In the Supreme Court of the United States Schreibman v. Holmes, et al., N0. 99-7779 Petition for writ of certiorari Filed January 12, and docketed January 13, 2000 [Front matter omitted] PART I PARTIES Executive Committee members elected in the 106th Congress include: Chairman Craig Winnecker, Richard Maze, Amy Borrus, Richard Cohen, Cheryl Bolen, Jay Carney; and Heide Glenn [1]. n1. Appellant filed a motion for substitution pursuant to Appellate Rule 43(c)(1), March 31, 1999, but the court took no action on the motion. PETITION FOR WRIT OF CERTIORARI Vigdor Schreibman respectfully petitions for a writ of certiorari to review the judgment of the U.S. Court of Appeals for the District of Columbia Circuit in this case. OPINIONS BELOW Judgment of the U.S. Court of Appeals for the District of Columbia, and order denying reargument en banc (A1, A12), are unreported. Memorandum Orders of the U.S. District Court for the District of Columbia, dismissing the complaint and denying reconsideration (A3,A14), are also unreported. JURISDICTION The DC Circuit entered its judgment on September 13, 1999, and petition for rehearing en banc was denied November 3, 1999. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). RULES AND CONSTITUTIONAL PROVISIONS INVOLVED U.S. Senate, Standing Rules, Rule XXXIII, § 2 (Rule 33, Senate Manual of Standing Rules, S.Doc. No 1, 104th Cong., 1st Sess. (1995)). U.S. House of Representatives, Rule XXXIV, § 2 (Rule 34, Rules of the House of Representatives, H.R.Doc. No. 342, 103d Cong., 2d Sess. (1995)). Rules Governing Periodical Press Galleries (Congressional Directory, S.Pub. 104-14, 104th Cong. 2d Session (1995-1996): pp.1018). Article I, Section 5, Clause 2 of the U.S. Constitution provides that "Each House may determine the Rules of its Proceedings," and Section 6 provides that "The Senators and Representatives ... for any Speech or Debate in either House ... shall not be questioned in any other place." Amendment I of the U.S. Constitution provides that "Congress shall make no law ... abridging the freedom of speech, or of the press ..." STATEMENT OF THE CASE Historical pattern of discriminatory conduct and abuse. From the earliest period of the Republic when private publishers printed the Journals of the U.S. Senate and House of Representatives, private stenographers recorded public information about Congressional debates, and "letter- writers" reported to out-of-town newspapers, members of Congress have struggled to control political criticism and members of the established press have struggled to exercise control over their economic and political interests in Washington news reporting [2]. When Congress found that it was unable to control lobbying by members of the media, the latter proposed and Congress agreed ultimately to delegate to the media a regime of self-regulation with broad media control over access to the designated press galleries. Washington reporters have used their control over access to serve their institutional bias, for example, The New York Times, which engineered the first agreement with Congress in 1879 for broad media control over access, and held a commanding position in that process for many years, reportedly used their pages well into the 20th century as a "willing vehicle for Presidential politics and propaganda" [3]. n2. F.B. Marbut, "The Letter-Writers in the Senate," in R.O. Blanchard, ed., Congress and the News Media 28-39 (1974); D.A. Ritchie, Press Gallery 12 (1991). n3. D.A. Ritchie infra note 2, at 109-110, and 214 (Harvard Press, 1991); Washington merry-go-round 321-322 (1931) (This publication, which was released anonymously was, "the work of two angry young reporters, Drew Pearson, a tall suave diplomatic correspondent for the Baltimore Sun, and Robert S. Allen, a short, combative, and unrelenting Washington bureau chief for the Christian Science Monitor." Allen wrote chapter fifteen, on the press. He later became President of ABC News, Ritchie told this reporter in an interview in his office at the Senate Hart Building, 14 Dec 1998). African Americans and women have been arbitrarily excluded. Introduction of any new technology, which might upset the status quo -- such as shifting from daily newspaper publishing by telegraphic dispatches, to periodical publishing, radio, television, and now Internet! -- have been regularly used "as an excuse to exclude competitors," according to Donald Ritchie, Assistant Senate Historian, and author of "Press Gallery" (Harvard Press, 1991)[4]. n4. Statement of Donald Ritchie, Assistant Senate Historian and author of "Press Gallery" infra note 2, quoted in The New York Times, Feb. 26, 1996, at D7, col. 1. In the one rare federal case involving the Periodical Press that squarely addressed such issues the court found: Under a broad, generalized congressional delegation, authority has been given certain newsmen to prevent other newsmen from having access to news of vital consequence to the public. As a result, a group of established periodical correspondents have undertaken to implement arbitrary and unnecessary regulations with a view to excluding from news sources representatives of publications whose ownership or ideas they consider objectionable. Responsible officials of the House and Senate have not forestalled such discrimination by promulgating clear eligibility requirements [citations omitted] nor apparently have they developed any other means of checking abuse of the Association’s delegated authority [5]. n5. Consumers Union of United States, Inc., v. Periodical Correspondents’ Association, 365 F.Supp. 18, 26 (D DC 1973), reversed on other grounds Consumers Union of United States, Inc., v. Periodical Correspondents’ Association, 515 F.2d 1341 (DC Cir. 1975). Present pattern of alleged illegal conduct. The technological trigger for the historical pattern of discriminatory conduct and abuse has been especially exacerbated according to Vin Crosbie, a media expert [6], , by the advent of the Internet "many-to-many" media that threatens the current "media aristocracies and status quo in much the ways that the advent of democracy did to the aristocracies of two centuries ago." Petitioner Vigdor Schreibman was recognized by Crosbie as an example of one who has "ably scouted the coming battle about which way the future communications and media will follow" [7]. n6. See "On the new dimension of media" by Vin Crosbie, now President