acting to protect the absolute right of Congressmen to speak and debate.
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 for the purpose of news gathering presents a wholly different situation. Access to news, if unreasonably or arbitrarily denied by congressional action or publishers meeting under congressional auspices, constitutes a direct limitation upon the content of news, as recognized in Branzburg v. Hayes, 408 U.S. 665, 681, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972). See also Niemotko v. Maryland, 340 U.S. 268, 71 S. Ct. 325, 95 L. Ed. 267 (1951); Washington Post Co. v. Kleindienst, 357 F. Supp. 770, reaffirmed after remand, 357 F. Supp. 779 (D.D.C. 1972); McCoy v. Providence Journal Co., 190 F.2d 760 (1st Cir. 1951). Certainly the exclusion of particular reporters from the news presented each morning at on-the-record press conferences, which hundreds of other reporters are eligible to attend, affects the content and quality of the news that is reported as well as access to the sources of news. Moreover, it is important to recognize that this is not a single, sporadic refusal of access. Exclusion from the press galleries constitutes a permanent disadvantage with regard to the gathering of news and has a significant impact when measured in terms of the First Amendment, both upon the publication excluded and others in similar situations. See Healy v. James, 408 U.S. 169, 183, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972).
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 (M.D.Tenn.1965). Cf. Healy v. James, supra, at 184-194. Such rules must, among other things, be so fashioned that due process is provided prior to exclusion, with opportunity for adequate impartial review wherever a publication is excluded. See Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).
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.