Fins-IPG-24
Court Rejects Action Against Press Galleries by Fins (Apr 1998)

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FINS SPECIAL REPORT                                          April 10, 1998
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COURT REJECTS ACTION AGAINST PRESS GALLERIES BY FINS
Speaker Gingrich Seeks Defeat of Press Freedom in Congress

Washington, DC--Legal action by the Federal Information News Syndicate
(FINS), to secure renewal of a press pass from the US Capital, Periodical
Press Galleries, was denied in an order filed Feb 25, 1998, by US District
Judge Ricardo M. Urbina.  No notice of the order was given to FINS.
Disclosure of the court's action did not come to FINS' attention until more
than a month later, triggered by an email message sent by Jay Grant (a
prominent lobbyist and friend of Speaker Newt Gingrich!), indirectly alerted
FINS to the matter.

  FINS filed suit against the Press Galleries in June 1996 seeking reversal
of their decision refusing to renew the press pass previously granted to FINS
in 1993, 1994, and 1995.  No reason was given for the refusal, and FINS
charged that the decision constituted a violation of the provisions of the
First Amendment that "Congress shall make no law ... abridging the freedom
... of the press."  When the US Department of Justice failed to enter an
appearance in the case to defend against the suit, as it traditionally would
in suits against Congress, the Speaker of the US House of Representatives
appointed attorney Michael Allen Stern special counsel to oppose the suit.  

  The Speaker's Office claims that the adjudication of applications for press
passes by the Press Galleries, are "legislative acts," and that such acts are
purportedly immune from the strict prohibitions of the First Amendment.  They
sought dismissal of the complaint filed by FINS.  The US District Court in
the District of Columbia subsequently issued an order, Aug 1997, dismissing
the case outright because the complaint was found to be deficient.  FINS
sought reconsideration of that order last August on the grounds that
dismissal of the case without an opportunity to amend the complaint was
erroneous under the controlling precedent of the decision in the case of
_Firestone v. Firestone_, 76 F3d 1205, 1208-1209 (DC Cir 1996). 

  In _Firestone_ the Circuit Court determined that the dismissal of a case
for lack of an adequate pleading is warranted only when the trial court
"determines that the allegation of other facts consistent with the challenged
pleading could not possibly cure the deficiency."  FINS stated in their
motion for reconsideration that, "No such determination was made in the
instant case nor could such a determination be made."

  In an amended complaint filed with the motion, FINS challenged the
legitimacy of the practices of the Press Galleries, for reasons of "bias and
prejudice." Members of the Periodical Press establishment have delegated
authority to adjudicate applications by reporters with whom they are in
direct competition, thus bringing into question the fairness of the
proceedings.  Such practices have been struck down by the Supreme Court in
various cases involving other groups (e.g., professional optometrists), when
members of a regulatory board might have personal interests that threaten the
"constitutional right to a fair and impartial hearing," _Friedman v. Rogers_,
440 US 1, 18-19 (1978) (citing cases).  

  The decision by Judge Urbina, Feb 25, gave no consideration to the specific
grounds and the controlling legal precedent of the Circuit Court, which FINS
explicitly presented in their motion and accompanying memorandum.  Instead,
Judge Urbina concluded that the motion by FINS for reconsideration "failed to
address" any of the grounds established by the applicable rule for
reconsideration of the dismissal order.  

  Commenting on the Judge Urbina's order, Vigdor Schreibman, publisher and
editor of FINS said that, "The court's decision dismissing the case is
clearly erroneous.  An appeal will be prosecuted to overturn the order."

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Federal Information News Syndicate, Vigdor Schreibman, Editor & Publisher, 
18 - 9th Street NE #206, Washington, DC 20002-6042.  Copyright 1998 FINS. 
Internet: fins@access.digex.net.  Browse the new Fins Information Age 
Library now located at URL HTTP://sunsite.utk.edu/FINS/. 
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