CONSUMERS UNION OF U. S., INC. v. PERIODICAL CORRESP. ASS'N Civ. A. No. 1328-73.
365 F.Supp. 18 (1973)
CONSUMERS UNION OF UNITED STATES, INC., Plaintiff, v. PERIODICAL CORRESPONDENTS' ASSOCIATION et al., Defendants.
United States District Court, District of Columbia.
October 11, 1973.
Peter H. Schuck, Carol A. Cowgill, Washington, D. C., for plaintiff; Marvin M. Karpatkin, Ohrenstein & Karpatkin, New York City, of counsel.
Peter R. Reilly, Asst. U. S. Atty., Washington, D. C., for defendants.
GESELL, District Judge.
This is a declaratory judgment action by Consumers Union of United States, Inc., naming the Periodical Correspondents' Association and the Sergeants-at-Arms of the United States Senate and of the House of Representatives as defendants. The issues are before the Court on cross-motions for summary judgment and have been fully briefed and argued.
Consumers Union, publisher of a monthly magazine known as Consumer Reports, has been denied accreditation to the periodical press galleries of the Senate and House and claims that this action, taken in reliance on Rule 2 of the Rules Governing the Periodical Press Galleries, is unconstitutional. There is no disagreement as to the relevant facts.
In order to facilitate press coverage of congressional deliberations, both Houses of Congress have each set aside four separate gallery sections for periodicals, radio and television, newspapers, and press photographers. By rules adopted pursuant to Article I, § 5 of the United States Constitution,
The defendant Periodical Correspondents' Association, for example, administers the Periodical Press Galleries of both Houses. As of March 10, 1973, it consisted of 525 members chosen from the 126 accredited publications.
Members of the Periodical Correspondents' Association enjoy a variety of advantages over those reporters who are unable to obtain admission. They are provided with special seating in the Periodical Press Galleries, and therefore do not have to contend for space in the public galleries. Congress furnishes the Association a variety of other facilities, including telephones and typewriters in a room adjacent to the press galleries, and employs four administrators to assist the Association in maintaining these facilities. Members are also permitted entrance to the Senate Presidents'
There are ample periodical press facilities. Many publications have a large number of members entitled to the privileges of the galleries.
Consumer Reports is a monthly periodical published by plaintiff with a circulation of nearly two and a quarter million readers. Plaintiff is a non-profit organization which receives virtually its entire revenue from Consumer Reports, which sells at newsstands and by subscription but has no advertising. A review of recent publications, of which the Court takes notice, discloses reports on the quality and attributes of named products and articles and comment of interest to consumers. On November 29, 1972, Mr. Gilbert Thelen, Jr. submitted to the Executive Committee of the Periodical Correspondents' Association a written application for membership as a representative of Consumer Reports. The application was rejected by the Committee on the ground that Consumer Reports is not "owned and operated independently of any industry, business, association, or institution," as required by Rule 2 of the Rules Governing Periodical Press Galleries.
Arguing that the rejection of Consumer Reports was arbitrary, plaintiff asked the Executive Committee to reconsider its decision, but Mr. Thelen's application was again rejected on April 16, 1973. On May 18, plaintiff sought review by the Speaker of the House and the Senate Committee on Rules and Administration. The Senate Committee concurred in the rejection, and the Speaker has made no reply during the four months since plaintiff's request.
Defendants concede that no written guidelines exist for interpreting the indefinite requirement contained in Rule 2. However, during plaintiff's pursuit of its administrative remedies, the basis for its rejection was clarified in a number of significant particulars. Thus, Senator Cannon, Chairman of the Committee on Rules and Administration, was advised by the Association as follows:
This analysis has been summarized by Donald E. Smith, Chairman of the Association's Executive Committee, who characterized plaintiff in the following terms:
The record thus fully supports Mr. Smith's statement that
Under the fuzzy tests apparently applied, such periodicals as the Rippon Society's Rippon Forum, the Navy League's Sea Power, and the National Welfare Rights Organization's Welfare Fighter have been denied admission to the Association, despite the unquestionable interest that these publications have in keeping abreast of congressional activities.
Plaintiff points out that many of the Association's present members would appear to fall within the broad scope of Rule 2, both as written and as interpreted by the Committee. For example, Time, Inc. employs a lobbyist in order to advance its views concerning congressional action on postal rates, and such organizations as Modern Tire Dealer, National Timber Industry, and the Military Retirees Journal undoubtedly represent the views of special interest groups. Other members include Automotive News, Banking Industry Magazine, Drug Topics and Drug Trade News, Food Processing & Marketing, Investment Dealer's Digest, Leather & Shoes Magazine, Pacific Shipper, and Western Stamp Collector.
It is also significant that, of the four press galleries in each House, only the periodical gallery is closed to "advocacy" groups or media not "owned and operated independently of any . . . institution."
Since the controversy as to plaintiff's accreditation continues and the issues are significant, the Court must attempt to resolve the dispute.
Before reaching the merits of plaintiff's claim, the Court must determine whether the issues raised are justiciable. A claim is justiciable if "the duty asserted can be judicially identified
However, the Court will not reach that question if the action in which it is presented is barred by legislative immunity. Although the defendants did not assert an immunity in their pleadings, the Court raised the issue sua sponte in the course of oral argument because of the deference owed by the judiciary to a coordinate branch of government. The Speech and Debate Clause
The defendant Association and Sergeants-at-Arms are undoubtedly congressional agents acting at the specific behest of Congress and pursuant to its rules. However, their conduct in barring the representatives of certain publications from the periodical press galleries and admitting others neither constitutes an integral part of nor has been shown to have a significant impact upon the proceedings on the floor of either House. Defendants have failed to make a showing that if members of the press whose publications advocate a particular point of view are admitted to the galleries, congressional proceedings will be impeded or disrupted.
