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CNN v. ANDERSON

October 25, 1989

CABLE NEWS NETWORK, et al., Plaintiffs,
v.
DONALD K. ANDERSON, Clerk of the House of Representatives, et al., Defendants


Joyce Hens Green, United States District Judge.


The opinion of the court was delivered by: GREEN

JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE

 Plaintiffs Cable News Network, Inc., Capital Cities/ABC, Inc., CBS Inc., and National Broadcasting Company, Inc. bring the instant action seeking to enjoin defendants from preventing plaintiffs from providing television coverage of the open hearings before the Subcommittee on Employment and Housing of the Committee on Government Operations of the United States House of Representatives ("the Subcommittee"). Presently pending before the Court is plaintiffs' motion for permanent injunction. For the reasons set forth below, the motion is denied and the case dismissed.

 I. BACKGROUND

 The Subcommittee has been conducting open hearings since May 8, 1989 on the subject of allegations of widespread improprieties in the operation of the Department of Housing and Urban Development ("HUD") during the tenure of former Secretary Samuel R. Pierce, Jr. *fn1" On May 25, 1989, former Secretary Pierce testified before the Subcommittee. That testimony was covered by television and was presented by C-Span in its entirety. *fn2" When Pierce failed to appear at a scheduled hearing on September 15, 1989, he was served with a subpoena (issued September 20, 1989) to appear for further testimony on September 26, October 27, and November 3, 1989. Plaintiffs planned to cover the September 26, 1989 hearings with television cameras and to broadcast all or part of the hearings. *fn3" On Friday afternoon, September 22, 1989, Pierce announced that he did not wish his testimony to be available for broadcast. In a letter to Representative Thomas Lantos, Chairman of the Subcommittee, copies of which were sent to plaintiffs, Pierce's attorney invoked House Rule XI(3)(f)(2), demanding that cameras be excluded from the September 26, 1989 hearing and subsequent hearings involving Pierce. Rule XI(3)(f)(2) provides:

 
No witness served with a subpoena by the committee shall be required against his or her will to be photographed at any hearing or to give evidence or testimony while the broadcasting of that hearing by radio or television is being conducted. At the request of any such witness who does not wish to be subjected to radio, television, or still photograph coverage, all lenses shall be covered and all microphones used for coverage turned off.

 Plaintiffs filed the instant complaint on September 25, 1989, alleging that defendants' action barring broadcast of the proceedings violates the First Amendment and the equal protection component of the Due Process Clause of the Fifth Amendment. On that same day, the Court denied plaintiffs' motion for a temporary restraining order.

 Pierce appeared before the Subcommittee on September 26, 1989 as scheduled. Although the hearings were open to the print press and the public, television camera and radio broadcast of his testimony were not permitted. On September 27, plaintiffs filed an amended complaint seeking to enjoin defendants from enforcing Rule XI(3)(f)(2) against plaintiffs and from preventing plaintiffs from engaging in television camera and radio coverage of the open proceedings to be held in the future. By consent of all parties, plaintiffs' motion for preliminary injunction, filed with its original complaint, was converted to a motion for permanent injunction. A hearing on that motion was held on October 12, 1989.

 The crux of plaintiffs' argument is that there is no government interest supporting Rule XI(3)(f)(2), whose effect is to permit subcommittee witnesses to manipulate media coverage. Plaintiffs assert that the rule arbitrarily bars television and radio coverage of the otherwise open hearings and therefore violates the First Amendment rights of plaintiffs to gather, and the public to receive, vital information about the functioning of the federal government. Plaintiffs are not asserting an absolute right to televise committee hearings in the House of Representatives. Rather, they contend that the House may not allow televised coverage of those hearings and arbitrarily delegate to a private party -- the subpoenaed witness -- the right to determine whether television camera coverage will continue. Plaintiffs argue that any legitimate interest of the House is fully served by a rule, similar to that in effect in the Senate, *fn4" that gives House committees, rather than witnesses subpoenaed to testify before them, the power to determine whether television cameras should be excluded.

 Defendants argue that the Rulemaking Clause and the Speech or Debate Clause of the Constitution render plaintiffs' challenge to the enforcement of House Rule XI(3)(f)(2) non-justiciable. Arguing in the alternative, defendants maintain that should the Court determine that the issue is justiciable, the rule withstands First Amendment scrutiny. For the following reasons, the Court agrees with defendants that the Speech or Debate Clause bars judicial review of House Rule XI(3)(f)(2) and therefore expresses no opinion as to the merits of plaintiffs' First Amendment argument.

 A. Justiciability

 A case may involve a nonjusticiable political question if, among other things, "a textually demonstrable constitutional commitment of the issue to a coordinate political department" is involved. Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). As the Supreme Court stated in Powell v. McCormack, 395 U.S. 486, 516-17, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969):

 
First, we must decide whether the claim presented and the relief sought are of the type which admit of judicial resolution. Second, we must determine whether the structure of the Federal Government renders the issue presented a "political question" -- that is, a question which is not justiciable because of the separation of powers provided by the Constitution.

 Although courts have not been consistent in their terminology, referring to the concept as "non-justiciability," "separation of powers," and "political question," it is clear that there is a class of issues for which the courts refuse to exercise their power of judicial review. *fn5" In the instant case, defendants assert that the Rulemaking Clause and the Speech or Debate Clause of the Constitution forbid enjoining the ...


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