In The United States Court of Appeals

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In The

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The Association of American Physicians & Surgeons, Inc. (“AAPS”) and the Eagle Forum Education and Legal Defense Fund (“EFELDF”) hereby move, pursuant to Federal Rule of Appellate Procedure 29(e), to file the accompanying amici curiae brief for rehearing en banc.^¹ AAPS is a national non-profit organization, founded in 1943, of thousands of physician members in every specialty. AAPS members must comply with mandated codes that are withheld from Internet-based scrutiny due to ownership asserted by the American Medical Association. EFELDF is a non-profit organization founded in 1981 dedicated in part to defending Rule of Law and, more specifically, parental rights to access government materials related to implementation of the law.

The 2-1 panel majority acknowledged overruling the Supreme Court precedent that “the authentic exposition and interpretation of the law … binding every citizen, is free for publication to all.” Banks v. Manchester, 128 U.S. 244, 253 (1888) (quoted at Slip Op. at 12, emphasis added). The panel majority observed that this Supreme Court precedent “would seem to apply equally to any statute, ordinance, or regulation that has the force of law irrespective of authorship.” Slip Op. at 12. But the panel majority declared that abiding by this teaching would be “risky”, and overruled this teaching of Banks for policy, rather than statutory, reasons. This also creates a conflict with another Circuit. See Building Officials & Code Admin. v. Code Technology, Inc., 628 F.2d 730, 734 (1st Cir. 1980) (rejecting restrictions on access to the law, reiterating that “[t]he citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process”).

This decision violates Rule of Law. Only the Supreme Court can overrule its precedents. “Needless to say, only this Court may overrule one of its precedents.” Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) (per curiam) (criticizing a Circuit Court for departing from a Supreme Court precedent); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989); id. at 486 (Stevens, Brennan, Marshall and Blackmun, JJ., dissenting) (“[T]he Court of Appeals therefore engaged in an indefensible brand of judicial activism.”). Rule of Law requires adherence to this principle, even if the lower court is confident that the Supreme Court precedent is wrong. See, e.g., Khan v. State Oil Co., 93 F.3d 1358, 1363 (7^th Cir. 1996) (Posner, J.), rev’d, 522 U.S. 3 (1997) (Judge Posner opined that a Supreme Court precedent was wrong, but adhered to it nevertheless; Supreme Court then reversed its precedent on appeal). In State Oil, a unanimous Supreme Court reiterated that the “Court of Appeals was correct in applying th[e] principle despite disagreement with [the precedent], for it is this Court's prerogative alone to overrule one of its precedents.” 522 U.S. at 20 (emphasis added). A rehearing en banc of the decision is necessary here, at a minimum, to adhere to the Supreme Court precedent in Banks.

information principles. Widely acclaimed freedom of information law ensures that the public has a right to electronic copies of government documents in addition to non-electronic versions. Honoring Justice Brandeis’ sage observation that “sunshine is said to be the best disinfectant,” federal and state governments have extended public access to information to electronic versions. Louis Brandeis, Other People's Money 67 (1933); 5 U.S.C. § 552(a)(2)-(3). Public scrutiny will catch errors and illogic much quicker and more thoroughly than a handful of experts. The panel majority erred when it implicitly held that public access to a non-electronic copy of the law was an adequate substitute for public access to an electronic copy of the same law. Slip Op. at 8-9.

The panel majority expressed a fear that “schoolbooks [would] lose their copyright once assigned in compliance with a school curriculum mandated by law.” Slip Op. at 14. But school legal requirements themselves should be available electronically for public scrutiny. Likewise, if local governments ever incorporate references to foreign language versions of their laws, then those versions should be available on the Internet for public scrutiny. Allowing government or private entities to block such dissemination is directly contrary to freedom of information principles and their enormous benefits.

Veeck and every other member of the public have a fundamental right to freely access an electronic copy of the building codes used by government itself. See, e.g., 5 U.S.C. § 552(a)(3)(C) (“In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format ….”). It was anachronistic and unsupported by freedom of information laws for the panel majority to base its ruling on the existence of non-electronic access to the codes. Slip Op. at 8-9. The reality is that every member of the public has the right to access an electronic copy of these codes, and Veeck’s posting of the codes merely facilitated the public exercise of that right. It is an unwarranted elevation of form over substance to hold, as the panel majority did, that Veeck’s facilitation of a public right must be prohibited and sanctioned.

In addition, the fundamental right of free speech must include the right to restate the law. As the Supreme Court has emphasized time and time again, political speech is at the core of the free speech right – and the laws themselves are surely at the core of political discourse. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) (“‘[T]here is practically universal agreement that a major purpose of th[e First] Amendment was to protect the free discussion of governmental affairs’ ….”) (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). Veeck plainly has the right to stand in a public square and recite a complete version of the building codes with which the public must comply, particularly given that SBCCI “encourages local governments to enact its codes into law.” Slip Op. at 2. Speaking on the Internet soapbox is not different in kind from speaking in the public square, and Veeck has a free speech right to do so.

Finally, the panel majority departed from Supreme Court and First Circuit precedents because of a tenuous and unsupported economic theory that a judicially expanded copyright is somehow necessary to create incentives for private code-writers and to cut government costs. The panel majority embraced, without factual or economic support, a far-fetched claim that “local and state government and federal authorities throughout the United States . . . do not otherwise have the necessary facilities and resources to develop these safety standards.” Slip Op. at 15. But the public always bears the cost of code development, and that cost is significantly higher when private companies are allowed to charge the public for access to the law. Even worse, fewer will access the law when there are private restrictions – resulting in avoidable tragedies due to building code violations.

Amici respectfully submit the accompanying brief in the expectation that, if rehearing en banc is denied, this case will likely be reviewed by the Supreme Court. Amici therefore urge an en banc sitting of the Fifth Circuit to hear and decide this case.

For the reasons stated herein, Amici request leave to file the accompanying brief for rehearing en banc.

I hereby certify that two true and correct copies (on paper and computer disk) of the foregoing document were served, by delivery to Federal Express (third-party commercial carrier) for overnight delivery, postage/shipping prepaid, to counsel of record listed below, pursuant to Fed. R. App. P. 25(b), and that the same document was filed by delivering an original and twenty copies (on paper and computer disk) to Federal Express (third-party commercial carrier) for overnight delivery, postage/shipping prepaid, to the Clerk of the Court, pursuant to Fed. R. App. P. 25(a)(2)(B)(ii), on this __ day of February, 2001, at the following addresses:

1 Amici have contacted all parties concerning this motion, pursuant to Fifth Circuit Rule 27.1. Counsel for Appellant Veeck does not oppose the motion, but counsel for Appellee SBCCI opposes it and is expected to file an opposition.