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CONSUMERS UNION OF UNITED STATES v. PERIODICAL COR

October 11, 1973

CONSUMERS UNION OF UNITED STATES, INC., Plaintiff,
v.
PERIODICAL CORRESPONDENTS' ASSOCIATION et al., Defendants


Gesell, District Judge.


The opinion of the court was delivered by: GESELL

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, ยง 5 of the United States Constitution, *fn1" the Senate and House have delegated the authority to administer these galleries and promulgate regulations governing them to the Senate Committee on Rules and Administration and to the Speaker of the House, respectively. *fn2" The Senate Committee and the Speaker have, in turn, adopted regulations for the different press galleries. These are published annually in the Congressional Directory, along with the names of the accredited organizations and their approved representatives. *fn3" They have also authorized the formation of separate correspondents' associations for each type of gallery, composed of newsmen approved for admission to the press galleries, and empowered them to pass upon applications for admission and otherwise to administer the press facilities. *fn4"

 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. *fn5" The Association has a seven-man Executive Committee, elected by the membership, which is authorized to issue credentials to reporters whose applications are considered in compliance with the Rules Governing Periodical Press Galleries adopted by the Speaker and the Senate Committee on Rules and Administration. Final authority to grant or reject such applications is lodged in the Speaker and the Senate Committee, but it is rarely exercised.

 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' Room and the House Speaker's Lobby, where they may seek or arrange interviews with Senators and Congressmen. Press tables are provided for members during congressional committee meetings open to the public. Another most significant privilege is involved. Members of the press galleries are granted exclusive permission to attend on-the-record daily press conferences held by the Senate leadership and the Speaker of the House. Membership also greatly facilitates access to press conferences at the White House and administrative agencies.

 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. *fn6"

 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:

 
"Consumer Reports" does not appear to qualify for admission under Rule II of the Rules Governing the Galleries.
 
In part, that rule states that no publication can be eligible for admission if it is published by "an association or institution." "Consumer Reports" is published by Consumers Union, a nonprofit organization which is a self-proclaimed advocate of consumer interests and, among other activities, testifies before Congressional ...

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