Sigma Delta Chi v. Speaker, Maryland House of Delegates

Levine, J., delivered the opinion of the Court., This appeal rises out of an action brought against the President of the Maryland Senate and the Speaker of the House of Delegates, for a prohibitory injunction enjoining them from preventing attendance at the sessions of their respective houses by news reporters in the possession of tape-recording devices. We are called upon to decide the constitutionality of certain legislative rules dealing with “order and decorum” in both chambers. 1 ³ Appellants, other than Sigma Delta Chi, a national journalism fraternity, allege that they are engaged in “reporting news to the public by various means,” including newspaper, radio and television. They further allege that “speed and accuracy are essential attributes of media news services,” without which they suffer competitively. Tape recorders, they say, will “insure speed and accuracy in the reporting of news.” The chancellor sustained, without leave to amend, a demurrer to the bill of complaint.

This appeal follows from that ruling.* 2 Three specific constitutional claims are advanced by-appellants: (1) That the legislative action violates freedom of the press guaranteed by the First Amendment of the Federal Constitution and Art. 40 of the Declaration of Rights of the Maryland Constitution; 3 (2) that their rights under the Due Process Clause of the Fourteenth Amendment of the United States ⁴ Constitution and Art. 23 of the Declaration of Rights are being violated; and (3) that the action of appellees violates the Equal Protection Clause of the Fourteenth Amendment of the ■ United States Constitution. Appellees counter these arguments by urging that the doctrine of separation of powers, provided for in the State Constitution, precludes judicial inquiry into these legislative rules. We find it unnecessary to reach this issue, since, for reasons that follow, we are of the view that the rules do not violate appellants’ First and Fourteenth Amendment rights. I We consider first whether the prohibition against tape recorders on the floor of the General Assembly violates the “free press” rights of appellants.

This Court has recognized the interplay between the First Amendment and Art. 40 of the Declaration of Rights. We have said that the legal effect of the guarantee of freedom of speech and press ordained in Art. 40 is substantially the same as that enunciated in the First Amendment. With this in mind, we have treated Art. 40 as being in pari materia with the First Amendment, Freedman v. State, 233 Md. 498, 505 , 197 A. 2d 232 (1964), rev’d on other grounds, 380 U. S. 51 , 85 S. Ct. 734 , 13 L. Ed. 2d 649 (1965). Hence, freedom of the press, as thus guaranteed, has been zealously safeguarded in Maryland, Greenbelt Coop.

Pub. Ass’n v. Bresler, 253 Md. 324 , 252 A. 2d 755 (1969), rev’d on other grounds, 398 U. S. 6 , 90 S. Ct. 1537 , 26 L. Ed. 2d 6 (1970); Prucha v. Weiss, 233 Md. 479 , 197 A. 2d 253 (1964), cert. denied, 377 U. S. 992 , 84 S. Ct. 1916 , 12 L. Ed. 2d 1045 (1964); Negley v. Farrow, 60 Md. 158 , 45 Am. R. 715 (1883); and has been held to preclude the state from adopting any form of prior restraint upon printed publications or their circulation, Sports Daily v. Public Service Comm., 179 Md. 355, 361 , 18 A. 2d 210 (1941). These rights, of course, encompass radio and television stations within their ambit, Baltimore v. A. S. Abell Co., 218 Md. 273 , 145 A. 2d 111 (1958). ⁵ We are confronted here with a problem that differs from the traditional concept of “prior restraint.” No restriction upon “freedom of expression” is asserted, Kingsley Books, Inc., v. Brown, 354 U. S. 436, 444 , 77 S. Ct. 1325 , 1 L. Ed. 2d 1469 (1957); nor upon the right to print, publish, disseminate, circulate and distribute information or matters that have been printed, Trimble v. Johnston, 173 F. Supp. 651, 655 (D.D.C. 1959).

The precise contention made by appellants is that the prohibition against tape recorders on the floor of the General Assembly operates as an impairment of their “right to gather information,” a right which they maintain is embodied within the First Amendment guarantee of free press. Federal and state courts have not firmly resolved the issue whether the gathering of information by the press enjoys First Amendment protection. While the Supreme Court has yet to flatly decide the question, see Note, The Right of the Press to Gather Information, 71 Colum. L. Rev. 838 , 845 (1971), dicta in two of its more recent decisions suggest that the gathering of news is embraced within First Amendment protection.

