentials in 1993, 1994, and
1995.  Denial of his application for a press pass in 1996, without any
specific reasons given for the denial, was a violation of Schreibman's First
Amendment right to freedom of the press.  

  An important factor in this lawsuit, was the threat perceived by members of
the old mass media order, of the new media of the Internet according to
findings of the Assistant Senate Historian, Donald Richie [Fins-IPG-01].
Schreibman's application for press credentials as an Internet reporter was
the first in the history of the Periodical Press Galleries.  In addition,
press officials expressed strong concerns over Schreibman's so-called
advocacy, "communicating the emerging philosophy of the "Information Age"! 

     A copy of the original complaint and the court order issued last week,
     together with additional background information about this controversy,
     are online at the new Fins Information Age Library [FIAL], now available
     at URL http://sunsite.utk.edu/FINS/, go to the directory of the
     Internet_Press_Gallery_Project (IPG).

  In response to a motion to dismiss Schreibman's complaint, which was filed
by the Government, Aug 9, 1996, US District Judge Urbina, found that the
defendants, were entitled to "immunity from suit" under the Speech or Debate
Clause of the US Constitution.  The defendants are members of the Executive
Committee of Correspondents, of the Periodical Press Galleries, at the US
Capitol.  They include a group of press representatives mainly from big
business periodical publishers, including: Richard S. Dunham, McGraw-Hill;
Richard E. Cohen, National Journal; Sean J. Ford, Tax Notes; Richard Maze,
Army Times Publishing Co.; Alexis A. Simendinger, BNA News; Karen Tumulty,
Time, Inc.; and Craig A. Winneker, Roll Call; in addition to David W. Holmes,
Secretary of the Committee.  

  The court found, that by "performing delegated functions [which] were an
integral part of the legislative machinery," the members of the Executive
Committee, were entitled to "the same protection of immunity accorded to a
Member of Congress."  The court evidently chose to disregard the main legal
issue presented by Schreibman, based on a long line of Supreme Court
opinions, which have drawn a key distinction between "legislative speech or
debate and associated matters such as voting and committee reports and
proceedings," on the one hand, and "executing a legislative order," or
"carrying out [legislative] directions on the other." By its precedent, the
Supreme Court reflects, "a decidedly jaundiced view toward extending the
[Speech or Debate] Clause to shield the latter."  The precedent is discussed
in a research report available online [Fins-IPG-18].

  Nevertheless, the court also pointed out that this "immunity from suit"
does not extend to "claimed bad faith or illegal conduct," which would
presumably authorize suits for violations of First Amendment freedoms such as
freedom of the press raised by Schreibman.  In this regard, the court
recognized Schreibman's claim that "the defendants wrongfully refused him
access to the Periodical Press Galleries of the United States Congress
thereby infringing on the constitutional guarantees of freedom of the press."
Nevertheless, the court found that the text of the complaint filed in the
case on behalf of Schreibman, by attorney Rotenberg, "does not allege that
the defendants were acting outside the scope of their authority, nor allege
that they rejected his application in bad faith."

  The Executive Committee did not provide any official reasons for their
actions in this case, they just denied Schreibman's application for a press
pass, thereby, preventing his access to the press galleries.  Plaintiff
claimed that this conduct also prevented a fair review of the decision in
violation of Schreibman's due process rights.  However, the court recognized
defendants' statement in court by their attorney, alleging that  "FINS is not
published for profit, that Mr., Schreibman does not receive a salary from
FINS, and that Mr. Schreibman does not earn his livelihood as a journalist." 
In an attempt to overcome due process violations, the Government's attorney
has asserted his personal knowledge of the facts, but his statement on these
hotly contested matters "is unethical" under federal precedent [_see e.g.,
United States v. Samad_, 754 F.2d 1091 (4th Cir, 1984)].

  Indeed, the attempt by defendants to impugn the bona fide character of
Schreibman's work as a reporter--is brought into sharp question by his
consistent Special Reports and News Columns published during the past five
years, considered by a number of eminent news authorities (e.g., Jerry Landy,
and James Fallows, among others), to be "an invaluable information resource"
"providing bona-fide news reports to an attentive audience." A collection of
such comments along with back issues of FINS, are posted at Fins Information
Age Library, IPG directory, where members of Congress, the Courts, the Press,
and the American public-at-large, and others, can all take notice. 

  Moreover, a look at authorities in this field, reveals that, "A dismissal
under Rule 12(b)(6) generally is not final or on the merits and the court
normally will give plaintiff leave to file an amended complaint.  The federal
rule policy of deciding cases on the basis of substantive rights involved
rather than on technicalities requires that plaintiff be given every
opportunity to cure a formal defect in his pleading" [5A Wright and Miller,
Federal Practice and Procedure, sec 1357, p. 360-361].  

  Nevertheless, on the Government's motion to dismiss "the complaint,"
supported by the Government's unethical statement of the facts and the
Court's disregard of Supreme Court precedent, Judge Urbina issued his
order that "this case" be dismissed from the docket.  This disposition
threatens to bar any further attempt to present this claim on the merits.  

  The decision appears to be a throwback to the same outrageous conduct that
originally motivated Congress in 1841 to allocate suitable accommodations for
reporters [126 Cong. Rec S14905, 14906 (daily ed. Nov. 24, 1980) (statement
of Sen. Byrd)].  In 1841 the Senate gave special treatment to Washington
papers, relegating other newspapers to inferior facilities. James Gordon
Bennett, who founded the New York Herald attempted to assert equal access but
was rejected.  

  Bennett then published this scathing editorial: "We have to record this day
one of the most outrageous, high-handed, unconstitutional acts ever
perpetrated by any legislative assembly in a free land--an act of despotism,
tyranny and usurpation against the liberty of the press." 

  Vigdor Schreibman, editor and publisher of FINS, has issued a statement
that, "The court has issued a clearly erroneous decision in this very
important matter, granting arbitrary powers over a free press to the press
overlords, right in the belly of the US Congress."  "I am now reviewing
appropriate legal remedies," Schreibman added.

============================================================================
FederalInformation News Syndicate, Vigdor Schreibman, Editor & Publisher,
18 - 9th Street NE #206, Washington, DC 20002-6042.  Copyright 1997 FINS. 
Internet: fins@access.digex.net.  Browse the new Fins Information Age
Library now located at URL http://www.sunsite.edu/FINS/.
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