author: MINER, District Judge.

text:
    LEGI-TECH, INC., Plaintiff, v. David W. KEIPER and John J. Faso, as Commissioners of the Legislative Bill Drafting Commission of the State of New York; Warren Anderson, as Temporary President of the Senate of the State of New York; Stanley Fink, as Speaker of the Assembly of the State of New York; and Mario Cuomo, as Governor of the State of New York, Defendants.
    No. 84-CV-1256.
    United States District Court, N.D. New York.
    Dec. 4, 1984.

      Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Washington, D.C., Pattison, Sampson, Ginsberg & Griffin, P.C., Troy, N.Y., for plaintiff; Terrence J. Leahy, Washington, D.C., Jeffrey R. Armstrong, Troy, N.Y., of counsel.
    Robert Abrams, Atty. Gen. of the State of New York, Albany, N.Y., for defendants; Alan S. Kaufman, Asst. Atty. Gen., Albany, N.Y., of counsel.
   MEMORANDUM-DECISION AND ORDER

MINER, District Judge.

I

This action arises out of alleged multiple constitutional violations stemming from defendants’ recent introduction of a “Legislative Retrieval Service” (“LRS”) and plaintiff’s exclusion from access thereto. The action is brought pursuant to 42 U.S.C. § 1983 and jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1343. Before the Court is plaintiff’s motion for a preliminary injunction, Fed.R.Civ.P. 65. The following represents the Court’s findings of fact and conclusions of law as required by Fed.R. Civ.P. 52(a).

II

Plaintiff Legi-Tech is a California corporation offering to the public a news service known as the “Legi-Tech System,” which disseminates to subscribers by electronic means a variety of information regarding state legislative activity. The system offers summaries of legislation, transmits the recorded votes on each bill, provides the attendance record of each state legislator, and indicates the amount of contributions given by lobbyists to particular legislators. Legi-Tech provides computer terminals to subscribers to enable them to receive the service. Some of Legi-Tech’s customers include news media, lobbyists, major corporations, and state and local agencies. Traditionally, in order to prepare its news data for distribution to its subscribers, Legi-Tech has obtained the printed version of each legislative bill and the summary memorandum prepared by the legislator who sponsored the bill. It accumulates additional information by having its staff monitor the proceedings of the legislature in person.

In January of 1984, the Legislative Bill Drafting Commission of the State of New York (“Commission”) instituted a pilot project to determine the feasibility of its LRS system for the transmission of legislative information to computers located on subscribers’ premises. According to plaintiff, LRS is the only available method of obtaining the text of New York bills on the same day they are introduced. Moreover, plaintiff contends that during the period between the time a bill is introduced and the legislature makes available a printed copy of the complete text, LRS is the exclusive source of the exact text of pending legislation. The lag-time before printing is alleged to range from two days to two weeks, during which period only LRS subscribers are capable of learning the text of legislative proposals.

Seeing the potential for enhancement of Legi-Tech’s services, its president wrote to defendants David W. Keiper and John J. Faso, members of the Commission, requesting access to LRS. On February 22, 1984, Keiper and Faso responded that they were “not accepting any new applicants to [the] pilot project at this time” because the “customer population has exceeded the amount designated for this stage of the project.” Complaint, ¶ 17. In March, Legi-Tech again sought access to LRS but to no avail. The service was made available to the public on April 1, 1984, and Legi-Tech continued to seek access. Those efforts culminated in an Article 78 petition filed in New York State Supreme Court on June 1, 1984, seeking an order requiring the Commission to offer LRS to Legi-Tech in the same manner and on the same terms as offered to other subscribers.

On June 7, 1984, legislation was introduced in the New York State Legislature establishing a fund to consist of revenues derived from, inter alia, the sale of electronic legislative information services. The bill, known as “Chapter 257,” was signed into law on June 25, 1984. Chapter 257 establishes a “Legislative Computer Services Fund” consisting of revenues received by the legislature from the sale of electronic data processing services or charges for publications of statutes. Central to the present litigation is the bill’s additional provision 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.

(emphasis added).

According to its complaint, Legi-Tech is the only entity other than LRS that offers to the public an information retrieval service that provides summaries of pending New York bills. Moreover, plaintiff claims that it is the only entity to which the Commission has refused to provide access to LRS, even though it is willing and able to pay the service’s fees. The gravamen of plaintiff’s complaint is that the statutory exception in Chapter 257 was enacted for the specific purposes of legitimizing defendants’ refusal to offer LRS service to Legi-Tech, enhancing the competitive position of LRS vis-a-vis Legi-Tech, and impairing the ability of Legi-Tech to offer a competing legislative information service. In particular, plaintiff challenges the facial and as-applied constitutional validity of Chapter 257, and raises a host of constitutional challenges to defendants’ actions, viz., (1) that defendants’ actions deny plaintiff and others freedom of speech and freedom of the press, in violation of the first and fourteenth amendments; (2) that defendants have denied plaintiff equal protection in violation of the fourteenth amendment; (3) that defendants have denied plaintiff its right to due process; and (4) that Chapter 257 is a bill of attainder violating art. I, § 10, cl. 1 of the United States Constitution. In the nature of relief, plaintiff seeks a declaration of the invalidity of Chapter 257, preliminary and permanent injunctions, and actual and punitive damages.

Ill

The standard for preliminary injunctive relief in this circuit requires that the moving party demonstrate “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly ...” in its favor. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam); see also Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.1983). A review of the claims raised here convinces this Court that plaintiff has failed to demonstrate its entitlement to the extraordinary remedy it seeks.

A. Irreparable Harm

According to plaintiff, “[e]ach day that [it] is denied access to LRS, it suffers incalculable injury to its constitutional rights of communication and freedom of expression.” Plaintiffs Memorandum of Law in Support of Application for Preliminary Injunction at 42-43. There can of course be no question that a denial of first amendment rights constitutes irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (1976). Defendants do not, nor could they, dispute this proposition, other than to argue that reliance on a theory of first amendment deprivation as a predicate for a showing of irreparable harm only begs the question, since plaintiff has not established any first amendment injury. Suffice it to note that if plaintiff could establish a first amendment violation, it would be able to satisfy both prongs of the preliminary injunction standard. Because this Court con-eludes, however, that there remain, at the very least, serious questions concerning the existence of any first amendment deprivations, and because those questions must be answered prior to a determination that plaintiff has established the requisite irreparable harm, consideration must be directed to the second prong of the preliminary injunction showing.

B. Likelihood of Success on the Merits

Plaintiff launches a sweeping attack on the constitutional validity of its exclusion from LRS. While the Court joins in plaintiff’s deep and commendable concern for the protection of fundamental first amendment values, plaintiff’s generous reading of first amendment jurisprudence requires an indulgence to which this Court cannot subscribe. In short, plaintiff’s ardent plea for access suggests only a most attenuated claim under the first amendment.

According to plaintiff, this is a case about access to information. At the outset, then, it is important to note that the first amendment does not guarantee access by the general public or the media to government property or information. The Supreme Court “has never intimated a First Amendment guarantee of a right of access to all sources of information within government control.” Houchins v. KQED, Inc., 438 U.S. 1, 9, 98 S.Ct. 2588, 2593-94, 57 L.Ed.2d 553 (1978). While “[t]here is an undoubted right to gather news ‘from any source by means within the law,’ ... that affords no basis for the claim that the First Amendment compels others — private persons or governments — to supply information.” Id. at 11, 98 S.Ct. at 2594-95 (quoting Branzburg v. Hayes, 408 U.S. 665, 681-82, 92 S.Ct. 2646, 2656-57, 33 L.Ed.2d 626 (1972)). Moreover, “[t]he right to speak and publish does not carry with it the unrestrained right to gather information.” Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965).

The recent analysis of “access jurisprudence” undertaken by the Second Circuit in In re Application of The Herald Co., 734 F.2d 93 (2d Cir.1984), is instructive. After an exhaustive discussion of the four significant Supreme Court cases, Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the court recognized “a difference between a right of access and a right of. expression.” 734 F.2d at 100. The court continued:

Without doubting the relevance of the former to the latter, we find nothing in the terms or tradition of the First Amendment that would accord as stringent protection to access as to speech. The freedom to speak is at the core of the First Amendment. Impairment of that right threatens the most fundamental of constitutional values. Abridgement of free speech not only silences one speaker, it also inhibits others from exercising their rights of expression. Denial of access, however, though preventing discussion of the withheld information, exerts no chilling effect upon free discussion generally. If anything, denial of access spurs efforts to elicit information, sometimes heightening awareness of and interest in the very topic on which details have been withheld.
To claim a value in access to information, even information concerning significant governmental activities, comparable to the value of freedom of expression, is to ignore 200 years of First Amendment jurisprudence____ The recognition of some form of First Amendment access right in Richmond Newspapers [448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973] was recognized as a “watershed” decision. We see no indication in that decision or the subsequent cases that a majority of the Supreme Court is prepared to accord to this newly minted right the same degree of protection historically accorded to free expression.

Id.

