Legi-Tech, Inc. v. Keiper
| Decision Date | 05 July 1985 |
| Docket Number | INC,D,LEGI-TEC,No. 865,865 |
| Parties | , 11 Media L. Rep. 2482 , Plaintiff-Appellant, v. David W. KEIPER, Commissioner of the Legislative Bill Drafting Commission of the State of New York, John J. Faso, Commissioner of the Legislative Bill Drafting Commission of the State of New York, Warren Anderson, Temporary President of the Senate of the State of New York, Stanley Fink, Speaker of the Assembly of the State of New York, and Mario Cuomo, as Governor of the State of New York, Defendants-Appellees. ocket 84-9021. |
| Court | U.S. Court of Appeals — Second Circuit |
Bruce D. Sokler, Washington, D.C. (Thomas J. Casey, Terrence J. Leahy, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Washington, D.C., of counsel), for plaintiff-appellant.
Harvey M. Berman, New York City , for defendants-appellees.
Before VAN GRAAFEILAND, WINTER and PRATT, Circuit Judges.
This is an appeal from Judge Miner's denial of a preliminary injunction. The appellant, Legi-Tech, Inc., seeks to enjoin the defendants, officials of New York State, from denying it access to a state-owned computerized database that contains legislative information and is available through subscription to the general public. Legi-Tech's complaint, brought under 42 U.S.C. Sec. 1983 (1982), alleges an infringement of its rights under the First and Fourteenth Amendments. We conclude that the First Amendment may, under some circumstances, prohibit the state from denying Legi-Tech, an organ of the press, access to the database. However, the record on this appeal
does not afford us sufficient information to resolve certain key factual issues. We therefore remand for further proceedings.
Legi-Tech is a California corporation that markets a computerized information retrieval service known as the "Legi-Tech System." This service offers to subscribers computerized legislative information concerning the New York and California legislatures. The information provided includes summaries of pending legislation, votes on bills, attendance and voting records of individual legislators, and campaign contributions to individual legislators. Legi-Tech's customers include lobbyists, news media, corporations, and governmental agencies.
Since 1984, the Legislative Bill Drafting Commission of the State of New York (the "Commission") has offered to the public a "Legislative Retrieval Service" known as LRS. Like the Legi-Tech System, LRS is a computerized database. LRS contains the full text of legislation pending in the New York Legislature, as well as summaries thereof and certain other information. It appears that the primary difference between the two services is that LRS offers the full text of New York bills, while Legi-Tech offers only summaries. Unlike Legi-Tech, LRS does not offer information about the voting and attendance records of, and campaign contributions to, individual legislators. LRS is limited to New York legislation, while Legi-Tech covers California as well.
Legi-Tech unsuccessfully attempted to subscribe to LRS when the latter was in its pilot stage, and again after it became available to the general public. On June 1, 1984, Legi-Tech brought a state court action for an injunction requiring the Commission to offer LRS to Legi-Tech on the same terms as offered to other customers. In response, New York enacted Chapter 257 of the New York Laws, the provision which is in issue in the instant case. It has not yet been officially codified.
Chapter 257 establishes a "Legislative Computer Services Fund" consisting of revenues derived from the sale of LRS or other data processing services or publications. It also provides that:
Notwithstanding any provision of law to the contrary, the legislature is hereby authorized to engage in the sale of any of the foregoing services, programs or materials to such entities as the temporary president of the senate and speaker of the assembly, in their joint discretion, deem appropriate, except those entities which offer for sale the services of an electronic information retrieval system which contains data relating to the proceedings of the legislature.
Legi-Tech is clearly within the prohibitory portion of the statute, and the Commission dutifully denied Legi-Tech a subscription to LRS. Legi-Tech then filed the complaint in the instant case. It charges, inter alia, that Chapter 257 is unconstitutional on its face and as applied, in that it denies Legi-Tech and others freedom of speech and of the press, the only claims pressed on this appeal. The complaint seeks a declaration that Chapter 257 is unconstitutional, preliminary and permanent injunctions, and damages.