of Digital Deliverance, email message transmitted via the "online-news" discussion list, 19 Nov 1995, online: n7. See Vin Crosbie infra note 6. The transition from print to electronic newspapers was facilitated by the "online-news" Internet discussion group, which was established by Steve Outing, columnist for Editor and Publisher magazine and Internet publishing consultant , supported by Gordon Thompson, Manager, Internet Services, The New York Times , and other established news institutions. Mr. Schreibman sought to introduce into the discussion of the online-news list, genuine engagement about plans for the future of the news media, to facilitate many-to-many participation in the media. In response, the "media aristocracies" participating in the online-news list attempted, as Vin Crosbie predicted, to resist any discussion of change to the status quo, and harsh friction developed between the established media and Mr. Schreibman. For example, during late 1994 Mr. Schreibman brought into question for the online-news list the need compelled by Internet realities to reconsider current practices and design a future of electronic media that sustains not merely what we "can" have but what we "ought" to have. The first reaction was a vicious personal attack on Mr. Schreibman who was denounced as "a trespasser, an interloper, a pompous egalomaniacal, buffoon" [8]. n8. "Fins Rejects Censorship by mass media group," (16 Dec 1994), in FINS, online: Finally in mid-April of 1995 an exchange of 26 messages addressing this need disclosed the view of ten out of seventeen participants who "simply rejected the major significance of interactive discussion groups." What they wanted was not to serve the public good in the new media but, instead, to "repurpose editorial material" as an opportunity to increase profits without new expenses [9]. n9. "Transition to online news" (April 24, 1995), in FINS, online: This discussion, ironically, coincided with the inauguration of a super website of 140 newspapers, "New Century Network" (NCN) sponsored by the "media aristocracy," which was designed to maximize profits of newspapers. But the threat of Internet became palpable when nobody came to the launch party, and NCN’s board later "decided to pull the plug" after investing more than $25 million, according to a story published in Business Week (March 23, 1998), online: The present controversy and legal action. Petitioner Vigdor Schreibman is an Internet-based correspondent, news gatherer and reporter. He publishes a news column, special reports, and occasional papers, regularly, as sole proprietor of the publishing entity called, "Federal Information News Syndicate" ("FINS"). FINS is published exclusively in electronic format via Internet, and is disseminated on Internet discussion lists, news groups, and at Fins Information Age Library on the World Wide Web At the actual meeting to discuss FINS’ application, on March 28, 1996, Mr. Richard Cohen, an Executive Committee member, and correspondent for The National Journal, attacked Mr. Schreibman for the "advocacy" he engaged in evidenced by FINS’ dedication to, "Communicating the emerging philosophy of the ‘Information Age," which Cohen said was grounds for denial [14]. n14. The same argument was taken up in an editorial, "Press Gallery pros," published in The Hill newspaper (April 10, 1996): p. 18. The editorial featured a slogan, "Keep advocates out." When questioned by Mr. Schreibman about broad mass media advocacy of capitalism, Mr. Cohen indicated he did not think that was objectionable advocacy. At the time of the meeting The National Journal, had an application pending before the Executive Committee for approval of credentials for a new Internet webservice called "PoliticsUSA" [15]. At that same meeting, March 28, Mr. Maze fiercely attacked Mr. Schreibman because he did not like the message that Mr. Schreibman had sent via Internet, discussing the major plans that The Army Times had for use of the Internet, and a favorable article that had been published on that topic by Steve Outing, owner of the online news discussion list [16]. n15. The New York Times, infra note 4, reported that, "While FINS was turned down, the gallery appears poised to admit another internet applicant for credentials, a flashy political home page dubbed PoliticsUSA ." The National Journal application was later withdrawn from the Periodical Press Gallery. The same story, which dismissed FINS as one of the "throngs of Lilliputans among established press Gullivers," was written by Michael Wines, a former employee of The National Journal and protege of Richard E. Cohen! n16. Internet message to Mark Rotenberg from Vigdor Schreibman, 15 Feb 1996, in re Executive Committee member Rick Maze, online: The course of proceedings, and its disposition in the court below. On June 10, 1996, the instant complaint was filed in the U.S. District Court [17]. Jurisdiction was invoked pursuant to 28 U.S.C. §§ 1331, 2201 and 2202. n17. Complaint For Declaratory and Injunctive Relief, filed June 10, 1996 [USDC document 1-1]. The defendants Executive Committee of Correspondents moved, on Aug 8, 1996, to dismiss the complaint [18], on the grounds that Mr. Schreibman’s claims were nonjusticiable under the Rulemaking and Speech and Debate Clauses of the Constitution, U.S. CONST. art. I, § 5, cl. 2; and art. I. § 6, cl. 1. The Executive Committee also sought dismissal for failure to state a claim upon which relief can be granted, pursuant to FED. R. CIV. P. 12(b)(6). They alleged that the complaint failed to allege facts that amount to a violation of plaintiff's constitutionally protected rights. n18. Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss, filed Aug 8, 1996 [USDC document 2-1]. Mr. Schreibman responded, by counsel, questioning the relevance of the Rulemaking Clause in this case, which does not challenge the Gallery Rules, and also raised a genuine controversy concerning the functions of the Executive Committee [19]. Unlike the situation in Consumers Union, which granted legislative immunity under the Speech or Debate Clause when taken together with the Rulemaking Clause, the instant case involves only a challenge to the illegal enforcement of the relevant Gallery Rule. n19. Plaintiff’s response to defendant’s motion to dismiss [USDC document 6-1]. On Aug 18, 1997, the district court dismissed the case on the grounds that the case was nonjusticiable, under the precedent of Consumers Union of US, Inc. v. Periodical; Correspondents’ Association, 515 F.2d 1341 (DC Cir. 1975) [20]. The court also found in pertinent part, that "Mr. Schreibman does not allege that the defendants were acting outside the scope of their authority, nor does he allege that they rejected his application in bad faith." n20. Memorandum order granting defendants’ motion to dismiss [USDC document 10-1; App. A3]. Following the order of dismissal, Mr. Schreibman moved, on August 18, 1997, to alter or amend the judgment pursuant to FED. R. CIV. P. 59(e), combined with a motion under FED. R. CIV. P. 15(a), for leave to amend the complaint, together with and a proposed amended complaint [21]. The Rule 59(e) motion was based on the grounds that the order of dismissal, to the extent it was with prejudice [22], was erroneous under the court's opinion in Firestone v. Firestone, 76 F.3d 1205, 1208-1209 (DC Cir. 1996), where the court failed to determine that "the allegations of other facts consistent with the challenged pleading could not possibly cure the deficiency." The Rule 15(a) motion was based on the grounds that justice requires that, "plaintiff be given an opportunity to correct the defects in the original complaint" [23]. The court denied the Rule 59(e) motion, by finding in pertinent part that, "(P)laintiff’s motion has failed to establish an error of law or fact in the court’s memorandum opinion," and the Rule 15(a) motion was stricken [24]. n21. Plaintiff's motion to alter or amend order dismissing case [motion for reconsideration], and plaintiff's motion for leave to file amended complaint, with exhibit A, first amended complaint, were combined and filed Aug 18, 1997 [USDC documents 13-2, 13-1; App. C1, C4, C7]. n22. See Memorandum order granting defendants' motion to dismiss, entered Aug 18, 1997 [USDC document 10-1; App. A3]. Dismissal of the case under FED. R. CIV. P. 12(b)(6) is a "judgment on the merits." Bell v. Hood, 327 U.S. 678 (1946); see also FED. R. CIV. 41(b), which provides in pertinent part: "Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or a failure to join a party under rule 19, operates as an adjudication upon the merits." n23. See documents cited infra note 21. n24. Memorandum order denying plaintiff’s motion for reconsideration [USDC document 16-1; App. A14]. REASONS FOR GRANTING THE WRIT I. THE DECISION BELOW SQUARELY CONFLICTS WITH THIS COURT’S DECISIONS A. Jusiticiability. The DC Circuit panel judgment says that the Executive Committee is entitled to immunity under the Speech or Debate Clause of the US Constitution, "because making decisions about whom to admit to congressional galleries is a legislative function. See Consumers Union v. Periodical Correspondents’ Ass’n., 515 F.2d 1341 (DC Cir. 1975)" [25]. This decision conflicts with the facts of this case and the holding in Consumers Union on which it relies, and also conflicts with the decisions of this Court. n25. App. A1. The lower courts have disregarded the critical facts of the instant case, which are distinct from those upon which Consumers Union was predicated. Press credentials for a nonprofit organization were denied in Consumers Union, under then applicable Periodical Press Gallery Rule 2, which limited access to periodicals published "for profit" [26]. n26. Consumers Union, 515 F.2d at 1342-1343. The publisher challenged the constitutionality of Rule 2 but the court declined to rule on the challenge after determining that "the action in question is not so facially violative of the constitutional guarantees as to commend reexamination of established principles of justiciability ..." [27]. Instead, the court held that the case was nonjusticiable because, "(I)t involves matters committed by the constitution to the Legislative Department and as to which the acts of the [Executive Committee of Periodical Correspondents], under the circumstances, did not breach the limits of legislative immunity" [28]. The effect of the Speech or Debate Clause, the court also ruled, settled the issue of nonjusticiability. n27. Consumers Union, 515 F.2d at 1347. n28. Consumers Union, 515 F.2d at 1346. In thus bringing into play both the Rulemaking power and the Speech or Debate Clause, the court confirmed in Consumers Union that it would be "indeed, improper" to consider Speech or Debate Clause immunity separate from the fact that that case "involves matters committed by the Constitution to the Legislative Department" [29]. In short, the Rulemaking power and Speech or Debate Clause immunity, in Consumers Union, were found to be inseparable issues. n29. Consumers Union, 515 F.2d at 1346, 1351. The instant action also involves a periodical operating as a nonprofit organization, but there is no challenge to any legislative functions of the Executive Committee and the case involves no legislative action. The version of Press Gallery Rule 2, upon which Consumers Union was based, was overthrown by Congress in 1979. Rule 2 now explicitly authorizes accreditation of a periodical published by a nonprofit organization [30]. n30. Congressional Directory, 96th Cong. 1st Sess., Periodical Press Gallery Rule 2 (1979): p. 901. The 1979 version of Press Gallery Rule 2, is subject to a provision, which prohibits nonprofit organizations from engaging, "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." This prohibition does not change any substantive requirement for accreditation of Mr. Schreibman or FINS. The provision is substantially the same contained in Rule 1, as to which all correspondents and reporters are bound, including Mr. Schreibman. The prohibition does not, however, apply to publishers for profit and the discriminatory nature of this classification, on its face, violates the equal protection guarantee, impinging speech protected by the First Amendment, Police Department of Chicago v. Mosley, 408 US 92, 95-96 (1972) (holding that "Once a forum is opened up to ... speaking by some groups, government may not prohibit others from ... speaking on the basis of what they intend to say."). The revised authority of nonprofit publications entirely eliminates for all practical purposes the legal significance of the issue of whether or not a periodical is published "for profit" as prescribed in Consumers Union [31]. n31. Consumers Union, 515 F.2d at 1343. The issue of whether this controversy is nonjusticiable