There can be no question that here, plaintiff is not even being denied access to information; rather, it is merely being required to gather the information it seeks in a manner which it finds to be less convenient. Plaintiff continues to be able to gather the legislative materials it desires, see affidavit of John J. Faso, 1111, and to disseminate them as it sees fit. The Court finds absolutely no significance in the fact that Legi-Tech must obtain the information it seeks by a means other than LRS. First, “the information plaintiff seeks ... is readily available if plaintiff expends the time and energy to collect that information____.” Herald Company v. McNeal, 511 F.Supp. 269, 273 (E.D.Mo.1981) (three-judge court). Second, there cannot be found to exist any special privilege entitling plaintiff or the public to such particularized access. Support for this conclusion is drawn from the Second Circuit’s recent decisions upholding, in the face of constitutional attacks, courtroom restrictions barring television cameras and other recording devices. See 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). Acknowledging a right of access by the public to even civil trials,' Judge Oakes, speaking for the Westmoreland panel, nonetheless rejected the existence of a right to a particular type of access. In response to the argument that access without television could not be completely effective because all those desirous of attending might not be accommodated and because reading about the trial through newspaper accounts or the transcript itself necessitated delay, thereby relegating the public to “ ‘qualitatively inferior, stale and wooden interpretations of what occurred,’ ” at 23, Judge Oakes noted:

There is a long leap, however, between a public right under the First Amendment to attend trials and a public right under the First Amendment to see a given trial televised. It is a leap that is not supported by history. It is a leap that we áre not yet prepared to take.

Id. Because plaintiff is able to obtain and distribute the information it seeks, it is difficult for this Court to fathom any first amendment violation.

Plaintiff raises a number of arguments in support of its first amendment claims, none of which this Court finds persuasive. First, plaintiff contends that the Constitution prohibits New York from subjecting it to regulatory burdens that are not shared by the citizenry as a whole. Plaintiff’s reliance on Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983), and Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936), is grossly misplaced. First,' unlike the statutes at issue in those cases, Chapter 257 is not in any sense a regulatory or tax statute. More importantly, however, those cases “dealt only with government attempts to burden and restrain a newspaper’s communication with the public. The reference [in Grosjean ] to a public entitlement to information meant no more than that the government cannot restrain communication of whatever information the media acquire — and which they elect to reveal.” Houchins v. KQED, Inc., 438 U.S. at 10, 98 S.Ct. at 2594. The challenged statute here in no way deprives plaintiff of access to any information. Nor does it restrict plaintiff’s ability to publish any information it desires. The Court rejects plaintiff’s contention that defendants have deprived Legi-Tech of constitutionally guaranteed access to legislative information. As defendants have noted, “plaintiff is not being denied ‘access to information on legislative proceedings’ [but] is simply being denied the information in a form that could easily be redistributed and put LRS out of business. Plaintiff could obtain the same information through other sources which, prior to this suit, it did not choose to do.” Memorandum of Law in Opposition to Plaintiff’s Motion for a Preliminary Injunction at 34.

Anticipating defendants’ argument that “Legi-Tech’s ability to obtain and disseminate information on legislative activities is no greater or less than it was before the state launched LRS,” Plaintiff’s Memorandum of Law in Support of Application for Preliminary Injunction at 19, plaintiff suggests that that argument is neither legally nor factually persuasive. First, plaintiff contends that “it is settled that freedom of speech may not be abridged on the ground that the speaker’s listeners could obtain the message by other means.” Id.; see Virginia State Board of Pharmacy v. Virginia Citizens Consumers Council, 425 U.S. 748, 757 & n. 15, 96 S.Ct. 1817, 1823 & n. 15, 48 L.Ed.2d 346 (1976). Second, plaintiff contends that there are no alternative sources of information available to it. In particular, plaintiff claims that (1) during the time gap between the introduction of a bill and its availability in print, LRS is the only source of a bill’s exact text; (2) no LRS subscriber could telecommunicate to Legi-Tech the information it receives from LRS without itself risking termination of its LRS service; (3) the information available through LRS is uniquely valuable, since the defendants themselves have admitted that their bill summaries are superi- or to any other; and (4) the refusal by the defendants to provide equal access to this technological breakthrough is “intolerable.” The Court does not agree. First, plaintiff’s reliance on the argument that freedom of speech may not be abridged on the ground that the speaker’s listeners could obtain the message by other means is misplaced. This is simply not a ease of a limitation being imposed on plaintiffs speech. It involves rather only a reasonable restriction on plaintiffs access to a state owned means of conveying such information. See Kleindienst v. Mandel, 408 U.S. 753, 765, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972) (alternative means of access may be a relevant factor in “extinguishfing] ... constitutional interest ... in particular form of access”); cf. Members of the City Council v. Taxpayers for Vincent, — U.S.-, 104 S.Ct. 2118, 2132-33, 80 L.Ed.2d 772 (1984) (“[w]hile the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places, a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate” (citations omitted)). But see Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16, 22, No. 84-7809, slip op. at 249 (2d Cir. Nov. 2,1984) (“It may also be true that the public’s right to receive information may not be vitiated by appeals to the availability of alternative means for receipt of the information.” (emphasis added) (citing Kleindienst, 408 U.S. at 765, 92 S.Ct. at 2583)).

Second, plaintiff’s claim that there are no alternative sources of information available to it simply is not true. LRS is not the only source of a bill’s exact text between the time of its introduction and its printing. The affidavit of defendant John J. Faso, submitted in support of defendants’ motion to dismiss the complaint, notes that typewritten copies of bills can on most occasions be obtained prior to printing by requesting a copy from the bill’s sponsor. The Faso affidavit also indicates the availability of bills under Assembly Rule III, § 2(a) which provides that “[o]ne copy of each bill shall, on the day of its introduction, be sent by the Index Clerk to the printer, one copy to the Revision Clerk, which copy shall be subject to public inspection when not in actual use by the committee and the third copy to the Legislative Index Company.” Faso affidavit, 1111 at 5. Finally, the Faso affidavit makes clear that a direct and convenient method of receiving a typewritten copy of a bill upon its introduction is through the Legislative Index Company (“LIC”). Under the rules of both houses of the Legislature, a typewritten copy of every bill and amendment is given to the LIC at the time of introduction. Apparently, LIC offers a subscription service for a fee which provides copies of typewritten bills immediately following their introduction. In any event, bill summaries prepared by the Commission are published in the Legislative Digest the day after introduction and are there available for plaintiff’s purchase.

Plaintiff’s claim that defendants have erected. an impermissible content-based restriction on speech is equally unpersuasive. Again, the critical flaw in plaintiff’s argument may be seen in the fact' that defendants have not imposed upon plaintiff any restriction on expression, content-based or otherwise. Moreover, to the extent that plaintiff’s access to information has been made somewhat more difficult, the characterization of such as content-based is entirely inaccurate. Plaintiff is not being foreclosed from access to LRS because of the content of its intended message but rather because of the form in which it seeks to obtain the message and the format in which it chooses to distribute that message. Certainly, plaintiff is not precluded from disseminating the precise message it seeks to send as long as it obtains the information from a source other than LRS. For similar reasons, plaintiff’s claim that Chapter 257 “creates a content-based prior restraint on the expression of particular types of information by particular means,” also is rejected.

Plaintiff next raises claims that Chapter 257 is both unconstitutionally vague and overbroad. Unlike an over-breadth challenge, a vagueness challenge may not be maintained by one to whose conduct a statute clearly applies. Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974); see also Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1973). With respect to overbreadth, plaintiff urges that Chapter 257 “could be interpreted to apply to any news organization, research service or other organization that electronically disseminates information about state legislation to others — regardless of whether that activity in fact poses a competitive threat to the economic viability of the state’s LRS, the presumed purpose behind the statute.” Plaintiff’s Memorandum of Law in Support of Application for Preliminary Injunction at 28. It is indisputably true that a law is void on its face if it “does not aim specifically at evils within the allowable area of [government] control but, ... sweeps within its ambit other activities that ... constitute an exercise” of protected rights of expression. Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940). It is equally true, however, that the “doctrine is ‘strong medicine’ and [has been] employed ... with hesitation, and then ‘only as a last resort.’ ” New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct.. 2908, 2916, 37 L.Ed.2d 830 (1973)). In consequence, the Supreme Court has “insisted that the overbreadth involved be ‘substantial’ before the statute involved will be invalidated on its face.” New York v. Ferber, 458 U.S. at 769, 102 S.Ct. at 3361 (footnote omitted); see also Secretary of State of Maryland v. Joseph H. Munson Co., — U.S. -, 104 S.Ct. 2839, 2851, 81 L.Ed.2d 786 (1984); Members of the City Council v. Taxpayers for Vincent, — U.S. -, 104 S.Ct. 2118, 2125-26, 80 L.Ed.2d 772 (1984). Indeed, the Court has noted that “particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. at 615, 93 S.Ct. at 2918; see also Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1974) (“This Court has ... repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied. Thus, even if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the ‘remainder of the statute ... covers a whole range of easily identifiable and constitutionally proscribable ... conduct ____’” (quoting United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 580-81, 93 S.Ct. 2880, 2898, 37 L.Ed.2d 796 (1973)).

The purpose underlying the over-breadth doctrine exposes the fallacy in plaintiff’s challenge. As explained by the Supreme Court in New York v. Ferber, “[t]he doctrine is predicated on the sensitive nature of protected expression: ‘persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression.’ ” 458 U.S. at 768, 102 S.Ct. at 3361 (quoting Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980)). It can hardly be the case that Chapter 257 can in any manner be seen to deter speech. First, as discussed above, and as conceded by plaintiff, speech is not even at issue; rather, the question is only one of convenient access. Second, and perhaps more important, the statute does not proscribe or even regulate speech. It simply controls one method of access to government information. Because speech is not regulated, there can be no overbreadth challenge. A party either is or is not covered by the statute and respectively may not or may subscribe to LRS. It is irrelevant that a subscriber who engages in what plaintiff here seeks to engage in will lose its subscription rights since that would stem not from the statute itself but rather from the terms of the subscription agreement. Simply stated, since Chapter 257 cannot possibly deter speech because of questions concerning its possible reach, it cannot be found to be overbroad.

