The opinion of the court was delivered by: JONES
Plaintiffs, Thomas Forcade and Robert Sherrill, bring this action challenging the refusal of defendants to admit them to White House press briefings and conferences. In their motion for summary judgment, they argue that their First Amendment right to gather information has been abridged by the discriminatory denial of press passes without apparent standards or compelling justification. They also argue that their Fifth Amendment procedural due process rights have been violated by the failure of the Secret Service to inform them of the reasons for their exclusion, to allow them an opportunity to be heard, or to apply identifiable standards in denying their applications for press passes. They further argue that they are entitled to a de novo determination in this Court of the propriety of defendants' action. Plaintiffs ask the Court to declare unlawful defendants' refusal to grant them press passes and to enjoin the continuing refusal to grant them press passes and to enjoin the continuing refusal to grant accreditation to the plaintiffs.
Defendants move to dismiss, arguing that the First Amendment does not give plaintiffs a right of entry into the White House and that summary procedures do not violate plaintiffs' due process rights. In the alternative, defendants contend that the Court should grant them summary judgment based upon the protective and investigative files submitted to the Court.
Thomas Forcade is a reporter in the Alternate Press Syndicate (APS) which is an international news service that represents more than 200 subscribing newspapers. According to the complaint, he has covered national political affairs since 1968, and, since 1971, has been APS's national affairs correspondent in Washinton. He has been a member of the House and Senate Press Galleries since October, 1971, holds press credentials issued by the Washington, D.C. police department, and was accredited as a national reporter at the 1972 Democratic and Republican National Conventions. On January 20, 1972, plaintiff Forcade covered the President's State of the Union message from the press gallery of the House of Representatives.
Since 1965, Robert Sherrill has been Washington correspondent for The Nation. He has been a member of the House and Senate Periodical Press Galleries since 1966.Mr. Sherrill has written more than 66 articles and numerous signed and unsigned editorials for The Nation and other magazines and newspapers; he has also written six books, two of which were listed on the New York Times list of best books of the year. It was also disclosed after this action was filed that Sherrill was on the original White House "enemies list." See Exhibit C to Pls' Motion for Summary Judgment.
The original defendants in this action were James J. Rowley, Director of the Secret Service, John W. Warner, Assistant to the Director of the Secret Service, George P. Shultz, Secretary of the Treasury, and Ronald L. Ziegler, Press Secretary to the President. Pursuant to Rule 25(d), F.R.C.P., H. Stuart Knight, present Director of the Secret Service, William E. Simon, present Secretary of the Treasury, and Ronald H. Nessen, present presidential press secretary, are automatically substituted for the named defendants.
On May 28, 1971, plaintiff Forcade made written application to defendant Ziegler for a pass to attend White House press conferences and briefings. Plaintiff Forcade was informed in August 1971 that his application for a White House press pass would not be processed until he had become a member of the Senate and House Periodical Press Galleries. He received the Senate and House credentials in October 1971. It is not clear from the pleadings or the memoranda whether the receipt of these credentials was ever made known to the defendants.
After obtaining credentials for membership in the Periodical Press Galleries of the Senate and House of Representatives, plaintiff Sherrill on May 3, 1966, was denied White House press credentials by the Secret Service. He has been told that his denial is continuing in effect.
Neither plaintiff has ever received more than a minimal summary explanation for the denial of their applications. In a letter dated January 6, 1972, counsel for plaintiffs asked defendant Ziegler to explain if and why the plaintiffs had been denied press passes. Exhibit A to Complaint. In a letter dated February 11, 1972, defendant Warner, Assistant to the Director of the Secret Service, responded that plaintiff Sherrill had been denied accreditation on May 3, 1966, and that plaintiff Forcade had been denied accreditation on November 14, 1971. Exhibit B to Complaint. The only explanation given was that the passes were denied "for reasons of security." On June 26, 1972, Eugene T. Rossides, Assistant Secretary of the Treasury, in a letter to plaintiffs' counsel, referred to two incidents that impliedly influenced the decision to deny the plaintiffs' applications for press passes:
For Mr. Sherrill's information, he has been arrested and fined for physical assault in the State of Florida. For Mr. Forcade's information, please refer him to the New York Times, May 14, 1970, p. 8.
After failing to obtain documents explaining the denial of the press pass applications, plaintiffs appealed, in a letter dated September 17, 1972, to Assistant Treasury Secretary Rossides to overturn the denials. Exhibit H to Complaint. On October 2, 1972, Rossides refused to reverse the previous decisions and reiterated that the press pass applications were denied "for reasons relating to the security of the President and the members of his immediate family." Exhibit I to Complaint.
Defendants agree that plaintiffs met all requirements for the issuance of press accreditation except for a security clearance. Def's Statement of Material Facts para. 2. They also admit that plaintiffs' applications were summarily denied, that there were no written administrative regulations in effect at the time the requests by plaintiffs for press passes were denied, and that no similar regulations are in effect now. See Answer, paras. 12, 20.
III. DOCUMENTS PRODUCED JANUARY 31, 1975
The FBI and Secret Service files produced by defendants (see note 1, supra) do not change the fundamental issues before the Court; however, they do provide substantial and helpful background to a determination of the issues. Deleted material, which is not included in the ensuing discussion, occurs only in the files applicable to plaintiff Forcade.