requires the court in the first instance, to "interpret the text in question and determine whether and to what extent the issue is textually committed." Nixon v. United States, 506 US 224, 228 (1993). The lower courts have failed to make this interpretation. Instead, the District Court went on to interpret Consumers Union as "concluding that the Speech or Debate Clause rendered the Executive Committee’s actions immune from suit so long as the Committee was acting within the scope of its authority and in good faith. Id. at 1348" [32]. This interpretation, affirmed by the DC Circuit, treats the Rulemaking power of Congress and the Speech or Debate Clause issues as separable. The lower courts have simply disregarded the overthrow of former Rule 2 by Congress, which was the linchpin of Consumers Union. The decision should be reversed. n32. Memorandum Order, App. A10. The heightened burden of proof imposed by this conclusion, conflicts with Consumers Union and this Court’s decisions, as discussed infra pages 28-30. Nevertheless, the DC Circuit has explained in a prior case that, "the arrangements for seating of the press in House and Senate galleries," qualify decisions about whom to admit to congressional galleries as a legislative function entitled to legislative immunity [33]. Similarly, the 1st Circuit has concluded that, "As a rule, a legislature's regulation of the atmosphere in which it conducts its core legislative activities -- debating, voting, passing legislation, and the like -- is part and parcel of the legislative process, and, hence, not subject to a judicial veto [34]. These broad explanations and conclusions conflict with the "strict functional immunity analysis," of intervening decisions by the DC Circuit and this Court in Gross v. Winter, 876 F.2d 165, 170-173 (DC Cir. 1989), following Forrester v. White, 108 S.Ct. 538, 544 (1988) [35]. n33. Walker v. Jones, 733 F.2d 923, 929-930 (DC Cir. 1984)(explaining Consumers Union). n34. National Association of Social Workers v. Harwood, 69 F.3d 622, ... (1 Cir. 1995), following Consumers Union, at 1348-50, and Walker v. Jones, at 930. n35. Compare Consumers Union, 515 F.2d at 1350; and Walker v. Jones, 733 F.2d at 929; and Browning v. Clerk, US House of Representatives, 789 F.2d 923, 928 (DC Cir. 1986) (linking the duties of a reporter with legislative immunity); with Gross v. Winter, 876 F.2d 165, 170-173 (DC Cir. 1989) following Forrester v. White, 108 S.Ct. 538, 544 (1988) (rejecting the duties of a reporter as criteria for legislative immunity). The DC Circuit’s ruling in Browning v. Clerk, U.S. House of Representatives, 789 F.2d 923, 928 (DC Cir. 1986), is instructive in the instant case. Browning involved an Official Reporter of the U.S. House of Representatives, whose job duties and the atmosphere in which he worked, similar to those of the news reporter here, were deemed to be "’an integral part of the deliberative and communicative process [of Congress],’ Gavel, 408 US at 625, such that the activity is legislative in character." Browning, at 928-929. In Gross v. Winter, the DC Circuit reexamined its ruling in Browning and decided that the duties of the reporter and their essential relation to the due functioning of the legislative process were not valid criteria for qualifying legislative immunity. The "strict functional immunity analysis" in Forrester contrasts with the employee- centric approach the DC Circuit took in Browning, under- mining the holding in the latter, see Winter at 170-171. Moreover, the so-called "arrangements for seating of the press in House and Senate galleries," is an inadequate definition for immunity purposes requiring strict functional analysis. With limited exception, those "arrangements" do not now involve seating for reporters on the floor of the Senate and House [36]. n36. The practice of generally seating reporters on the floor of the U.S. Senate ended in 1888, and the same practice ended in the U.S. House in 1916, Consumers Union, 515 F.2d at 1343. Under current U.S. House Rule 34, section 2, "the Speaker may assign one seat on the floor to Associated Press reporters and one to United Press International ... And the Speaker may admit to the floor ... one additional representative of each press association." Unlike the situation in the US Congress, lobbyists presently have access to the floor of the Rhode Island House of Representatives, which is one reason why the 1st Circuit found that "the regulation of the atmosphere in which it conducts its core legislative activities ... is part and parcel of the legislative process." National Association of Social Workers v. Harwood, 69 F.3d 622. Those "arrangements" for the news media in the U.S. Congress now otherwise involve various distinct privileges, facilities, and accommodations including: access to press releases by members and other information of vital consequences to the public; dedicated press gallery offices, telephones, computer equipment, and closed circuit video of proceedings of U.S. Senate and House floor debates and committee hearings; special libraries; press tables provided for reporters during committee meetings open to the public; entrance to the President’s room and House Speakers’ Lobby, where reporters may seek or arrange interviews with members of Congress; admission to on-the-record daily press conferences held by the Senate leadership and the Speaker of the House; access to press conferences at the White House and administrative agencies. Each of such "arrangements" is subject to "strict functional immunity analysis" [37]. A trial of disputed facts and determination of the nature of the "arrangement" is required [38] to decide whether they are, "an integral part of the deliberative and communicative process of Congress," such that the activity is legislative in character [39]. n37. Gross v. Winter, 876 F.2d at 170-173, following Forrester v. White, 108 S.Ct. at 544. n38. Compare Scott-Harris v. City of Fall River, 134 F.3d 427, 440 (1 Cir. 1997), cert. denied, 118 S.Ct. 1184 (1998) (requiring trial of disputed facts), with Cornelius v. NAACP Legal Defense & Ed. Fund, 473 US 788, 800, 801 (1985); and Gregoire v. Centennial School Dist., 907 F.2d 1366, 1384 (3 Cir. 1990)(Stapeton, CJ, dissenting) ("public forum" analysis). n39. Cf. Consumers Union, 515 F.2d at 1350-1351. The judgments of the lower courts, which followed Consumers Union, made no "strict functional