Fins-IPG-21 _Schreibman v. Holmes et al_, No. 1:96CV01287, Plaintiff's proposed First Amended Complaint For Declaratory and Injunctive Relief (filed Aug 28, 1997 with: a) Motion to Change Attorney; b) Motion to Alter or Amend Order Dismissing the case; and c) Motion for Leave to File an Amended Compliant) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA VIGDOR SCHREIBMAN, ) ) Plaintiff, ) ) v. ) C.A. No. 1:96CV01287 (RMU) ) ) DAVID W. HOLMES, SECRETARY, ) FIRST AMENDED COMPLAINT FOR THE EXECUTIVE ) FOR DECLARATORY AND COMMITTEE OF ) INJUNCTIVE REIEF CORRESPONDENTS ) H304 Capitol ) [filed Aug 28, 10:00 am '97 with: a) Washington, DC 20515 ) Motion to Change Attorney; b) Motion to ) Alter or Amend Order Dismissing the case; and ) and c) Motion for Leave to File an Amended ) Compliant] EXECUTIVE COMMITTEE OF ) CORRESPONDENTS ) H304 Capitol ) Washington, DC 20515 ) ) and ) ) CHAIRMAN RICHARD DUNHAM, ) RICHARD COHEN, SEAN FORD, ) RICK MAZE, ALEXIS ) SIMENDINGER, KAREN TUMULTY, ) AND CRAIG WINNEKER ) H304 Capitol ) Washington, DC 20515 ) ) Defendants. ) ------------------------------ 1. This is an action under the First and Fifth Amendments of the Constitution for declaratory, injunctive, and other appropriate relief and seeking that the defendant Executive Committee of Correspondents adhere to the rules governing admission to the Periodical Press Galleries and issue plaintiff credentials that were improperly denied. Jurisdiction and Venue 2. This court has jurisdiction over this action pursuant to 28 U.S.C. secs 1331, 2201, and 2202. Venue is proper under 28 U.S.C. sec 1391(e). The Parties 3. Plaintiff Vigdor Schreibman is a full-time journalist and the publisher of the Federal Information News Syndicate (FINS). 4. Defendant Executive Committee of Correspondents controls the Periodical Press Galleries subject to the supervision of the Speaker of the House of Representatives and the Senate Committee on Rules and Administration under the authority of rule 34 of the House of Representatives and of rule 33 of the Senate. 5. Defendants Richard Dunham, Richard Cohen, Sean Ford, Rick Maze, Alexis Simendinger, Karen Tumulty and Craig Winneker are the members of the Executive Committee of Correspondents. 6. Defendant David W. Holmes is the secretary for the Executive Committee of Correspondents. Plaintiff's Application and Defendants' Illegal Denial 7. In August, 1995, plaintiff submitted a completed application for membership in the Periodical Press Galleries in accordance with the Rules for the Periodical Press Galleries of the U.S. Senate and House of Representatives. 8. Rule 1, in relevant part, states that "persons eligible for admission to the Periodical Press Galleries must be bona fide resident correspondents of reputable standing, giving their chief attention to the gathering and reporting of news. They shall state in writing the names of their employers and their additional sources of earned income, and they shall declare that, while a member of the Galleries, they will not act as an agent in the prosecution of claims, and will not become engaged or assist, directly or indirectly, in any lobbying, promotion, advertising, or publicity activity intended to influence legislation or any other action of the Congress, nor any matter before any independent agency, or any department or other instrumentality of the Executive branch...." 9. Rule 2, in relevant part, states that "applicants must be employed by periodicals that regularly publish a substantial volume of news material of either general, economic, industrial, cultural or trade character. The periodical must require such Washington coverage on a continuing basis and must be owned and operated independently of any government, industry, institution, association or lobbying organization. Applicants must also be employed by a periodical that is published for profit and is supported chiefly by advertising or by subscription, or by a periodical meeting the conditions in this paragraph but published by a nonprofit organization that, first, operates independently of any government, industry, or institution and, second, does not engage, directly or indirectly, in any lobbying or other activity intended to influence any matter before Congress or before any independent agency or any department or other instrumentality of the Executive branch. House organs are not eligible." 