UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia -- (D.C. Civil Action 1328-73).
MacKinnon and Robb, Circuit Judges, and Christensen,* Senior District Judge for the District of Utah. Opinion for the Court filed by Senior District Judge Christensen.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CHRISTENSEN
This is an appeal from a declaratory judgment by which the district court held that refusal of the Executive Committee of the Periodical Correspondents' Association (Association), one of the appellants herein, to accredit appellee's Consumer Reports and its designated representative to the Periodical Press Galleries of the Congress of the United States was a denial of equal protection and due process, and that a portion of Rule Two of the congressional rules governing such galleries violated the freedom of the press guarantee of the First Amendment to the Constitution of the United States. Consumers Union of United States, Inc. v. Periodical Corresp. Ass'n, 365 F. Supp. 18 (D.C.D.C.1973).
The appellant Association is an unincorporated membership association composed of all periodical correspondents accredited for membership in the Periodical Press Galleries of the Congress, and the other appellants, William H. Wannall and Kenneth R. Harding, are Sergeants-at-Arms of the Senate and House of Representatives, respectively. The district court's judgment is challenged by them here because of its failure to recognize that the case was not justiciable, and upon the contention, in any event, that denial of accreditation was constitutional, reasonable and in accordance with valid internal rules of the Congress.
Consumers Union of United States, Inc. (Consumers Union) is a reputable non-profit membership organization established in 1936 to foster the interests of consumers and to provide them with information and counsel on consumer goods and services. The organization derives a substantial portion of its income from the sale of its publications, primarily its monthly magazine, Consumer Reports, and the bulk of its income is expended in the production of these publications. Consumer Reports, with a circulation of 2.2 million readers, accepts no advertising nor does it accept product samples for testing and evaluation, but it includes reports of independent product evaluations conducted at its laboratory facilities, together with news items and news analyses of general interest to consumers. At the trial the government did not contend that it was a "lobbying group",1 among the connections along with advocacy barring admission to the galleries under the Association's interpretation2 of the Rules Governing Periodical Press Galleries (infra ) slip pages 1265-1267, U.S.App.D.C. pp. - , F.2d pp. However, there seems little question but that Consumers Union is a group committed to the advocacy of consumers' interests,3 and that its Consumer Reports was not "published for profit and supported chiefly by advertising or by subscription, and owned and operated independently of any industry, business, association, or institution", requirements for accreditation set out in Rule 2 (infra ) and relied upon by the Association in denying appellee's application.4
Art. I, § 5, cl. 2 of the Constitution provides that "each House may determine the Rules of its Proceedings . . .." Under this broad grant of authority each House has exercised power to extend to those members of the press determined eligible, and otherwise to deny, admission to the floors and galleries of Congress.
When Congress first convened in 1789, "the Legislative as well as Executive sittings of the Senate were held with closed doors " (1 Annals of Cong. 16 (1789)), but the House of Representatives admitted the press to the floor so they might report the debates of the House (1 Annals of Cong. 952-56 (1789)). In 1794, the Senate authorized limited access to its galleries by the public and in 1802 resolved that "any stenographer or notetaker, desirous to take the debates of the Senate on Legislative business, may be admitted for that purpose at such place, within the area of the Senate Chamber, as the President shall allot." (11
Regulations governing the management of the galleries, now separated into the Press Galleries, Radio and Television Correspondents' Galleries, Periodical Press Galleries, and Press Photographers' Gallery, are promulgated by Congress, which retains the right of final approval of applications for admission to the galleries. The House and Senate Periodical Press Galleries are governed by identical rules published in the Congressional Directory and signed by the Speaker of the House of Representatives and by the Chairman of the Senate Committee on Rules and Administration.
Rule XXXIV, Para. 2 of the Standing Rules of the Senate,5 and Rule XXXIV, Para. 2 of the Rules of the House of Representatives,6 authorize
" *fn1. Persons desiring admission to the Periodical Press Galleries of Congress shall make application to the Speaker, as required by rule XXXIV of the House of Representatives, and to the Committee on Rules and
" *fn2. The applications required by rule 1 shall be authenticated in a manner that shall be satisfactory to the executive committee of the Periodical Correspondents' Gallery who shall see that the occupation of the galleries is confined to bona fide and accredited resident correspondents, newsgatherers, or reporters of reputable standing who represent one or more periodicals which regularly publish a substantial volume of news material of either general or of an economic, industrial, technical, or trade character, published for profit and supported chiefly by advertising, and owned, and operated independently of any industry, business, association, or institution; and it shall be the duty of the executive committee at their discretion to report violation of the privileges of the galleries to the Speaker, or to the Senate Committee on Rules and Administration, and pending action thereon the offending correspondent may be suspended.
"5. The Periodical Press Galleries shall be under the control of an executive committee elected by members of the Periodical Correspondents' Association, subject to the approval and supervision of the Speaker of the House of ...