immunity analysis." Moreover, unlike the situation in Consumers Union, as described in Walker v. Jones, the "arrangements" involving Mr. Schreibman’s membership in the press galleries did not involve a "consideration of proposed legislation" [40]. Mr. Schreibman does not challenge the constitutional power of Congress to promulgate internal rules to assure that the periodical press galleries "will be used by bona fide reporters who will not abuse the privilege of accreditation by importuning Members on behalf of private interests or causes to which lobbying or advocacy groups are committed" [41]. Like the situation of an Official Reporter in Browning, in which immunity was questioned in Winter, the instant case is concerned only with administrative and adjudicative functions of the Executive Committee required to interpret Congressional rules pertaining to membership of a news reporter in the periodical press galleries [42]. n40. Walker v. Jones, 733 F.2d at 930. n41. Consumers Union, 515 F.2d at 1347, n.12. n42. See Hornsby v. Allen, 326 F.2d 605, 608 (5 Cir. 1964). In addition to the lack of any "strict functional immunity analysis," the judgment of the lower courts in this case also conflict with a line of Supreme Court cases, which "reflect a decidedly jaundiced view toward extending the [Speech or Debate] Clause" to shield legislative employees who implement legislative directions unconstitutionally [43]. This is particularly significant in a case where the claim, as here, is one for prospective relief and is asserted against defendants for their unconstitutional enforcement of legislative rules that affect individual rights [44]. n43. See Gavel v. United States, 408 US 606, 620 (1972); Powell v. McCormack, 395 US 486, 501-506 (1969). n44. Kilbourn v. Thompson, 103 US 168, 204 (1881); Dombrowski v. Eastland, 387 US 82, 85 (1967); Powell v. McCormack, 395 US at 504-506; and Supreme Court of Virginia v. Consumers Union, 446 US 719, 731-32 (1980); cases reviewed in National Association of Social Workers v. Harwood, 69 F.3d 622, 636, 638-643 (1 Cir. 1995) (Lynch, J., dissenting). For example, in his dissenting opinion in National Association of Social Workers v. Harwood, 69 F.3d 622, 636, 638-643 (1 Cir. 1995), Judge Lynch, offered this argument: (I)n Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719 (1980), the Supreme Court was presented with an action brought under 42 U.S.C. § 1983 asserting a First Amendment challenge against certain attorney disciplinary rules that had been enacted by the Virginia Supreme Court. The plaintiffs sought declaratory and injunctive relief, naming the Virginia Court and its Chief Justice (among others) as defendants. The Supreme Court concluded that the Virginia Court, in propounding the disciplinary rules, had acted in a legislative (not judicial) capacity. The Virginia Court was held entitled to absolute legislative immunity for acts pertaining to the enactment of the disciplinary rules, e.g., refusing to amend the rules to comport with the constitution. See id. at 733-34. The Supreme Court further observed, however, that the Virginia Court performed not only a legislative role with respect to the disciplinary rules, but also had enforcement authority. See id. at 734. The Court concluded that to the extent that the plaintiffs' section 1983 action sought prospective relief against the Virginia Court in its enforcement capacity, the doctrine of legislative immunity did not bar the suit. Id. at 736 ("[W]e believe that the Virginia Court and its chief justice properly were held liable in their enforcement capacities. . . . For this reason the Virginia Court and its members were proper defendants in a suit for declaratory and injunctive relief, just as other enforcement officers and agencies were."). Congressional Rulemaking power does not alter judicial responsibility "to say what rules Congress may not adopt because of constitutional infirmity" [45]. By the same authority the Court has responsibility to say what interpretations of the rules legislative agents "may not adopt because of constitutional infirmity" [46]. Moreover, the Court’s power "to enjoin unconstitutional acts by the government ... is inherent in the Constitution itself. see Marbury v. Madison, 5 US (1 Cranch) 137 (1803)" [47]. The decision of the lower courts disregarding the critical facts of the holding of Consumers Union, relied upon, and numerous conflicts with this Courts decisions require reversal. n45. Vander Jagt v. O’Neil, 699 F.2d 1166, 1173 (DC Cir. 1983). n46. Vander Jagt v. O’Neil, 699 F.2d at 1173. n47. Hubbard v. US EPA ADMIN, 809 F.2d 1, 11 n.15 (DC Cir. 1986); see Powell v. McCormack, 395 US at 506. B. Dismissal of the case with prejudice The district court dismissal of the complaint was a judgment with prejudice [48]. The order made no determination that "the allegation of other facts consistent with the challenged pleading could not possibly have cured the deficiency." This order was, therefore, erroneous [49]. n48. See authorities cited infra note 22. The court did not enter any judgment by "separate document" as required by FED.R.CIV.P. 58; however, notation of the Memorandum Order "granting motion to dismiss complaint [1-1][2-1] by federal defendants smissing [sic] case from the docket of this court" was recorded in the clerk’s docket, with notice, clearly evidencing the intention of the District Court "that the opinion and order from which an appeal was taken would represent the final decision in the case." Bankers Trust Co. v. Mallis, 435 US 381, 386-388 (1978). n49. Firestone v. Firestone, 76 F.3d 1205, 1208-1209 (DC Cir. 1996), following Conley v. Gibson, 355 US 41, 45-46 (1957). Moreover, construing Mr. Schreibman’s Rule 59(e) motion [50], within the context of the law clearly establishing that "such an order constitutes a dismissal of the action with prejudice" [51], the motion fairly established that the subject order "was erroneous." n50. Plaintiff’s motion to alter or amend order dismissing the case [USDC document 13-2; App. C1]. Mr. Schreibman moved the court, "to alter or amend the order dismissing the case ... on the grounds that dismissal of the case, to extent that such order constitutes a dismissal of the action with prejudice and without the opportunity for plaintiff to amend the complaint, was erroneous. The Circuit Court for the District of Columbia has determined that a