The district court rejected Legi-Tech's claim on the grounds that Chapter 257 does not deprive Legi-Tech of access to legislative information or restrict its ability to publish such information. It perceived the issue as analogous to claims of right to televise or tape courtroom trials, which have been recently rejected by this court. Legi-Tech, Inc. v. Keiper, 601 F.Supp. 371, 375 (N.D.N.Y.1984), citing Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16 (2d Cir.1984); United States v. Yonkers Board of Education, 747 F.2d 111 (2d Cir.1984). It viewed Legi-Tech as merely claiming a right to greater convenience in gathering legislative materials otherwise available, 601 F.Supp. at 375, and in effect as attempting to free ride on New York's financial support for the services provided by LRS. The district court concluded that Chapter 257 "is reasonable We do not agree with the district court's legal theories for the reasons stated infra. However, because our own view of the law requires the development of certain factual matters, we remand for further findings.
since it only seeks to protect the state's natural monopoly on computer supplied legislative information. Indeed, were the state not able to restrict access to LRS, competitors could easily retransmit the state's data at lower prices and thereby eliminate LRS entirely." Id. at 381
This case arises out of advances in a developing technology and is governed neither by direct precedent nor by close analogue. It is important at the outset, therefore, to define with some care the relationship of the relief Legi-Tech seeks to the First Amendment's protection of freedom of speech and of the press.
The district court was, we believe, only partially correct in regarding Chapter 257 as limited to the regulation of access to information in a particular format. Because the sole reason for denying Legi-Tech access to LRS is Legi-Tech's ability and desire to republish it, the right of publication is also implicated. The effect on publication, moreover, may be more than trivial. For example, Chapter 257 may prevent Legi-Tech from publishing in a timely fashion the full text of pending bills in New York in a package with relevant political information such as voting records and campaign contributions.
We further note that information about legislative proceedings, and in particular, pending legislation, is absolutely vital to the functioning of government and to the exercise of political speech, which is at the core of the First Amendment. See Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976) (per curiam); Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971); Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966).
Finally, we note that we are dealing in an area of rapidly developing technology and with novel and expanding forms of the exercise of the freedom of the press guaranteed by the First Amendment. Legi-Tech is currently the only entity that has been denied a subscription to LRS, but there is no reason to believe that this will long remain true. Legi-Tech and LRS use technology that is particularly well-suited to transmitting large amounts of rapidly-changing information. The ultimate sweep of Chapter 257 thus depends upon the development of that technology and of the commercial uses to which it may be put.
It is even now technologically possible to offer an "electronic newspaper" to subscribers who own personal computers. Such a service might transmit news items just as other services transmit stock market quotations or other information. If such a service included legislative information among its news items, it would fall within Chapter 257. On a more familiar level, a claim that the major wire services constitute "electronic information retrieval system[s]" that sometimes provide "data relating to ... the legislature" seems a colorable reading of the statute. It also seems obvious that Mead Data Corporation's "LEXIS/NEXIS" service and West Publishing Corporation's "WESTLAW" service, both familiar to most lawyers, do meet the statutory definition.
We take note of these matters, not because we intend to explore the application of Chapter 257 to such entities, but in recognition of the constitutional sensitivity of the issues raised by Legi-Tech's two-pronged challenge to Chapter 257. It claims that Chapter 257: (1) unconstitutionally discriminates between a state-owned member of the press, LRS, and other press organs by granting the former preferential access to pending legislation; and (2) unconstitutionally denies Legi-Tech equal access to LRS. We discuss these claims seriatim.
Legi-Tech claims that Chapter 257 is unconstitutional because it, Legi-Tech, does Because the procedural posture of this case limits us to a record containing only conflicting affidavits, we are unable to determine with precision the respective times at which and methods by which Legi-Tech and LRS receive...
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