The question of access aside, a number of important Supreme Court cases make it abundantly clear that the statute under attack here suffers no other first amendment infirmity. First, it must be acknowledged that LRS is not a forum created by the government to which plaintiff is entitled to access. In United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981), the Court considered a challenge to a federal statute making it a crime to deposit any mailable matter without postage in mailboxes. The plaintiffs contended that enforcement of the statute would deny them their first amendment freedoms. In rejecting the challenge, the Supreme Court relied largely on its view that a letterbox was not a public forum “to which the First Amendment guarantees access ....” 453 U.S. at 128, 101 S.Ct. at 2685. In particular, the Court held:

There is neither historical nor constitutional support for the characterization of a letterbox as a public forum____ As such, it is difficult to accept appellees’ assertion that because it may be somewhat more efficient to place their messages in letterboxes there is a First Amendment right to do so____
Indeed, it is difficult to conceive of any reason why this Court should treat a letterbox differently for First Amendment access purposes than it has in the past treated the military base in Greer v. Spock, 424 U.S. 828 [96 S.Ct. 1211, 47 L.Ed.2d 505] (1976), the jail or prison in Adderley v. Florida, 385 U.S. 39 [87 S.Ct. 242, 17 L.Ed.2d 149] (1966), and Jones v. North Carolina Prisoners’ Union, 433 U.S. 119 [97 S.Ct. 2532, 53 L.Ed.2d 629] (1977) or the advertising space made available in city rapid transit cars in Lehman v. City of Shaker Heights, 418 U.S. 298 [94 S.Ct. 2714, 41 L.Ed.2d 770] (1974). In all these cases, this Court recognized that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government. In Greer v. Spock, supra, the Court cited approvingly from its earlier opinion in Adderley v. Florida, supra, wherein it explained that “ ‘[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.’ ” 424 U.S. at 836 [96 S.Ct. at 1216-17].

453 U.S. at 128-30, 101 S.Ct. at 2685 (footnote omitted).

The Supreme Court addressed a similar issue more recently in Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). There, the Court upheld the constitutionality of a provision in a collective bargaining agreement between a school district and the teachers' exclusive bargaining representative granting the bargaining representative exclusive access to teacher mailboxes and the interschool mail system to the exclusion of a rival union. The primary question framed by the Court is similar to one presented here, viz., “whether the First Amendment ... is violated when a union that has been elected by public school teachers as their exclusive bargaining representative is granted access to certain means of communication, while such access is denied to a rival union.” 103 S.Ct. at 954. Noting that “[t]he existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue,” id., the Court proceeded to detail the three categories of public property and the different first amendment rights attendant upon each. See 103 S.Ct. at 954-55.

It is beyond question that LRS, like the school mailboxes in Perry, does not fall within the first category of “quintessential public forums,” places which “by long tradition or by government fiat have been devoted to assembly and debate,” id., and where “the rights of the state to limit expressive activity are sharply circumscribed,” id. Nor may LRS be said to fall within the second category of property which the state has opened for use by the public as a place for expressive activity. The analysis of the Perry Court is directly applicable here. In finding that the school mailboxes were not within this second category, the Court took note of a number of important factors. First, it recognized that if “by policy or by practice the Perry School District has opened its mail system for indiscriminate use by the general public, then PLEA could justifiably argue a public forum has been created,” 103 S.Ct. at 956 (emphasis added), but found such not to be the case, since permission to use the system had to be first secured from a principal. The Court held that “[t]his type of selective access does not transform government property into a public forum.” Id.; see also Greer v. Spock, 424 U.S. 828, 838 n. 10, 96 S.Ct. 1211, 1217 n. 10, 47 L.Ed.2d 505 (1976). Here too, by the very terms of Chapter 257, access to LRS is selective in that it is contingent upon approval by the temporary president of the senate and the speaker of the assembly. The Perry Court also noted that even if the granting of access to certain groups created a “limited” public forum, “the constitutional right of access would in any event extend only to other entities of similar character.” 103 S.Ct. at 956. Here, since Legi-Tech, as a competitor of the State, is not of the same character as other subscribers, the denial of access to it cannot be questioned.

LRS, like the school mailboxes, is therefore subject to only the limited constitutional demands placed upon public property falling within the third category. Generally, “[i]n addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” 103 S.Ct. at 955. The Supreme Court’s analysis of the school mailbox restriction is instructive here:

Because the school mail system is not a public forum, the School District had no “constitutional obligation per se to let any organization use the school mail boxes.”
The differential access provided PEA and PLEA is reasonable because it is wholly consistent with the district’s legitimate interest in “preserving] the property ... for the use to which it is lawfully dedicated.”... Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property. The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves.
Finally, the reasonableness of the limitations on PLEA's access to the school mail system is also supported by the substantial alternative channels that remain open for union-teacher communication to take place. These means range from bulletin boards to meeting facilities to the United States mail____

103 S.Ct. at 957, 958, 959 (citations and footnote omitted).

This Court has little difficulty concluding that New York’s LRS also cannot have ascribed to it the attributes of a public forum. Because no public forum is involved, the property owned by the state may be subject to even a prohibition of speech, as long as the state acts reasonably in imposing such restrictions and the restrictions are content-neutral. United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. at 131 n. 7, 101 S.Ct. at 2686 n. 7. There is no question that the regulation here is reasonable 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. Without question, the effect of such would surely be to decrease the immediate availability of information to the public. United States Postal Service v. Greenburgh itself acknowledged the right of Congress to create the postal monopoly to prevent competition from private express services, 453 U.S. at 122, 101 S.Ct. at 2681, and implicitly sanctioned Congress’ efforts to stop a practice that was “ ‘depriving the Post Office Department of considerable revenue on matter which would otherwise go through the mails____’” Id. at 125, 101 S.Ct. at 2683 (quoting H.R.Rep. No. 709, 73d Cong., 2d Sess., 1 (1934)).

Nor can there be any question that Chapter 257 is content-neutral. Access to LRS is prohibited to entities like plaintiff that are competitors not because of the content but because of the technology of the communication used. It is without doubt absurd to characterize as content-based the restriction imposed by Chapter 257; the precise information sought to be disseminated by plaintiff is already provided by defendants. It is only the manner in which the dissemination is effected that could possibly interest defendants.

Finally, of some relevance is the Supreme Court decision in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), involving a challenge to a city’s prohibition of political advertising on its public transportation system. The Court upheld the restriction, finding that no public forum had been created, notwithstanding the fact that commercial advertising was accepted:

Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare. Instead, the city is engaged in commerce. It must provide rapid, convenient, pleasant, and inexpensive service to the commuters of Shaker Heights. The car card space, although incidental to the provision of public transportation, is a part of the commercial venture. In much the same way that a newspaper or periodical, or even a radio or television station, need not accept every proffer of advertising from the general public, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles. In making these choices, this Court has held that a public utility “will be sustained in its protection of activities in public places when those activities do not interfere with the general public convenience, comfort and safety.”
Because state action exists, however, the policies and practices governing access to the transit system’s advertising space must not be arbitrary, capricious, or invidious. Here, the city has decided that “[pjurveyors of goods and services saleable in commerce may purchase advertising space on an equal basis, whether they be house builders or butchers.” This decision is little different from deciding to impose a 10-, 25-, or 35-cent fare, or from changing schedules or the location of bus stops____ In these circumstances, the managerial decision to limit car card space to innocuous and less controversial commercial and service oriented advertising does not rise to the dignity of a First Amendment violation. Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require.
No First Amendment forum is here to be found. The city consciously has limited access to its transit system advertising space in order to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience. These are reasonable legislative objectives advanced by the city in a proprietary capacity. In these circumstances, there is no First or Fourteenth Amendment violation.

418 U.S. at 303-04, 94 S.Ct. at 2717-18.

Here too, the state is involved in a commercial venture. Chapter 257 represents merely an attempt to ensure the survival of that venture by proscribing sales to competitors. Lehman is significant in that it makes clear that when the state acts in its proprietary or commercial capacity, the raising of revenue is a significant and perhaps compelling interest and the state’s action is subject to less exacting scrutiny. See Gannett Satellite Information Network, Inc. v. Metropolitan Transportation Authority, 745 F.2d 767 at 775 (2d Cir.1984); Post Newsweek Stations Connecticut, Inc., v. Travelers Insurance Co., 510 F.Supp. 81, 86 (D.Conn.1981).

Finally, the Court must briefly address the flurry of post-argument submissions prompted by defendants’ forwarding to the Court a copy of the recently decided case of Gannett Satellite Information Network, Inc. v. Metropolitan Transportation Authority, 745 F.2d 767 (2d Cir.1984). Both plaintiff and defendants have gone to some effort to point out to the Court the relevance of that case to their respective positions. Not surprisingly, each views the circuit’s determination as dispositive, although with different results. The Court has reviewed the Gannett decision and considered the parties’ explication of it and concludes that the decision’s relevance is marginal at best.

IV

With respect to a first amendment violation, this Court is persuaded that none has been shown. As stated by defendants, “plaintiff is not being denied the right to receive information. It may receive the information, but it may not force the State to provide the information in a format which would quickly put the State out of business.” Because access is not being denied, this Court is reluctant to find any first amendment violation. In light of this conclusion, it necessarily follows that, with respect to a first amendment claim, plaintiff has failed to establish a likelihood of success on the merits. Indeed, the Court further finds there are no serious questions going to the merits to make them a fair ground for litigation.

Absent a first amendment claim, plaintiff is unable to establish that any irreparable harm will flow from a failure to preliminarily enjoin defendants’ actions. Because the Court concludes that the first amendment claim here is without merit, plaintiff cannot meet the threshold showing of irreparable injury required to obtain a preliminary injunction, and there is no need to discuss the likelihood of success with respect to plaintiff’s remaining constitutional claims.