dismissal with prejudice 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." Firestone v. Firestone, 76 F.3d 1205, 1208-1209 (DC Cir. 1996). No such determination was made in the instant case nor could such a determination be made." n51. See authorities cited infra note 22. In near total disregard for instructions of this Court under FED.R.CIV.P. 8(f) that, "All pleadings shall be so construed as to do substantial justice" [52] the District Court affirmed by the DC Circuit, found that the motion, "has failed to establish an error of law ... in the court’s memorandum opinion" [53]. That unfavorable interpretation is contrary to this Court’s instructions [54]. Mr. Schreibman’s Rule 15(a) motion for leave to amend the complaint was also stricken by the court [55]. Without any valid reason, this was erroneous [56]. Reversal is required of the two Memorandum Orders, affirmed by the DC Circuit:(a) dismissing the case and (b) denying reconsideration. Both were appealed [57]. n52. Conley v. Gibson, 355 US at 45-46; Forman v. Davis, 371 US 178, 182 (1962)(rejecting avoidance of decision on the merits on the basis of mere technicalities). n53. Memorandum Order [USDC document 16-1; App. A15]. n54. See authorities cited infra note 52. n55. Memorandum Order denying reconsideration [USDC document 16-1; App. A14, n.1]. n56. Forman v. Davis, 371 US at 182, followed in Firestone v. Firestone, 76 F.3d at 1208-1209. n57. Notice of appeal filed 4/17/98 [USDC document 18-1], App. C18. C. The complaint states a viable cause of action. In carrying out their administrative and adjudicative functions with regard to Mr. Schreibman’s application for membership in the Periodical Press Galleries, the Executive Committee must, in the first instance, recognize his personal right to protection of the First Amendment [58]. This right is conferred not by legislative grace or by discretion of the Executive Committee holding delegated powers, but "by constitutional guarantee" [59]. n58. Cornelius v. NAACP Legal Defense & ED. Fund, 473 US at 797. n59. Cleveland Bd. of Education v. Loudermill, 470 US 532, 543 (1985). Mr. Schreibman was recognized three years running as a bona fide Washington reporter by the Executive Committee. A large archive of his news columns, special reports and occasional papers are posted at his website, which have been widely disseminated via Internet. His work is recognized by other journalists [60], and many or his news columns and occasional papers have been republished both in print and electronic formats by other recognized publishers [61]. He is entitled to the protection of the First Amendment [62], particularly as an Internet-based writer [63]. n60. See e.g., Letter to John W. Warner, Chair, Senate Committee on Rules and Administration, and others, from James Fallows, former editor US News & World Report (May 3, 1996), online: ; Email message to Government Documents discussion list from James McDonough, EPIN Editor (29 Feb 1996), online: ; Email to FINS from Baltimore Chronicle (5 Feb 1996), online: ; Email message to FINS from Jerry M. Landy, emeritus professor of media literacy, University of Illinois (2 Feb 1996), online: n61. See e.g., "A New Era of 'People-Power Politics': Addressing the Challenges of Democratic Sustainability and Civic Infrastructure,: in print, Counterpoise, Vol 2, No. 4 (Oct 1998), online: ; "KNOWLEDGE ORGANIZATION FOR THE BETTERMENT OF HUMANKIND"(April 1997), in Int’l Federation of Library Associations, Universal Dataflow and Telecommunications Core Programme (IFLA UDT Occasional Paper #6) online: ; "The Substance of Power" in print, Systems: Journal of Transdisciplinary Systems Science, Polish Systems Society, Vol 2, No. 1 (1997), online: ; "Immaturity in Governance," (February 26, 1996), in Journalism Resources, University of Iowa, online: ; "Total Control," (February 19, 1996), in Journalism Resources, University of Iowa, online: ; "The Coming Cyberspace Society" (April 10, 1995), in Horizon Site, Jossey-Bass Publishers, online: ; "The Politics of Cyberspace," in print, the Journal of Government Information, Vol. 21, Issue 3, pp. 249-280 (May/June 1994), online: ; "THE CAPITAL AND CAPITOL HILL: Propagating a counter-culture of madness" in print, Washington's HILL RAG, (Sept 17, 1993), online: n62. Sherrill v. Knight, 569 F.2d 124, 129, n.19 (DC Cir. 1977) (press pass to House and Senate Galleries relied upon as qualification for White House press pass); Liberty Lobby, Inc. v. Rees, 111 FRD 19, 20-21 (D DC 1986) (party qualified to be treated as "journalist" for First Amendment purposes where he had published and distributed newsletter for many years and was recognized as journalist by others); Cf. Haggerty v. Bloomington, 11 Med. L. Rep., 1605, 1606 (Ind. Ct. App. 1985)(bona fide members of the press determined by previous issuance of press pass). n63. RENO v. American Civil Liberties Union, 117 S.Ct. 2329, 2344 (1997). The District Court side stepped this critical issue, disregarding Mr. Schreibman’s fundamental personal right, and instead, observed that, "The Committee, however, accredited Mr. Schreibman for a different publication" [64]. n64. Memorandum Order, App. A10, n.9. The District Court also observed, "Moreover, Mr. Schreibman chose not to seek a renewal of that accreditation." Renewal of FINS accreditation through EPIN was not a viable option, as explained infra note 11. Freedom of the press is threatened when the process of accreditation of reporters for access to the press galleries is afflicted by a chronic pattern of discriminatory conduct and abuse. The setting for adjudication of press passes by a self-regulated group of established reporters has disclosed a long pattern of events of special concern: the historical record of Washington reporters who use emerging technology "as an excuse to exclude competitors" [65]; judicial findings of actions by established periodical correspondents to exclude publications whose ownership or ideas they consider objectionable [66]; and expert opinion on the impact of the new dimension of the Internet medium involving "fundamental changes being wrought by the advent of many-to-many media directly threatening the current media aristocracies and the status quo in much the ways that the advent of democracy did to the aristocracies of two centuries ago" [67]. n65. See authorities infra note 4. n66. Consumers Union, 365 F.Supp. at 26. n67. V. Crosbie, infra