In Zemel v. Rusk, 381 U. S. 1, 17 , 85 S. Ct. 1271 , 14 L. Ed. 2d 179 (1965), Chief Justice Warren, for the Court, stated: “The right to speak and publish does not carry with it the unrestrained right to gather information,” 381 U. S. at 17 (emphasis added). More recently, in Branzburg v. Hayes, 408 U. S. 665 , 92 S. Ct. 2646 , 33 L. Ed. 2d 626 (1972), the Court held that the First Amendment does not immunize news reporters from the requirement of disclosing confidential information to grand juries. Although the Court was not called upon to decide the issue, the following dicta strongly intimate its recognition that news gathering is constitutionally protected: “Finally, as we have earlier indicated, news gathering is not without its First Amendment protection!.]” 92 S. Ct. at 2669 . “Nor is it suggested that news gathering does not qualify for First Amendment protection; . ” 92 S. Ct. at 2656 . ⁶ “A corollary of the right to publish must be the right to gather news. . . .” 92 S. Ct. at 2672 . “. . . Accordingly, a right to gather news, of some dimensions; must exist. . . .” (citations omitted). 92 S. Ct. at 2673 .

Proceeding from the premise that news gathering is indeed protected, the Court held that the refusal to confer a confidential privilege upon news reporters did not result in a prior restraint on news gathering. We think the analogy applies to this case. We too shall assume that the right to gather news is protected by the First Amendment. Our inquiry, therefore, is narrowed to the specific question of whether the ban on tape recorders constitutes a restraint on the reporters’ rights to freedom of the press.

We think it does not. It is not contended by appellants that they are denied admission to proceedings of the General Assembly. Nor is it alleged that these rules prevent them from gathering information or obtaining legislative documents; or from interviewing members of the legislature; or from prompt access to the telephone or other means of communication. Indeed, the rules do not appear to prevent the use of tape recorders anywhere in the State House except in the Senate and House Chambers; and even there, they may be allowed by permission of the President and Speaker, respectively.

In these circumstances, we perceive no curtailment of appellants’ right to gather news. They merely claim that the use of tape recorders in each chamber will promote greater accuracy and speed in reporting. We are unwilling to include those purposes, however worthwhile they may be, within a constitutionally protected right to gather news. Thus, the exclusion of recording devices from the legislative sessions constitutes no abridgement of First Amendment rights.

As Chief Justice Burger stated for the Court in Branzburg, supra: “. . . [T]his case involves no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or ⁷ implied command that the press publish what it prefers to withhold. . . 92 S. Ct. at 2656 . II We turn next to appellants’ contention that the exclusion of recording devices from each house violates the Due Process Clause of the Fourteenth Amendment and Art. 23 of the Maryland Declaration of Rights. 4 They argue that they “have a property right in the pursuit of their profession of reporting the news.” The restriction against recording devices, they say, “interferes with and deprives [them] of the right to perform [their] occupation, deprives [them] of the ability to compete with other forms of news media, and substantially diminishes the market value of [their] product — ‘Oral News.’ ” They also contend that the discretionary restrictions, enforced by the President and Speaker, are unreasonable and arbitrary. We have held that the rights of an individual to engage in a lawful business are entitled to protection under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and by Art. 23 of the Declaration of Rights. Brooks v. State Board, 233 Md. 98, 107 , 195 A. 2d 728 (1963); see Bruce v. Dir., Chesapeake Bay Aff., 261 Md. 585 , 276 A. 2d 200 (1971).

Thus, if there were any merit to appellants’ claims that the recording device restriction actually interferes with their right to pursue their profession, we would be required to uphold their constitutional challenge. We hold that this challenge has not been sustained. Appellants base their argument principally on the case of ⁸ Nevens v. City of Chino, 233 Cal. App. 2d 775 , 44 Cal.

Rptr. 50 (1965), where a news