For the foregoing reasons, plaintiffs motion for a preliminary injunction is denied.

It is so Ordered.

      . Plaintiff’s complaint alleges as well a number of state constitutional violations.

      . Since the time of the Herald decision, the Supreme Court has decided Waller v. Georgia, — U.S. -, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), extending a defendant’s sixth amendment right to a public trial to a pre-trial suppression hearing. That decision, however, does not weaken the conclusions reached by the Herald panel.

      . Indeed, according to defendants,
      the real reason plaintiff brought this action was set forth in paragraph 22 of the plaintiffs Article 78 petition in State Supreme Court:
      Legitech, [sic] Inc. is anxious to subscribe to the Legislative Retrieval System in order to make use of the convenience of having the original texts of bills immediately become part of the database offered to its many subscribers.
      Memorandum of Law in Opposition to Plaintiff's Motion for a Preliminary Injunction at 16.

      . An overbreadth challenge in the first amendment context does of course afford standing even to a plaintiff who, like Legi-Tech, falls clearly within the statute's ambit. "[Wjhere the claim is that a statute is overly broad in violation of the First Amendment, the Court has allowed a party to assert the rights of another without regard to the ability of the other to assert his own claims and ‘with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite specificity.’ ” Secretary of State of Maryland v. Joseph H. Munson Co., -U.S.-, 104 S.Ct. 2839, 2847-48, 81 L.Ed.2d 786 (1984) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973)). This is because facial challenges to statutes "are allowed not primarily for the benefit of the litigant, but for the benefit of society — to prevent the statute from chilling the First Amendment rights of other parties not before the court.” 104 S.Ct. at 2848.

      . Although the Greenburgh decision involved the "broad power of Congress to act in matters concerning the posts ...," 453 U.S. at 126, 101 S.Ct. at 2683; see Ex parte Jackson, 96 U.S. (6 Otto) 727, 732, 24 L.Ed. 877 (1878), its analysis is nonetheless applicable here, since "[h]owever broad the postal power conferred by Art. I may be, it may not of course be exercised by Congress in a manner that abridges the freedom of speech or of the press protected by the First Amendment to the Constitution.” 453 U.S. at 126, 101 S.Ct. at 2684.

      . Although not urged by plaintiff, to the extent irreparable harm may be seen to flow from a denial of the right to petition the legislature for redress of grievances, see Plaintiff’s Memorandum of Law in Support of Application for Preliminary Injunction at 22-24, the claim may nonetheless be considered as without merit. According to plaintiff, the citizenry is denied its right to petition the legislature because defendants have erected a barrier to the dissemination of information. A number of points are immediately apparent. First, plaintiff may not, in this context, raise the rights of third parties to challenge the constitutionality of the statute. Second, there is no question that Chapter 257 has increased the flow of information to the public by making it more accessible more quickly. Third, even though plaintiff is unable to subscribe to LRS, it, along with the citizenry in general, continues to have access to legislative materials through more traditional means.


source: Caselaw Access Project

author: McMILLAN, District Judge.

license: Public Domain

text:
    Kenneth A. GOLDEN, Plaintiff, v. LUTHERAN FAMILY SERVICES IN NORTH CAROLINA, INC., Defendant.
    No. C-C-84-637-M.
    United States District Court, W.D. North Carolina, Charlotte Division.
    Dec. 4, 1984.
    Regan A. Miller, James, McElroy & Diehl, Charlotte, N.C., for plaintiff.
    William R. Hoke, Raleigh, N.C., for defendant.
   PRELIMINARY INJUNCTION

McMILLAN, District Judge.

This case came before the court on December 3,1984, on a motion by plaintiff for a preliminary injunction. Both parties were represented by counsel and evidence was presented through affidavits and live testimony of witnesses.

Jurisdiction exists pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 2000e-5(f)(3) for rights protected under 42 U.S.C. § 1981, § 1983 and Title VII. The court makes no finding as to whether the requisite state action has been shown to invoke the protections of the Fourteenth Amendment and 42 U.S.C. § 1983; there is sufficient jurisdiction under the court’s equitable powers under § 1981 and Title VII to support this order. Although Title VII normally requires that a charge be lodged with the Equal Employment Opportunity Commission (EEOC) for 180 days prior to the time litigation can be instituted, the weight of authority allows plaintiffs who are suffering irreparable injury and who can demonstrate the likelihood of success to obtain appropriate temporary injunctive relief.

Upon consideration of all of the evidence presented, I find that plaintiff has shown a likelihood of success on the merits of his claim that because of his race (black) he was demoted from the position of Area Coordinator for defendant’s Mecklenburg County programs to Assistant Director in July, 1984, and that because of his race and in retaliation for filing a charge of discrimination with the EEOC in September, 1984, he was terminated from the position of Assistant Director in November, 1984. I find that defendant’s stated reasons for the July demotion [a series of incidents in May through July, 1984, which defendant claims demonstrate plaintiff’s lack of administrative and supervisory capability], are pretextual. Plaintiff was rated by his supervisor as “commendable” and “outstanding” in these, areas in an evaluation in March, 1984, and received no indications from defendant prior to the demotion that his performance was seriously deficient in those areas. Plaintiff has also shown likelihood of success on the merits of his claim that the December 1, 1984, “reorganization” [in which, for the first time, plaintiff and other Mecklenburg County employees who had filled supervisory positions with only bachelor’s degrees were required to have master’s degrees] was pretext for his unlawful termination and had a discriminatory impact on plaintiff and other black employees. Through statements of its employees and officers, defendant has indicated that race was and is an important consideration of its employment process because of “feelings” of defendant’s employees that the children in its charge deserved white and black “role models.” Defendant has made no showing that race was a bona fide occupational qualification for the employment of its child care and supervisory workers.

It is further the court’s conclusion that plaintiff is suffering and will continue to suffer irreparable injury because of his involuntary termination from defendant’s employment. He has not only suffered loss of wages and other employment benefits, but has also suffered and will continue to suffer a loss of reputation as an administrator and human services worker which makes it difficult, if not impossible, for him to secure other employment. Additionally, his termination will result in a loss of rapport with those persons he must supervise at Lutheran Family Services, those persons he must work with at the Department of Social Services, the neighborhood and community groups with whom he must maintain good relations, and the children themselves.

No harm will result to defendant; defendant’s own witnesses stated that plaintiff is an excellent worker and that, despite certain administrative deficiencies which they claim led to his demotion, they “all along” had the desire to keep him in the organization and to help him to develop his skills. Defendant pointed to no incident between the time of the July demotion and the November termination which would indicate an inability on plaintiff’s part to do the job of assistant director (now unit coordinator).

Plaintiff has met the four-part standard set out in Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir.1977). I specifically find that:

1. Plaintiff’s probability of ultimate success on the merits is high.

2. The “balance of hardship” is overwhelmingly in plaintiff’s favor; without the issuance of an injunction he is very likely to suffer irreparable harm.

3. Defendant will not be harmed if the plaintiff is returned to the position of assistant director/unit coordinator immediately:

4. No public interest will be adversely affected; to the contrary, public interest as expressed through the acts of Congress in legislating against racially discriminatory treatment and retaliatory action under 42 U.S.C. § 1981 and Title VII will be served.

IT IS THEREFORE ORDERED that, pending further orders of court, the defendant Lutheran Family Services of North Carolina, Inc., its employees, agents, and all other persons acting in concert with or on behalf of defendant shall:

1. Immediately reinstate plaintiff Kenneth A. Golden to his position as assistant director of the Mecklenburg County programs of the Lutheran Family Services of North Carolina, Inc.

2. Not hire anyone other than Kenneth A. Golden to fill his job as unit coordinator [or whatever title may be given to the duties which Golden was performing as assistant director in November 1984].

3. Provide pay and other benefits commensurate with that provided prior to Golden’s termination.

The above order is temporary and preliminary in nature. Plaintiff’s reinstatement will remain in effect until further order of this court. The court retains jurisdiction to issue any additional necessary orders.


author: PALMIERI, District Judge.

text:
    In re GRAND JURY SUBPOENA Hana KOECHER.
    No. M 11-188 (ELP).
    United States District Court, S.D. New York.
    Dec. 11, 1984.
    Rudolph W. Giuliani, Bruce A. Green, Barry Bohrer, Asst. U.S. Attys., New York City, for U.S.
    Michael Kennedy, New York City, for witness.
   OPINION

PALMIERI, District Judge.

Hana Koecher is being detained as a material witness in a prosecution of her husband Karl F. Koecher for acts of foreign espionage in violation of Sections 794(a) and (c) of 18 United States Code entitled “Gathering or Delivering Defense Information to Aid Foreign Government.”

A criminal complaint filed against him on November 27, 1984 resulted in his arrest and incarceration without bail. No charges have been filed against Hana Koecher. She appeared before a grand jury sitting in this district as a subpoenaed witness on November 29, 1984. After being advised of her constitutional rights, Mrs. Koecher was asked a number of questions concerning her activities which were plainly material to the investigation of which her husband was the target. She steadfastly refused to answer any of the questions asserting, after consulting with counsel, her marital privileges against disclosure of confidential communications with her husband and the giving of testimony potentially adverse to the interests of her husband.

On November 29,1984, the United States Attorney for this district moved this Court for an order directing Mrs. Koecher to testify notwithstanding her claims of privilege. It was conceded by both sides at the hearing before this Court that the questions before the grand jury involved no confidential communications between husband and wife so that the sole issue here is whether Mrs. Koecher can validly assert her marital disqualification to testify with respect to her actions at a period of time when her husband was allegedly involved in espionage activity on behalf of the Czechoslovakian intelligence apparatus.