It is not for the U. S. Attorney or the Court to speculate about the underlying reasons prompting the exclusion here attempted. The justification, if one exists, must affirmatively appear from the reasons given for legislation and its implementing rules. There is nothing of substance in these materials supporting the action and therefore no basis for assuming, contrary to obvious undisputed facts, that the Houses of Congress were
The fact that Association members have access to anterooms adjacent to the floor of each House and closed to the general public could present a special problem. If either House of Congress determined that the informal discussions carried out in those rooms constitute an integral part of the legislative deliberation, the judiciary could not properly entertain a suit against any person enforcing rules limiting access to such rooms. However, that issue is not before the Court. Admission to the Association or to the press galleries need not be dependent upon access to the anterooms, so whatever immunity might attach to activities concerning those rooms cannot extend to other press facilities, privileges or organizations. It is equally clear that rules governing the personal conduct of members while in the galleries or exercising the attendant privileges of such membership, as opposed to rules designed to control what members write or believe, are beyond judicial scrutiny and the Houses of Congress can take appropriate action of this kind.
Accordingly, the claim here presented is justiciable and the Court must turn to the merits.
III. The Merits
Plaintiff's principal contention on the merits is that Rule 2 of the Rules Governing Periodical Press Galleries, on its face and as interpreted by the Executive Committee of the Association and the relevant congressional authorities, violates plaintiff's First Amendment right to freedom of the press and its Fifth Amendment right to due process and the equal protection of the laws.
In applying the facts to these serious constitutional claims it is unnecessary to expatiate at any length upon the role of the press in our society. The press must be free to criticize officials and to discuss public affairs with impunity. Halfway measures will not protect this precious freedom. A free press is undermined if the access of certain reporters to facts relating to the public's business is limited merely because they advocate a particular viewpoint. This is a dangerous and self-defeating doctrine.
The Courts have a responsibility to preserve the freedom of the press by barring the imposition of limitations upon the equal access of newsmen to facts of public consequence unless such limitations are clearly justified by a legitimate and demonstrable government interest where freedom of the press or other First Amendment rights are involved. Moreover, the government interest raised in defense of such limitations must be an important or "compelling" one. Police Dept. of the City of Chicago v. Mosely, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). The means selected for furthering that interest must be no more restrictive of individual rights than is reasonably necessary. Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). And the language of the classification may not be so vague or broad that it unnecessarily chills the exercise of those rights or provides insufficient guidance to those who must administer the challenged legislation. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L. Ed.2d 830 (1973).
Defendants seek to confuse and minimize these issues. They suggest that the First Amendment is not violated because there is no effort to control the content of news, that the galleries are not open to the general public, and that those excluded from the press galleries may gain access to news concerning congressional activities by using the public galleries and other resources available. Upon analysis these contentions are wholly without merit. While it is perfectly true that reporters do not have an unrestricted right to go where they please in search of news, Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L. Ed.2d 179 (1965), the elimination of some reporters from an area which has been voluntarily opened to other reporters
There should be no glossing over what this record discloses. Under a broad, generalized congressional delegation, authority has been given certain newsmen to prevent other newsmen from having access to news of vital consequence to the public. As a result, a group of established periodical correspondents have undertaken to implement arbitrary and unnecessary regulations with a view to excluding from news sources representatives of publications whose ownership or ideas they consider objectionable. Responsible officials of the House and Senate have not forestalled such discrimination by promulgating clear eligibility requirements, see Cox v. Louisiana, 379 U.S. 536, 555-558, 85 S.Ct. 453, 13 L. Ed.2d 471 (1965), nor apparently have they developed any other means of checking abuse of the Association's delegated authority.
The fact that the galleries for newspapermen and radio and television correspondents have operated with much greater liberality and consequent regard for the demands of the First Amendment serves simply to emphasize the arbitrariness of those managing the periodical galleries. All types of news compete and all types of publications are entitled to an equal freedom to hear and publish the official business of the Congress. Quad-City Community News Service, Inc. v. Jebens, 334 F.Supp. 8 (S.D.Iowa 1971). Cf. Kleindienst v. Mandel, 408 U.S. 753, 768-769, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). If members of the Soviet press and press representatives of large, influential, politically active corporations can sit in the other press galleries, there can be no justification for excluding those who advocate the special interests of consumers from the periodical galleries.
The situation disclosed by this undisputed record flouts the First Amendment. It matters not that elements of the press as well as Congress itself appear to have been the instruments for denial of constitutional rights in this instance, for those rights limit the actions of legislative agents and instrumentalities as surely as those of Congress itself. Cf. Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932).
There must be an end to this self-regulation by indefinite standards and artificial distinctions developed to censor the ownership or ideas of publications. The Constitution requires that congressional press galleries remain available to all members of the working press, regardless of their affiliation. Exclusion of a publication from the galleries can only be sanctioned under carefully drawn definite rules developed by Congress and specifically required to protect its absolute right of speech and debate or other compelling legislative interest. See Kovach v. Maddux, 238 F.Supp. 835
The exclusion of Consumer Reports from accreditation to the periodical galleries of the Senate and House violates the First and Fifth Amendments to the Constitution.
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