note 4. That setting of discriminatory conduct and abuse has led to the following events specifically related to Internet-based reporters, Mr. Schreibman, the periodical FINS, and this case: (A) The appearance of institutional bias manifest by the fact that access to the periodical press galleries has remained closed to all but the established media groups; only three Internet-based publishers have been granted membership: Slate ; APB News ; and Salon [68]. n68. Email message from Michael J. Ravnitzky, APB NEWS, to FINS (October 12, 1999), based on information from periodical press gallery officials. (B) The appearance of institution bias, manifest by the personal attack on Mr. Schreibman during discussion on the "online news list" some months prior to his application for accreditation, in August 1995. The personal attack on Mr. Schreibman was an attempt to censor his ideas and proposal to advance a discussion about the future of news reporting in the Internet medium. Mr. Schreibman may be able to show through subsequent discovery that one or more members of the media responsible for this attack, in cooperation with one or more members of the Executive Committee, sought the denial of his press credentials. (C) Actual bias of the Executive Committee manifest by the attacks on Mr. Schreibman by Mr. Cohen and Mr. Maze, and by the Committee policy repudiating both the relevance of Free Press provisions to the Congressional Press Galleries or the right of Mr. Schreibman to any such protection of the First Amendment [69]. This policy is not authorized by the Press Gallery Rules that comprise the Executive Committee’s charter. Such conduct impinges upon Mr. Schreibman’s First Amendment rights [70], his right under the due process clause of the Fifth Amendment to an unbiased adjudication of his application, free from prejudgment of law or facts [71]. n69. See Vigdor Schreibman, "Political ‘Cleansing’ of the Press--in Congress," email message sent to Telecommunications Roundtable (5 Feb 1996), online: n70. Watkins v. United States, 354 US 178, 198 (1957). n71. Cinderella Career and Finishing Schools, Inc. v. F.T.C., 425 F.2d 583, 591 (DC Cir. 1970). (D) Denial of Mr. Schreibman’s accreditation by the Committee without any specific reasons (App. A17, A18), thereby, violating Mr. Schreibman’s right to due process under the Fifth Amendment to the Constitution [72], impinging his personal right to protection of the First Amendment [73]. n72. Consumers Union, 365 F.Supp. at 26-27; Sherrill v. Knight, 569 F.2d at 130-131. n73. Sherrill, 569 F.2d at 129-130. The lower courts have disregarded these allegations by a three-fold attack that violates this Court’s decisions: first, by refusing to recognize Mr. Schreibman’s proposed amended complaint [74], or the arguments submitted in support thereof on appeal [75]; second, by interpreting the allegations made by Mr. Schreibman, disfavorably, to the extent they were considered [76]; n74. See discussion infra pp. 21-23, and accompanying notes 48-57. n75. Plaintiff has the right to "allege without evidentiary support any facts he pleases that are consistent with the complaint that if proven ... would entitle him to judgment." Early v. Bankers Life and Cas. Co., 959 F.2d 75, 79 (7 Cir. 1992), citing Conley v. Gibson, 355 US 41, 45 (1957). n76. See authorities cited infra note 52. At oral argument Judge Silberman rejected as "legal analysis" allegations that defendants had repudiated, as governing policy of the Press Galleries, both the relevance of any Free Press provisions to the Press Galleries and the right of Mr. Schreibman to any such protections. and third, by imposing a heightened barrier and burden of proof on claims that challenge illegal or unconstitutional conduct of the Executive Committee. The District Court’s interpretation of Consumers Union would hold the Executive Committee actions immune from suit "so long as the Committee was acting within the scope of its authority and in good faith. Id. at 1348" [77]. The DC Circuit panel decision affirmed this decision, and found that plaintiff had failed to articulate "what the bias or animus is that constitutes the claimed ‘bad faith.’" Ironically, the DC Circuit recognized that "To be sure, there is no heightened pleading standard for bad faith" [78]. n77. Memorandum Order, App. A10. n78. DC Circuit Judgment, App. A2. Nevertheless, the lower courts have clearly imposed a heightened burden. Consumers Union recognized an exception to any immunity holding, for "claimed bad faith _or illegal conduct_" [79]. (accent added). Decisions of the lower courts must be consistent with this Court’s decisions that, "[Congress] may not by its rules ignore constitutional restraints or violate fundamental rights" [80]. n79. Consumers Union, 515 F.2d at 1348. n80. United States v. Ballin, 144 US 1, 5 (1892), cited in Consumers Union, at 1348; United States v. Rumely, 345 US 41 (1953); Watkins v. United States, 354 US 178, 196-198 (1957). The attempt to impose a heightened barrier authorizing immunity "so long as the Committee was acting within the scope of its authority and in good faith," would override the constitutional limit on actions of the Executive Committee. This Court has also ruled that changes by a court of appeals or this Court in the burden of proof for an entire category of claims, "would stray far from the traditional limits of judicial authority" [81]. n81. See Crawford v. Britton, 118 S.Ct. 1584, 1594-1595 (1998). None of those attempts by the lower courts to disregard or defeat Mr. Schreibman’s complaint can withstand the tests of this Courts decisions. They must be reversed. Congress has designated by its Press Gallery Rules that press gallery facilities, which provide time sensitive access to information of vital consequence to the public and significant competitive advantage to members, shall be generally open as a source of information to bona fide Washington-based newsmen and newswomen. Within this forum U.S. District Court Judge Gasell recognized in a case opinion (reversed on other grounds) that, "The Courts have a responsibility to preserve the freedom of the press by barring the imposition of limitations upon the equal access of newsmen to facts of public consequence" [82]. n82. Consumers Union, 365 F.Supp. at 25; accord Sherrill, 569 F.2d at 129-130. Equal access to the press galleries is subject to government regulation