The issue squarely presented is whether Hana Koecher can be compelled to give testimony potentially adverse to her husband despite her claimed disqualification. At a hearing before this Court on December 4, 1984, this Court explained its grounds for holding that her claim of privilege was invalid. The basis for this decision was, essentially, that the testimonial disqualification sought by Mrs. Koecher should not be permitted to stand as a bar to testimony concerning a joint criminal enterprise in which a husband and wife are allegedly both engaged. In the face of reiterated refusal to answer the questions put to her before the grand jury, Mrs. Koecher was thereupon held to be in civil contempt of the Court in violation of 28 U.S.C. § 1826 and committed to jail for a period of 18 months or for the life of the grand jury or until such time as she decided to answer the questions, whichever period was shortest. She has remained committed since December 4,1984.

The discussion which follows is intended to explicate and amplify the oral ruling already referred to. The law regarding the privilege against adverse spousal testimony is unclear. Two Supreme Court decisions since 1958 have dealt with the privilege, but neither decision provides an unequivocal answer to the question facing this Court. The decisions in the Second Circuit similarly yield no clear guidance. The circuits that have addressed the privilege against adverse spousal testimony have reached differing conclusions. For this reason, a brief review of the relevant jurisprudence is necessary.

I The Supreme Court Decisions

The common law rule regarding the marital testimonial privilege has an ancient and fascinating lineage. The development of the privilege has been extensively discussed by the Supreme Court in Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), and Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), and need not be treated in detail in this opinion.

The Hawkins case involved the conviction of a husband for a Mann Act violation. His wife had testified voluntarily against him over his objection. The Supreme court reversed the conviction holding that the privilege against adverse spousal had been violated. In effect, the Hawkins decision permitted the accused to exclude all adverse spousal testimony. Over twenty years later, the Supreme Court again addressed the claim of spousal privilege in the Trammel case and modified the Hawkins rule. The Trammel case concerned a husband and wife who had been jointly engaged in the illegal importation of heroin. At the husband’s trial, the wife — an unindicted co-conspirator — voluntarily testified against her spouse. The 10th Circuit Court of Appeals affirmed the defendant-spouse’s conviction holding that where a husband and wife were joint participants in criminal activities and where the wife gave incriminating testimony at trial under a grant of immunity, the privilege against adverse spousal testimony does not bar the witness-wife’s testimony. 583 F.2d 1166 (10th Cir.1978). The Supreme Court affirmed the conviction — but on a different theory. The Court ignored the “joint participants” theory articulated by the circuit court, and instead limited its holding to vesting the right to assert the privilege solely in the witness-spouse. In reaching this conclusion, the Supreme Court stated that testimonial exclusionary rules and privileges “must be strictly construed and accepted ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth’.” Trammel, 445 U.S. at 50, 100 S.Ct. at 912 (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960) (Frankfurter, J. dissenting). A careful reading of the Court’s opinion reveals the “discomfort” with which the Court viewed the privilege. In re Grand Jury Matter, 673 F.2d 688, 697 (3rd Cir.), cert. denied, sub nom., United States v. Doe, 459 U.S. 1015, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982) (Adams, J. dissenting). The Court reviewed the sharp criticism directed towards the privilege against adverse spousal testimony (Trammel, 445 U.S. at 44-45, 100 S.Ct. at 909-910) and the steady erosion of the privilege both in state jurisdictions (Id. at 48-49, nn. 9-10, 100 S.Ct. at 911-912 nn. 9-10) and in the federal courts (Id. at 46 n. 7, 100 S.Ct. at 910 n. 7). It noted that Fed.R.Evid. 501,

“acknowledges the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials governed by the principles of the common law as they may be interpreted in the light of reason and experience____ In rejecting the proposed [Rule 505] and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege.”

Id. at 47, 100 S.Ct. at 910 (emphasis added). Acting on this intention, the Court stated that the appropriate analysis in a case involving the testimonial privilege is to

“decide whether the privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice.”

Id. at 51, 100 S.Ct. at 912. While finding it unnecessary to abandon the rule completely, (See Respondent’s Brief at 6 n. 3), the Court concluded that the privilege should be severely constricted.

II The Second Circuit Decisions

While the Second Circuit has not expressly adopted the joint participants exception to the privilege in question, it has leaned very far, by way of dictum, in that direction. In fact, the Fifth Circuit went so far as to say that the Second Circuit had adopted the joint participants exception to the privilege against adverse spousal testimony. United States v. Mendoza, 574 F.2d 1373, 1381 (5th Cir.), cert. denied, 439 U.S. 988, 99 S.Ct. 584, 58 L.Ed.2d 661 (1978). But the case which it cited for the proposition, United States v. Cotroni, 527 F.2d 708 (2d Cir.1975), contained an express reservation on the point. The Second Circuit opinion stated, at 712-13:

“We therefore do not reach the question whether they [conversations between husband and wife] were admissible because ... both spouses were participants in patently illegal activity.”

Citing United States v. Kahn, 471 F.2d 191 (7th Cir.1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973) — a case discussed below.

An earlier Second Circuit case, United States v. Mackiewicz, 401 F.2d 219 (2d Cir.), cert. denied, 393 U.S. 923, 89 S.Ct. 253, 21 L.Ed.2d 258 (1968), decided twelve years before the Supreme Court’s decision in Trammel, expressed approval of the common law rule against adverse spousal testimony although its holding was that extra-judicial statements by one spouse were not barred by the testimonial privilege.

In an even earlier case in which Judge Learned Hand wrote for the Second Circuit, it was held that a wife’s extra-judicial statements to a police officer may be admitted in a criminal prosecution of the husband if the spouses were involved in a joint criminal undertaking. United States v. Pugliese, 153 F.2d 497, 500-01 (2d Cir. 1945).

At least one judge of this Court has recognized a joint participants exception to the related privilege protecting confidential marital communications in reliance upon the Fifth Circuit decision in Mendoza, 574 F.2d at 1381. See United States v. Shipp, 578 F.Supp. 980, 991 (S.D.N.Y.1984) (Weinfeld, J.).

In light of the absence of a clear holding concerning a joint participants exception to the privilege against adverse spousal testimony, this Court concludes that the issue is still an open question in the Second Circuit.

Ill The Other Circuits

The circuit courts that have addressed the issue of a joint participants exception to the privilege against adverse testimony have reached differing conclusions. Both the Seventh and Tenth Circuits have explicitly adopted a joint participants exception to the privilege against adverse spousal testimony. The Tenth Circuit recognized the exception in United States v. Trammel, 583 F.2d 1166 (10th Cir.1978), aff'd on other grounds, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), the Seventh Circuit, in United States v. Van Drunen, 501 F.2d 1393 (7th Cir.), cert. denied, 419 U.S. 1091, 95 S.Ct. 684, 42 L.Ed.2d 684 (1974), and United States v. Clark, 712 F.2d 299 (7th Cir.1983). The Third Circuit refused to recognize such an exception in Appeal of Malfitano, 633 F.2d 276 (3d Cir.1980), and in In re Grand Jury Matter, 673 F.2d 688 (3d Cir.), cert. denied, sub nom. United States v. Doe, 459 U.S. 1015, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982). Additionally, at least five circuits have adopted the joint participants exception to a related privilege: the confidential marital communications privilege.

While this Court concurs in the conclusion of both the Seventh and Tenth Circuits that the testimonial privilege may not be successfully asserted when both spouses have engaged in the underlying criminal activity, it recognizes certain weaknesses in the decisions from these circuits.

Both Trammel and Van Drunen involved witnesses who voluntarily testified against their spouses. Given the Supreme Court’s conclusion in Trammel that the privilege may be claimed only by the witness-spouse, the holdings in Trammel and Van Drunen are of questionable vitality. In addition, both Trammel and Clark adopted the twin rationales for the exception articulated in Van Drunen. The Van Drunen court presented two reasons for the exception. First, the goals underlying the privilege do not “justify assuring a criminal that he can enlist the aid of his spouse in a criminal enterprise without fear that by recruiting an accomplice or co-conspirator he is creating another potential witness.” Second, where both spouses have engaged in criminal activity, there is little reason to encourage the preservation of a marriage which is unlikely to be “an important institution contributing to the rehabilitation of the defendant spouse.” See Van Drunen, 501 F.2d at 1396-97; Trammel, 583 F.2d at 1169-70; Clark, 712 F.2d at 301.

Prior to Trammel, the first argument presented by Van Drunen was a highly persuasive one. A person who recruited his spouse into criminal activities could be absolutely certain that — barring divorce —his partner in crime could never testify against him. The Hawkins rule gave the defendant the power to prevent his spouse’s testimony — even if she was willing to take the stand. However, since Trammel, a defendant can no longer prevent his spouse from voluntarily testifying against him. The assurance that the Van Drunen court spoke of is thus no longer absolute — it accrues only to a criminal with a loyal spouse.

The second reason advanced by Van Drunen in support of the joint participants exception was that the “rehabilitative effect of the marriage, which in part justifies the privilege, is diminished when both spouses are participants in the crime.” United States v. Clark, 712 F.2d 299, 301 (7th Cir.1983), citing Van Drunen at 1397. Neither Clark nor Van Drunen cited any authority for the proposition that the rehabilitative effect of a marriage is a justification for the privilege against adverse spousal testimony, and this Court can find none. “Modern views generally point to one of two major policies behind [the privilege’s] continued existence: prevention of dissention between spouses which might result from testimony of one against the other, and society’s ‘natural repugnance’ at condemning a person on the compelled testimony of his or her spouse.” Ruetlinger, Policy, Privacy and Prerogatives: A Critical Examination Of The Proposed Federal Rules of Evidence As They Affect Marital Privilege, 61 Calif.L.Rev. 1353, 1359-60 (1973). See, 8 Wigmore, Evidence § 2228 at 216-18 (McNaughton rev. 1961). Given the clear instruction of the Supreme Court that evidentiary privileges in general and this privilege in particular, are to be strictly construed, this Court is reluctant to seek out new rationales for the privilege.