The decision to deny Sherrill's application for a press pass was based upon two incidents, according to a May 3, 1966 memorandum addressed to Bill Moyers (then the presidential press secretary) from Special Agent in Charge Ronald C. Towns. The more serious incident involved an assault upon John E. Evans, press secretary to Florida Governor Ferris Bryant, on October 6, 1964. According to the various reports of the Treasury Department Intelligence Division, Sherrill assaulted Evans without provocation in the hallway of the Florida State Capitol Building. Evans speculated that the reason for the assault was a response he had written to an earlier article by Sherrill in June 1964, in which Evans had stated that the Sherrill article was substantially incorrect. According to Evans, Sherrill accused Evans of calling him a liar when he saw him in the hallway, and as the confrontation heated, Sherrill struck Evans on the jaw. Sherrill was charged with assault and battery, he pleaded nolo contendere, and was fined $200. The Secret Service interviewed Evans, Governor Bryant, the Tallahassee Sheriff's Department, but never, by written or oral communication, contacted Sherrill to ascertain his version of the offense.
The second incident occurred in October 1962, when Sherrill allegedly assaulted Robert Rich, principal of Fort Worth High School, at a public hearing before the Texas House Migrant Committee. The plaintiff apparently skipped bond on charges arising out of the incident, has never been prosecuted for the incident, but will be if he ever returns to the State of Texas. The information regarding this assault was provided by Evans, three newspaper articles, and a telegram addressed to Evans from the editor of a Lubbock, Texas newspaper. No other persons were contacted or interviewed to substantiate the incident, nor was plaintiff Sherrill ever requested to submit an explanation of the incident.
Finally, at least twice in the files, charges that Sherrill was "mentally unbalanced" were made, once by Governor Bryant and once in a memorandum from one "eed" to Special Agent in Charge Wong. Neither charge is substantiated by any facts, analysis, medical opinion, or explanation. Plaintiff Sherrill was never requested to comment upon the accusations.
Unlike Sherrill's case, the reasons for denial of Forcade's application are nowhere specifically set forth. It is therefore difficult to determine which incidents in the rather voluminous records applicable to Forcade were used as a basis to deny the application.
Forcade has been known by at least three different names during the period from 1969 to 1974, which the FBI and Secret Service files encompass. His first arrest during that period was under the name Gary Kenneth Goodson on June 19, 1969 for possession of LSD in Phoenix, Arizona. That charge was dismissed on November 10, 1969, for insufficient evidence. On November 13, 1969, Forcade again was arrested in San Diego for burglary and desecration of the American flag while attending a convention of underground press persons. Although the date is unclear, the charges were shortly thereafter dropped by the San Diego authorities. There is also an accusation that at the same convention Forcade became angered at one of the participants and hurled a glass of water at him. No charges evolved from that incident.
On May 13, 1970, at a hearing before the United States Commission on Obscenity and Pornography, when asked about his feelings about an issue, Forcade hurled a pie at Commissioner Otto N. Larson. He then read a prepared 1,000 word statement protesting the Commission's existence. No charges resulted from the incident.
During the demonstrations in Washington, D.C. in the summer of 1971, Forcade publicly stated that he planned to hold a "massive marijuana smoke-in" at the Washington Monument on July 4, 1971. No action was taken against Forcade for the statements and it does not appear in the record whether the "smoke-in" ever occurred.
The majority of the records produced concern Forcade's relationship with and activities in the Youth International Party (popularly known as the Yippies), the spin-off Zeitgeist International Party (popularly known as the Zippies), the Students for a Democratic Society (SDS), and the May Day Committee. It appears from the record that Forcade was an active member and leader within the Yippie movement until May 26, 1972 when he was expelled by a committee of the membership. Until that time, the records state that he had advocated the use of violence at the Democratic National Convention in Miami in 1972, and that he had stated on more than one occasion that the United States Capitol Building is "wide open for another bombing" similar to the celebrated restroom bombing that had earlier occurred. At the time of his expulsion from the Yippies, it was reported by an informant that he acted like "a wild man" and allegedly "carved up" a wall with scissors during the May 26 meeting. On May 30, 1972, Forcade and his followers attempted to physically penetrate the Yippie office in Miami, but were repulsed by a "wedge" formed by Abbe Hoffman and his followers. The FBI reports also list several other instances during this summer period arising out of the Yippie/Zippie split which can only be characterized as pranks.
Three other criminal violations were allegedly committed by Forcade during the remainder of 1972. On August 23, 1972, Forcade was arrested after a van which he was driving was stopped by police. There were approximately 14 other persons in the van at the time, and the police found a five-gallon can of gasoline along with wax-and-wick devices which allegedly were incendiary devices for the gasoline can. On February 8, 1973, Forcade was indicted for violations of the National Firearms Act, 26 U.S.C. §§ 5861(c), 5871, arising out of the August 23, 1972 arrest. On March 29, 1973, the charges were dismissed by Judge Fay of the United States District Court for the Southern District of Florida after a two day trial for insufficient evidence. Second, on October 25, 1972, charges brought against Forcade for allegedly burglarizing a ten-foot high portrait of President Johnson were dismissed for failure of the complaining witness, the Democratic National Committee, to respond to a subpoena. Third, on October 12, 1972, Forcade was arrested in New York City for criminal trespass and harassment under the alias of ...