of the time, place, and manner of the expressive activity to accommodate other legislative uses of press gallery facilities and the "interests of all" members of the designated class who have an equal right to speak on the property [83]. Of particular significance in this case, the U.S. Senate explicitly recognized this constitutional standard in Senate Standing Rule XXXIII, in which it required that regulation of reporters’ galleries and facilities, "shall provide for the use of such space and facilities as fairly to distribute their use to all such media of news dissemination" [84]. n83. Cornelius, 473 US at 817-818 (Blackmun, J. dissenting). n84. Senate Manual, Rule XXXIII, § 2, cl. 2-3; App. B1. This Court has cautioned that laws that single out the press, or certain elements thereof, for special treatment, "pose a particular danger of abuse by the state" [85]. The current policy of granting access to the Congressional press galleries to some publishers and reporters but not for others, "raise[s] the specter of content and viewpoint censorship" [86]. The danger of abuse is underscored when gallery standards and their application are ambiguous and indefinite, and not consistently applied. n85. Turner Broadcasting System, Inc. v. F.C.C., 512 US 622, 640-642 (1994). n86. Lakewood v. Plain Dealer Publishing Co., 486 US 750, 763-764 (1988). The denial of Mr. Schreibman’s accreditation was without specific reasons by the Executive Committee, App. C17, C18. However, the District Court noted the allegations of defendants’ attorney, Mr. Michael Stern: "The Executive Committee concluded that Mr. Schreibman did not meet the requirements of [the gallery] rules, among other reasons, because FINS was not published for profit, that Mr. Schreibman does not receive a salary from FINS, and that Mr. Schreibman is not a full time journalist" [87]. n87. Memorandum Order, App. A6, n.5. Current gallery rules do not require periodicals to employ full time journalists. Gallery officials "relaxed that rule completely" says Mr. Roy L. McGhee, former Superintendent of the Senate Periodical Press Gallery, when it became obvious that periodical publishers could not afford to hire full time journalists [88]. It is self-evident, however, from the large volume of Mr. Schreibman’s works posted at his website that he is a full time journalist. n88. See transcript of interview of Roy L. McGhee, Superintendent of the Senate Periodical Press Gallery (1973-1991), in Senate Historical Office, Oral History Interviews (Jan 16-28, 1992): p. 154. It is true that Mr. Schreibman does not receive a salary from FINS, but there is nothing in the gallery rules that require him to be paid a salary. Moreover, voluntary service is the norm for fully half the employees of nonprofit organizations, which are America’s biggest employer, involving some "90 million people all told." See P.F. Drucker, Post-Capitalist Society ch 2, The Society of Organizations (1993). FINS intended to publish "for profit" and voluntary paid subscriptions were solicited in each issue, but neither publication "for profit" nor "profitability" is required by the gallery rules. FINS is primarily dedicated to "Communicating the emerging philosophy of the ‘Information Age’" and "profitability" is not the primary motivation for news published via Internet. Most news publications in this medium, including FINS, are disseminated "free of charge." This includes, for example, The New York Times, The Washington Post, and Slate magazine an Internet-based periodical published by Microsoft, which was granted credentials by the Executive Committee despite the lack of profitability [89]. In an article published by MNS Slate, "Slate Goes Free" (Feb 13, 1999), the editors reluctantly conceded, "Everybody said you can’t charge for content on the Internet. Information wants to be free!" n89. Lindsay Sobel, "Slate gets credentials," The Hill Newspaper, April 23, 1997, at 7, quoting David Holmes, Superintendent of the House Periodical Press Gallery, and Rick Maze, Secretary-Treasurer of the Executive Committee of Correspondents. FINS operated as a de facto nonprofit organization, just as Slate and many others. This is authorized by the revised Periodical Press Gallery Rule 2. Mr. Schreibman did business as Federal Information News Syndicate (FINS). This fact is confirmed by: the masthead of the periodical; the website owned by FINS, which is now hosted by the University of Tennessee, Knoxville; copyright notices for FINS News Columns; and a bank account in the name of FINS. In the context of the rules governing this case, use of the term publishing "for profit" to classify a publisher is overly ambiguous; indeed, publishing "for profit" is "by no means restricted to private for-profit organizations. It can be and has been used effectively in the public sector and in not-for-profit organizations" according to Russell L. Ackoff, emeritus professor of management at the Wharton School at the University of Pennsylvania [90]. Similarly, Gallery Rule 2, which provides Executive Committee members with discretion to approve a "bona fide ... correspondent" is also an overly broad delegation of authority that conflicts with freedom of the press, which is conferred not by legislative grace but "by constitutional guarantee" [91]. n90. Russell L. Ackoff, Re-Creating Corporation: A Design of Organizations for the 21st Century (Oxford University Press, 1999): p. 218. n91. Cleveland Bd. of Education v. Loudermill, 470 US at 543. In addition, the current gallery policy of demanding annual renewal of accreditation, which is not required by any official gallery rule is, "sufficiently threatening to invite judicial concern," because it exposes reporters to measurement of the probable content or viewpoint of speech they have uttered [92]. n92. Lakewood v. Plain Dealer Publishing Co., 486 US at 759-760. The acts of gallery officials to exclude Mr. Schreibman from the press galleries, which are generally open for use by reporters, while reserving the right to control access of the press by a biased process, repudiation of constitutional protections, and ambiguous and indefinite standards that are inconsistently applied must be subject to strict scrutiny [93]. n93. Gregoire v. Centennial School Dist., 907 F.2d at 1375; Perry ED Assn v. Perry Local Educators’ Assn., 460 US 37, 48 (1983); Cornelius, 473 US at 823-824 (Blackmun, J. dissenting).