Opposed to the position of the Seventh and Tenth Circuits is that of the Third Circuit. In Appeal of Malfitano, 633 F.2d 276 (3d Cir.1980) and In re Grand Jury Matter, 673 F.2d 688 (3d Cir.), cert. denied, sub nom. United States v. Doe, 459 U.S. 1015, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982), the Third Circuit rejected the notion that where both spouses are allegedly involved in criminal activity the privilege against adverse spousal testimony does not apply. That Court has held, however, that there is a joint participants exception to the related privilege protecting confidential marital communications. See United States v. Ammar, 714 F.2d 238 (3d Cir.), cert. denied sub nom., Stillman v. United States, — U.S.-, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983). In Ammar, the Court attempted to harmonize these positions by arguing that the privilege against adverse spousal testimony is designed to protect the marriage (and that marriages involving criminal activity are no less worthy than other marriages of the protection), while the confidential marital communications privilege is designed to protect the communications themselves. See Ammar, 714 F.2d at 257-58; Malfitano, 633 F.2d at 279 n. 5. The Court wrote:

“[Ojther circuits have recognized [a joint participants] exception to the marital communications privilege, on the ground that such communications are not worthy of protection, [cites].”

Can it be that the Ammar court misapprehended the motivation of the other circuits in recognizing a joint participants exception to the confidential marital communications privilege? In all three of the cases cited by Ammar, the circuit courts explicitly stated that where both spouses are involved in criminal activity, admitting the evidence would be unlikely to offend marital harmony. United States v. Price, 577 F.2d 1356, 1365 (9th Cir.1978), cert. denied, sub nom. Mitchell v. United States, 439 U.S. 1068, 99 S.Ct. 835, 59 L.Ed.2d 33 (1979); United States v. Mendoza, 574 F.2d 1373, 1380 (5th Cir.), cert. denied, 439 U.S. 988, 99 S.Ct. 584, 58 L.Ed.2d 661 (1978); United States v. Kahn, 471 F.2d 191, 194 (7th Cir.1972), rev’d on other grounds, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974).

In light of the rationale articulated by the Fifth, Seventh, and Ninth Circuits this Court questions the validity of the Third Circuit’s position. A set of evidentiary rules which permits the introduction of confidential communications between husband and wife but bars the testimony of one against the other seems illogical if the goal of the rules is to preserve and protect marital harmony.

IV Discussion

In the absence of precedent in the Second Circuit, and in view of the conflict of authority between the Third, Seventh, and Tenth Circuits, this Court is mindful of its heavy responsibility in ploughing new ground. We note, in passing, that the Supreme Court has twice declined the opportunity to decide the very question presented to this Court. Trammel, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), Brief for Respondents at 2, 8, 25-29; In re Grand Jury Matter, 673 F.2d 688 (3d Cir.), cert. denied sub nom., United States v. Doe, 459 U.S. 1015, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982), Petition for Certiorari at 6-7.

In Trammel, the Supreme Court announced that the appropriate analysis in a case involving the testimonial privilege is to “decide whether the privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice.” 445 U.S. at 51, 100 S.Ct. at 912.

As discussed earlier, there are two interests underlying the privilege against adverse spousal testimony: (1) prevention of dissension between spouses which might result from testimony of one against the other; and (2) society’s “natural repugnance” at condemning a person on the compelled testimony of his or her spouse.

To what extent does the recognition of a joint partnership exception that permits the government to compel a person to testify against his or her spouse defeat these policies?

It should be noted at the outset that this Court is not writing on a blank slate. The privilege is no longer the categorical and simple rule that it once was. The federal courts have recognized exceptions to the privilege for cases in which one spouse commits a crime against the other, Wyatt v. United States, 362 U.S. 525, 526, 80 S.Ct. 901, 902, 4 L.Ed.2d 931 (1960); one spouse commits a crime against the other’s property, Herman v. United States, 220 F.2d 219, 226 (4th Cir.1955); one spouse commits a crime against either’s children, United States v. Allery, 526 F.2d 1362 (8th Cir.1975); the marriage is entered into fraudulently, United States v. Apodaca, 522 F.2d 568 (10th Cir.1975); the marriage is beyond preservation, United States v. Fisher, 518 F.2d 836 (2d Cir.), cert. denied 423 U.S. 1033, 96 S.Ct. 565, 46 L.Ed.2d 407 (1975); the acts about which the witness-spouse testified occurred prior to the marriage, United States v. Clark, 712 F.2d at 302; the witness spouse’s statements are made outside of the courtroom, United States v. Mackiewicz, 401 F.2d at 225; and where the government has conferred use-fruits immunity on the witness’ spouse, United States v. Doe, 478 F.2d 194, 195 (1st Cir.1973).

The law of the State of New York, where this Court sits, does not recognize any privilege against adverse spousal testimony .

The laws of marriage and domestic relations are concerns traditionally reserved to the states. See Trammel, 445 U.S. at 50, 100 S.Ct. at 912. It seems anomalous that a federal court serving the same community should be more zealous in weighing the attributes of spousal relationships than the state courts themselves.

As we discussed earlier at 12, at least three circuits have held that where spouses are jointly engaged in criminal activity, the admission of a spouse’s testimony is unlikely to cause marital dissension. See Price, 577 F.2d at 1365; Mendoza, 574 F.2d at 1380; and Kahn, 471 F.2d 194.

The Second Circuit has clearly adopted the position that a person may be incriminated by the extra-judicial statements of his spouse. See United States v. Mackiewicz, 401 F.2d at 225; United States v. Pugliese, 153 F.2d 497, 500-01. A fortiori, a spouse’s extra-judicial statements can also be used to impeach the defendant. See United States v. Neal, 743 F.2d 1441, 1448 (10th Cir.1984) (Logan, J. concurring). Cf. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (statements inadmissible in prosecution’s case in chief because of Miranda violation may be used for impeachment purposes if defendant testifies). Therefore, the mere fact that the spouse is an instrument of the defendant’s incrimination is not so repugnant as to require exclusion of the testimony. And where both spouses have been granted use-fruits immunity, a person may be compelled to testify against his spouse. See United States v. Doe, 478 F.2d 194, 195 (1st Cir.1973); In re Grand Jury Matter, 673 F.2d 688, 694 n. 12 (3d Cir.), cert. denied, 459 U.S. 1015, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982). Cf. Ryan v. Commissioner of Internal Revenue, 568 F.2d 531, 543 (7th Cir.1977), cert. denied, 439 U.S. 820, 99 S.Ct. 84, 58 L.Ed.2d 111 (1978) (interrogatories).

In conclusion, this Court is persuaded that the recognition of a joint participants exception to the privilege against adverse spousal testimony will not seriously infringe upon the goals underlying that privilege. Furthermore, this Court is reluctant to interfere with the sweeping powers of the grand jury in its investigative functions. United States v. Calandra, 414 U.S. 338, 350, 94 S.Ct. 613, 621, 38 L.Ed.2d 561 (1974); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). The fair and expeditious administration of the criminal laws requires us to be extremely circumspect in dealing with the claim of a testimonial disqualification by a spouse who is an unwilling witness.

The frequently quoted statement of Jeremy Bentham, in expressing his opposition to the marital testimonial privilege over a century and a half ago, retains its validity today:

“Let us, therefore, grant to every man a license to commit all sorts of wickedness, in the presence and with the assistance of his wife: let us secure to every man in the bosom of his family, and in his own bosom, a safe accomplice: let us make every man’s house his castle; and, as far as depends upon us, let us convert that castle into a den of thieves.”

J. Bentham, 5 Rationale of Judicial Evidence, 332, 340 (1827), cited in 8 J. Wig-more, Evidence, § 2228 at 218 (McNaughton rev. 1961).

This Court adheres to its decision of December 4, 1984 holding Hana Koecher in civil contempt of court in violation of 28 U.S.C. § 1826.

      . Under Fed.R.Evid. 501, federal privilege law applies in criminal cases. The Federal courts recognize two common law privileges arising from the marital relationship. The first concerns the disclosure of confidential marital communications. The second, a testimonial privilege, permits one spouse to refrain from testifying adversely against the other.

      . The privilege against adverse spousal testimony is applicable in proceedings before the grand jury to the same extent that it is applicable in a criminal trial in federal court. See, e.g., United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974); Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951); Appeal of Malfitano, 633 F.2d 276 (3d Cir.1980); Fed.R.Evid. 1101(d)(2).

      . The government has made an offer of proof concerning the alleged joint criminal enterprise between Karl and Hana Koecher. F.B.I. agent Kenneth M. Geide has sworn in an Affidavit in Support of Material Witness Warrant (Government's Memorandum of Law, Exhibit A) and a Complaint (Government’s Memorandum of Law, Exhibit B) that Karl Koecher made and signed a written statement reciting that he had been recruited and trained by the Czechoslovakian Intelligence Service as a spy during the years of 1962-1965, that he passed certain classified information which he obtained as an employee of the Central Intelligence Agency to the Czechoslovakian Intelligence Service during the years of 1973-1975, and that his wife, Hana Koecher, acted as a courier for the Czechoslovakian Intelligence Service delivering classified information obtained by Karl Koecher to agents of the Czechoslovakian Intelligence Service and receiving payments from the Czechoslovakian Intelligence Service in return for this information during the years of 1974-1983.