10. Plaintiff satisfies the first eligibility rule for the Periodical Press Galleries. a. Plaintiff is a resident of Washington, D.C and a full-time journalist. Plaintiff began publishing FINS on January 11, 1993 and has continuously published it on a biweekly basis since that date. b. Plaintiff has also maintained during all times relevant herein, an electronic archive, "Fins Information Age Library," which contains carefully selected documents in a purposive format communicating the emerging philosophy of the Information Age. In addition to two directories about FINS, there are three sets of substantive directories, which are focused upon, Relevant Information, Critical Synthesis, and Dialogue, includes back issues of FINS' Special Reports and News Columns. This archive has been maintained, in support of FINS, first, at the inforM system of the University of Maryland [URL http://inform.umd.edu/FINS/], until July 1997, and currently, at the SunSITE (Sun Software, Information, and Technology Exchange) at the University of Tennessee, Knoxville [URL http://sunsite.utk.edu/FINS/]. c. Plaintiff was granted press gallery credentials in 1993 and they were promptly renewed in 1994 and 1995, as a correspondent for the Electronic Public Information Newsletter (EPIN), a one-man periodical owned and operated by James McDonough. EPIN was a subscriber to FINS. d. EPIN published FINS' News Columns in print format, to an audience of about 500 paid subscribers. The same News Columns together with Special Reports and other articles were publish by FINS in electronic format over the Internet, and disseminated to a much wider audience of about 20,000 persons with a professional interest in the emerging "Information Age," including a small paid subscriber group and larger unpaid discussion groups. e. Press facilities of the Periodical Press Galleries are presumed, under the constitution, open to all bona fide Washington- based journalists, who otherwise comply with the Press Gallery Rules. Plaintiff was entitled to be treated as a bona fide journalist for First Amendment purposes by virtue of: (i) Schreibman's residence in Washington and the issuance by the Committee of press credentials to Schreibman in 1993, 1994, and 1995, upon the application of EPIN; (ii) the regular publications and distribution of FINS for many years over the Internet, beyond the limited publication in print of EPIN; and (iii) recognition of Schreibman as a bona fide journalist by other widely respected press authorities with personal knowledge of the facts. f. Plaintiff is a reporter entitled to recognition as a "bona fide resident correspondent of reputable standing," by the Periodical Press Galleries, and was, therefore, entitled to press credentials in 1996, upon his application under the name of FINS. f. Plaintiff does not engage or assist, directly or indirectly, in any lobbying, promotion, advertising, or publicity activity intended to influence legislation or any other action of the Congress, or any matter before any independent agency, or any department or other instrumentality of the Executive branch. 11. Plaintiff satisfies the second eligibility rule for the Periodical Press Galleries. a. Plaintiff publishes under the name of FINS. FINS is published biweekly and covers legislation and federal public policy matters pertaining to: public information, information resources management, information infrastructure, telecommunications infrastructure, and global information infrastructure. FINS' areas of reporting requires, and will continue to require, Washington coverage. Plaintiff has put in, during the period relevant herein, more than six thousand hours, attending congressional hearings, gathering documents from federal agencies, reviewing testimony and legislation, reading a wide variety of relevant reports, books, and professional literature and monitoring two dozen or so Internet discussion lists as context for the news. During the same period, Plaintiff has written hundreds of News Columns, Special Reports, and other articles, reporting the relevant news that is valid in a thoughtful, thorough, and provocative manner. These publications are archived at Fins Information Age Library, referred to in the above paragraph 10b. b. FINS is distributed exclusively in electronic format over the Internet at very low cost, and has been chiefly supported during all periods relevant herein by subscription revenue, supplemented by the retirement income of Vigdor Schreibman. c. Plaintiff is the proprietor of FINS, and he operates independently of any lobbying or other organization. During all periods relevant herein FINS was published for profit and solicited paid subscriptions in each issue. d. Notwithstanding the statement in the preceding paragraph 11c, FINS has never actually made a profit and has operated, in fact, as a not-for-profit organization throughout the period relevant herein. This is the pattern and practice of many, if not most, news services presently operating over the Internet, which does not yet support profitable news services. e. Internet news services are entitled to First Amendment protection with regard to any interpretation of the Rules of the Press Galleries, whether actually operating at a profit or without profit, due to market constraints. 