      . On appeal, the government did not argue that a grant of immunity had to be involved. The government argued that joint participation in criminal activity was sufficient to justify an exception to the privilege against adverse spousal testimony. See Brief for Respondents at 2, 8 and 25-29.

      . The Second Circuit had also noted the "vociferous criticism which has characterized the rule as an archaic residue of discarded dogma and an attempt to foster familial harmony which is often more apparent than real.” United States v. Fisher, 518 F.2d 836, 839 (2d Cir.), cert. denied, 423 U.S. 1033, 96 S.Ct. 565, 46 L.Ed.2d 407 (1975).

      . The Fifth Circuit has declined to reach the issue of a joint participants exception. See United States v. Archer, 733 F.2d 354, 358-59 and n. 3 (5th Cir.), cert. denied, — U.S.-, 105 S.Ct. 198, 83 L.Ed.2d 130 (1984).

      . See, e.g., United States v. Kapnison, 743 F.2d 1450 (10th Cir.1984); United States v. Neal, 743 F.2d 1441 (10th Cir.1984); United States v. Broome, 732 F.2d 363 (4th Cir.1984); United States v. Ammar, 714 F.2d 238 (3d Cir.1983), cert. denied sub nom., Stillman v. United States, — U.S. -, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983); United States v. Entrekin, 624 F.2d 597 (5th Cir.1980), rhg. denied, 629 F.2d 1350, cert. denied, 451 U.S. 971, 101 S.Ct. 2049, 68 L.Ed.2d 350 (1981); United States v. Mendoza, 574 F.2d 1373 (5th Cir.) cert. denied, 439 U.S. 988, 99 S.Ct. 584, 58 L.Ed.2d 661 (1978); United States v. Kahn, 471 F.2d 191 (7th Cir.1972), rev’d on other grounds, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). See also United States v. Shipp, 578 F.Supp. 980 (S.D.N.Y.1984) (Weinfeld, J.). The Ninth Circuit will shortly confront this issue in In re Hugle, no. 84-1228.

        . See, e.g. Pereira v. United States, 202 F.2d 830, 834 (5th Cir.1953).

      . See United States v. Nixon, 418 U.S. 683, 709-710, 94 S.Ct. 3090, 3108-3109, 41 L.Ed.2d 1039 (1974).

      . Trammel, 445 U.S. at 50, 100 S.Ct. at 912.

      . N.Y. CPLR § 4512 provides:
      "Except as otherwise expressly prescribed, a person shall not be excluded or excused from being a witness ... because he is a ... spouse of a party.”
      (For an example of an exception to this rule, see N.Y. CPLR § 4502(a) which disqualifies a person from testifying against his spouse in an adultery action except as to certain limited matters.) N.Y.Crim.Pro.L. § 60.10 makes this rule applicable in criminal cases.


author: SCHATZ, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. ARTICLES OF DRUG, et al., Defendants, Midwest Pharmaceuticals, Inc., Claimant. UNITED STATES of America, Plaintiff, v. MIDWEST PHARMACEUTICALS, INC., et al., Defendants.
    Nos. CV. 84-0-206, CV. 84-0-323.
    United States District Court, D. Nebraska.
    Dec. 11, 1984.

      Paul J. Johns, Asst. U.S. Atty., Omaha, Neb., for plaintiff.
    John M. O’Connor, DeForest & Duer, New York City, Anthony M. Troia, Omaha, Neb., for defendants.
   ORDER

SCHATZ, District Judge.

This matter coming on for determination with reference to the findings and recommendations of the magistrate as to the government’s motion for summary judgment upon counterclaims made by the claimant (Filing No. 28 in CV. 84-0-206), the claimant’s motion for partial summary judgment as to some seized items (Filing No. 37 in CV. 84-0-206), and defendants’ motions to dismiss (Filing Nos. 24 and 25 in CV. 84-0-323), and the Court having carefully reviewed said findings and recommendations and having reviewed the briefs filed in support of and in opposition to said motions, and having noted defendants’ objections have been filed with reference to said findings and recommendations, and being fully advised in the premises, the Court hereby adopts said findings and recommendations of the magistrate.

With reference to defendants’ Objections to Magistrate’s Findings and Recommendations, the Court rejects defendants’ argument that a distributor may not be enjoined for the alleged improper actions of persons over whom the distributor has no control. In Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 853-56, 102 S.Ct. 2182, 2187-89, 72 L.Ed.2d 606 (1982), a trademark infringement case, the United States Supreme Court held that liability will extend beyond those who actually do the wrongful act under certain circumstances:

Even if a manufacturer does not directly control others in the chain of distribution, it can be held responsible for their infringing activities under certain circumstances. Thus if a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorily responsible for any harm done as a result of the deceit.
Inwood, 456 U.S. at 853-54, 102 S.Ct. at 2187-88.

In Sony Corp. v. Universal City Studios, — U.S. -, 104 S.Ct. 774, 789, 793, 78 L.Ed.2d 574 (1984), a copyright infringement case, the Supreme Court also referred to the doctrine of extended or contributory liability, stating that such liability will not be extended unless there is a showing by a preponderance of the evidence that the alleged wrongful use is substantial and harmful, or that some meaningful likelihood of future harm exists. These cases point out that the doctrine of extended or contributory liability is alive and well today.

This Court concludes that the doctrine of extended or contributory liability is applicable in an action alleging violations of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301, et seq. In light of the Act’s broad purpose of protecting the public’s health and safety, the Court further concludes that manufacturers and distributors may be held contributorily liable for the alleged violations of 21 U.S.C. § 352(i)(2) if they intentionally induced another to commit any such violation, or if they knew, had reason to know or reasonably could have anticipated that a substantial portion of their products would be passed off as controlled substances by others in the chain of distribution. Accordingly.

IT IS HEREBY ORDERED that the said findings and recommendations of the magistrate be and the same are hereby confirmed and adopted by this Court in all respects; and

IT IS FURTHER ORDERED:

1) That the government’s motion for summary judgment upon counterclaims made by the claimant (Filing No. 28 in CV. 84-0-206) be and the same is hereby granted;

2) That the claimant’s motion for partial summary judgment (Filing No. 37 in CV. 84-0-206) be and the same is hereby denied;

3) That defendant Midwest Pharmaceutical’s motion to dismiss (Filing No. 24 in CV. 84-0-323) be and the same is hereby denied; and

4) That defendant Steven F. Sommers’ motion to dismiss (Filing No. 25 in CV. 84-0-323) be and the same is hereby denied.

MAGISTRATE’S FINDINGS AND RECOMMENDATIONS

October 19, 1984.

RICHARD C. PECK, United States Magistrate.

Pursuant to the provisions of 28 U.S.C. § 636, findings and recommendations are herewith made upon the Government’s motion (filing 28 in CV84-0-206) for summary judgment upon counterclaims made by the claimant, the claimant’s motion (filing 37 in CV84-0-206) for partial summary judgment as to some seized items, and motions by two of the defendants (filings 24 and 25 in CV84-0-323) to dismiss.

Midwest Pharmaceuticals, Inc., a/k/a B & S Distributors (hereinafter “Midwest”) has been engaged in distribution of drug products from locations in the Omaha, Nebraska metropolitan area. Steven F. Sommers is now president and principal owner of the corporation. Robert S. Liebert, until recently, was its president.

These two cases, consolidated for trial by previously entered order, are: first, an in rem seizure and condemnation action against the drug products described in the caption of CV84-0-206, with allegations that they are imitation drugs, thus misbranded within the meaning of 21 U.S.C. § 352(i)(2), and subject to seizure under the provisions of 21 U.S. C. § 334, and in which Midwest, as claimant of the products, has filed an answer and three stated counterclaims; and second, an action (CV84-0-323) for injunctive relief, under the provisions of 21 U.S. C. § 332(a), against Midwest and its present and former president.

The overriding issue in both cases is whether the Federal Food, Drug, and Cosmetic Act makes a distinction between “counterfeit” drugs and “imitation” drugs; and, if so, whether the evidence upon which the • government relies will establish that the products involved are imitations of controlled substances. If the answer to both questions is “yes”, the Government wins.

Included in the acts prohibited by provisions of 21 U.S.C. § 331 is misbranding of drugs or their introduction, delivery or receipt in interstate commerce. Misbranded drugs are by 21 U.S.C. § 334 made subject to seizure proceedings.

By the provisions of 21 U.S.C. § 352(i)(2), a drug is misbranded “... if it is an imitation of another drug____” The word “imitation” is nowhere further defined in the provisions of the Act.

In the section confined to definitions of terms there is included at 21 U.S.C. § 321(g)(2):

The term ‘counterfeit drug’ means a drug which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, or device, or any likeness thereof, of a drug manufacturer, processor, packer, or distributor other than the person or persons who in fact manufactured, processed, packed, or distributed such drug and which thereby falsely purports or is represented to be the product of, or to have been packed or distributed by, such other drug manufacturer, processor, packer, or distributor.

The provisions of 21 U.S.C. § 332(a) empower district courts of the United States to enjoin acts prohibited by the provisions of 21 U.S.C. § 331 but exclude from availability of that remedy, among other things, an act which causes a drug to be a “counterfeit drug” or the sale of a “counterfeit drug”. The remedy which may be invoked by the Government in instances of counterfeit drugs distribution is that incorporated in the provisions of 21 U.S.C. § 334(a)(2) for seizure of:

(A) Any drug that is a counterfeit drug,
(B) Any container of a counterfeit drug, and
(C) Any punch, die, plate, stone, labeling, container, or other thing used or designed for use in making a counterfeit drug or drugs.

The essence of Midwest’s position is that the term “imitation” as used in § 352(1)(2) must be equated with the term “counterfeit drug” as defined in § 321(g)(2), which means one bearing without authorization the identifying marks of another manufacturer or distributor; that since the drug products in question admittedly did not bear identifying marks belonging to another manufacturer or distributor, they are not “counterfeit” and, therefore, not subject to seizure; and that no statutory authority for invocation of the remedy of injunction exists.

The essence of the Government’s position is that the descriptive words “counterfeit” and “imitation” are not treated in the Food, Drug, and Cosmetic Act as being synonymous; that while a counterfeit drug is one using identifying markings of another manufacturer or distributor as defined in the Act, an imitation drug is one “passed off” to the consumer as being a specific substance which in fact it is not; and that the Act in question authorizes both the remedies of seizure and of injunction for the contradiction of traffic in imitation drugs.

The evidence upon which the Government represents it will rely at trial to sustain its position encompasses a history and pattern of operations followed by Midwest and its officers in its distribution of the drug products in question. Included are alleged facts that Midwest’s distribution of products is not to buyers for drug stores or similar retail outlets; its business is largely of the mail order type; advertisements are not carried in retail trade journals but in magazines such as High Times and Hustler with emphasis upon the appearance of the products; distribution of capsules and pills of its products are largely in bottles containing 1000 units; the bottles are labeled “This product does not contain amphetamines, narcotics or barbituates”, but the first purchaser discards that packaging and repackages the contents into “baggies” for street sales, largely to elementary school students; ingredients of the pills and capsules are either caffeine or ephedrine but are so sized, shaped and colored as to mimic street substances which have come to be known as “speed”, “black beauties”, “reds”, “yellowjackets”, “downers”, etc., which are controlled drug substances; that the ultimate consumer purchases and uses products so distributed by Midwest in belief that they are illicit controlled substances; that there is recognizable risk to the health of drug users consuming imitation drugs in belief that they are in fact controlled substances; and that such “passing off” as imitation of controlled substances is contemplated and known by Midwest and is the reason for the existence of the industry of which Midwest is a part.

A complaint is not to be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Robinson v. M.F.A. Mutual Insurance Co., 629 F.2d 497 (8 Cir.1980). Accordingly, viewing the allegations in the light most favorable to the Government in the complaint for injunction, the defendants' motions to dismiss must fail if the court first determines that the phrase “imitation of another drug,” as used by the Congress in enacting 21 U.S. C. § 352(i)(2), is distinguishable from the statutorily defined term “counterfeit drug” and means a substance being passed off in interstate commerce as a drug other than what it in fact is.

Neither side points to decisional law squarely dispositive of the question. In dicta, the Supreme Court recently said that the provisions of 21 U.S.C. § 352(i) are “intended to prohibit a company from passing an imitation off as the original____” United States v. Generix Drug Corporation, 460 U.S. 453, 103 S.Ct. 1298, 1302 n. 9, 75 L.Ed.2d 198 (1983). Reported decisions have made quite apparent that, when faced with necessity to construe broadly worded provisions of the Federal Food, Drug, and Cosmetic Act, the courts have consistently interpreted its terms expansively in order to achieve its purposes. That tenet of judicial construction is summarized in United States v. Naremco, Inc., 553 F.2d 1138, 1141 (8 Cir.1977) as follows:

The Federal Food, Drug, and Cosmetic Act is a remedial statute designed for the protection of the consumer. United States v. Urbuteit, 335 U.S. 355, 358, 69 S.Ct. 112, 93 L.Ed. 61 (1948). As remedial legislation, the Act must be given a liberal construction consistent with its overriding purpose to protect the public health. United States v. Bacto-Unidisk, 394 U.S. 784, 798, 89 S.Ct. 1410 [1418] 22 L.Ed.2d 726 (1969). Judicial awareness of the purpose of the Federal Food, Drug, and Cosmetic Act should insure that the Act is treated as ‘a working instrument of government and not merely as a collection of English words.’ United States v. Dotterweich, 320 U.S. 277, 280, 64 S.Ct. 134, 136, 88 L.Ed. 48 (1943).

Acceptance of Midwest’s contention that “imitation,” as used in § 352(i)(2), must be considered synonymous with “counterfeit,” as used in § 321(g)(2), would require treatment of the Act as a “mere collection of English words” and, in effect, an elimination from the Act of the misbranding provision of § 352(i)(2). From a reading of § 321(g)(2) it is quite clear that the counterfeiting prohibitions in the Act are directed only toward the practice of simulating on a product, its labeling or container, another’s identifying mark or imprint. Entirely consistent with that statute is an interpretation that the imitation misbranding provision of § 352(i)(2) reaches the differing practice of a passing off of one substance in imitation of another. Construing thus the two statutory provisions accords with the established principle of statutory construction that if two provisions are capable of co-existence, each is to be regarded as effective. See, e.g. Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974).

Midwest argues that such an interpretation of § 352(i)(2) renders the provisions unconstitutionally vague because it does not include an objective standard sufficient for ready recognition as to how a particular product, not otherwise a controlled substance, becomes an imitation drug and thus misbranded.

That argument is but a circuitous play on words. The production and marketing of drugs is a highly regulated industry. In the field of regulatory statutes governing limited business activities, a greater leeway is allowed in sustaining a statute against a vagueness attack. United States v. National Dairy Products, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). There the court said:

The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language. E.g., Jordan v. De George, 341 U.S. 223, 231 [71 S.Ct. 703, 707, 95 L.Ed. 886] (1951), and United States v. Petrillo, 332 U.S. 1, 7 [67 S.Ct. 1538, 1541, 91 L.Ed. 1877] (1947). Indeed, we have consistently sought an interpretation which supports the constitutionality of legislation. E.g., United States v. Rumely, 345 U.S. 41, 47 [73 S.Ct. 543, 546, 97 L.Ed. 770] (1953); Crowell v. Benson, 285 U.S. 22, 62 [52 S.Ct. 285, 296, 76 L.Ed. 598] (1932); see Screws v. United States, 325 U.S. 91 [65 S.Ct. 1031, 89 L.Ed. 1495] (1945).
Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617 [74 S.Ct. 808, 811, 98 L.Ed. 989] (1954). In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged. Robinson v. United States, 324 U.S. 282 [65 S.Ct. 666, 89 L.Ed. 944] (1945).

Id. 32-33, 83 S.Ct. at 597-598. In the instant cases, if the Government is able to prove those facts alleged, it is entirely reasonable to expect that Midwest and its officials understood that a passing off of caffeine, for example, as “speed” was engagement in distribution of “an imitation of another drug.” The cry of vagueness is without substance; and the same conclusion follows as to Midwest’s contention that it is not accountable for the circumstance that street vendors of their products distribute them as imitations of controlled substances.

Accordingly, I find that the Federal Food, Drug, and Cosmetics Act does not treat synonymously the words “counterfeit” and “imitation” in its categorization of drug substances, that an imitation drug is one passed off as a different drug substance than it in fact is, that in appropriate factual circumstances the remedy of injunction is available under provisions of the Act to contradict manufacture and distribution of imitation drugs, and that the motions of the defendants Midwest and Sommers to dismiss the complaint seeking injunctive relief (filings 24 and 25 in CV84-0-323) should be denied.

For the same reasons I find that the motion of claimant Midwest for summary judgment in the seizure action (filing 37 in CV84-0-206) should be denied.

There remains for consideration the Government’s motion for summary judgment (filing 28 in CY84-0-206) upon the counterclaims asserted by claimant Midwest in its answer to the complaint for seizure and forfeiture of the described drug products.

The first counterclaim is in reality a request for enforcement of Rule 11, F.R. Cv.P. sanctions under a contention that Government counsel filed the seizure complaint without first making reasonable inquiry as to whether it was well grounded in fact and warranted by law. Rule 11 obviously does not create an independent cause of action, but rather creates a remedial tool available to the court where clear showing is made of improper conduct on the part of the person signing and filing a pleading. Therefore, as a matter of law, the Government is entitled to summary judgment on the first counterclaim.

The second counterclaim alleges abuse of process and the third counterclaim alleges failure to exercise due care in the investigation of the claim of misbranding. What has been said precedingly in these findings forecasts characterization of the frivolous nature of these claims. Stripped of their outer dressings, their substance is no more than an assertion that, because some question may be said to have existed as to the allowable interpretation which may be made of designated provisions of the Federal Food, Drug, and Cosmetics Act, Government counsel should have chosen not to proceed with the instant litigation. Clearly, the choice to proceed or not to proceed was one necessarily made in exercise of a discretionary function, and any claim grounded in that judgment is barred by the provisions of 28 U.S.C. § 2680(a) of the Federal Tort Claims Act.

Accordingly, I find that, as a matter of law, the United States of America is entitled to summary judgment upon each of the three counterclaims recited in the claimant’s answer in CV84-0-206.

IT IS THEREFORE RECOMMENDED to District Judge Albert G. Schatz that an order be entered:

1. Granting summary judgment to the United States of America upon the claimant’s counterclaims recited in its answer in CV84-0-206, as requested in the motion at filing 28.

2. Denying the motion of the claimant Midwest Pharmaceuticals, Inc., for summary judgment in CV84-0-206, as requested at filing 37.

3. Denying the motion to dismiss in CV84-0-323 as made by defendant Midwest Pharmaceuticals, Inc., at filing 24, and also denying the motion to dismiss as made by defendant Steven F. Sommers in the same case at filing 25.

      . So finding, it becomes unnecessary to consider the Government’s contention that no claim was first presented for administrative consideration as required by 28 U.S.C. § 2675, and the claimant’s contention that these are mandatory counterclaims of a nature obviating necessity to first pursue an administrative claim.