12. On January 29, 1996, the Executive Committee of Correspondents convened to consider, among other matters, the application of plaintiff. According to the published minutes of the meeting, Alexis Simendinger moved to reject Federal Information News Syndicate for "failure to meet rules 1 and 2." Rick Maze seconded the motion and it was adopted 5-1. 13. On February 4, 1996, plaintiff wrote to David W. Holmes, secretary for the Executive Committee of Correspondents, and indicated plaintiff's intention to appeal the decision. Plaintiff requested a hearing before the Executive Committee at the earliest possible time, citing the expiration of his current press credentials and the personal hardship that would result. 14. On or about March 20, 1996, Mr. Holmes contacted plaintiff and indicated that the Executive Committee of Correspondents would convene on March 28, 1996 to discuss, among other matters, the possible reconsideration of plaintiff's application. 15. On March 28, 1996, Plaintiff appeared before the Executive Committee of Correspondents with counsel Marc Rotenberg, esq., to request that plaintiff, based on his conformance with rules 1 and 2, be granted credentials. After an extensive discussion of the relevant facts the Executive Committee of Correspondents took no action. No official explanation for the refusal was reported. 16. In rendering the said decision, members of the Executive Committee of Correspondents, and other officials with personal knowledge of the practices of the Committee, have informed FINS, directly and in their public statements that: a. Members of the Committee are committed to resisting application of freedom of the press within the process of authorizing press gallery credentials, under the official policy that, "In Congress, freedom of the press is irrelevant." b. Members of the Committee, in deciding against the application for press credentials of plaintiff, followed a set of arbitrary criteria outside of the authority of the Gallery Rules as limited by First Amendment principles, based upon their personal bias and prejudice about: (i) fear of the political "advocacy" to which FINS is devoted in "communicating the emerging philosophy of the "Information Age"; (ii) market-based standards of profitability; (iii) the work of reporters who are retired citizen; (iv) the financing of publishing, in part, by a reporter's retirement income; (v) publication via the Internet at very low cost; (vi) and publishing products and services that are offered over the Internet to the public at very low subscription price. 17. The decision by the Committee to deny plaintiff's application guided by the aforementioned criteria, was arbitrary, outside the scope of the Committee's authority, rendered in bad faith, without consideration for, and in violation of plaintiff's rights under the First and Fifth Amendments to the United States Constitution. 18. Defendants failed to articulate any specific basis for denying plaintiff's application for credentials in 1996, and thereby, violated plaintiff's rights under the due process clause of the Fifth Amendment. 19. On April 23, plaintiff appealed the decision of the Executive Committee of Correspondents' to the Office of the Speaker of the House of Representatives and to the Senate Committee on Rules and Administration. No decision was ever made on this appeal, by either the Office of the Speaker of the House of Representatives or the Senate Committee on Rules and Administration. 20. Defendants' actions and the continuing procedural delays in obtaining necessary relief, for which plaintiff has been in no way personally responsible, have caused and continues to cause plaintiff irreparable injury. Requested Relief WHEREFORE, plaintiff prays that this Court: A. declare that defendants' denial of plaintiff's application for Periodical Press Galleries credentials violated plaintiff's First and Fifth Amendment rights to freedom of the press; B. declare that defendants' failure to explain the specific reasons for denial of plaintiff's application for Periodical Press Galleries credentials violated plaintiff's Fifth Amendment right to due process; C. order defendants' to issue plaintiff Periodical Press Galleries credentials; D. provide for expeditious proceedings in this action; E. award plaintiff his costs and reasonable attorney's fees in this action; and F. grant such other relief as the court may deem just and proper. Respectfully submitted, ______________________________ VIGDOR SCHREIBMAN 18 - 9th Street NE #206 Washington, DC 20002 phone: 202-547-8715 email: fins@access.digex.net Attorney for Plaintiff, pro se