A Washington federal judge is deliberating whether to find a distinguished journalist in contempt of contempt for refusing to identify her sources for articles about a Chinese American scientist who was investigated by the FBI but never charged. The case has significant ramifications for press freedom.
In a prior proceeding, the judge mandated an underoath interview with former Fox News reporter Catherine Herridge regarding her sources for a sequence of articles concerning Yanping Chen, an individual under investigation for years on suspicion of having fabricated immigration documents in connection with her participation in a Chinese astronaut program. Chen has filed suit against the government, alleging that probe-related information was disclosed to harm her reputation.
Chen’s attorneys, however, are petitioning U.S. District Judge Christopher Cooper to hold the reporter in contempt — a censure that could result in hefty monetary penalties — for failing to disclose to Chen’s attorneys how she obtained the information.
The protracted legal dispute, which is approaching a pivotal juncture, exemplifies the convergence of divergent concerns: the ethical duty of journalists to safeguard sources’ information and the right of individuals to seek recompense for perceived infringements of privacy by the government. Media advocates are closely observing the situation and are concerned that compelling journalists to violate a confidentiality promise could discourage sources from disclosing information that could expose government misconduct.
“Allowing confidential sources to be ordered revealed means that the public will have less information. The more significant the story, the more significant topic, the greater the loss to the public in not knowing the truth about what’s going on,” said longtime First Amendment attorney Floyd Abrams.
Abrams represented Judith Miller, a reporter for The New York Times who was imprisoned for 85 days on charges of contempt for refusing to disclose a source during an investigation into disclosures involving a covert CIA agent. Miller was held in contempt.
In a written statement, the judge recognized the gravity of the August ruling that compelled Herridge to undergo an interview.
“The Court recognizes both the vital importance of a free press and the critical role that confidential sources play in the work of investigative journalists like Herridge,” who left Fox News to work at CBS News.
But Cooper argued that “Chen’s need for the requested evidence overcomes Herridge’s qualified First Amendment privilege in this case.”
Fox News published and aired the Herridge stories in 2017, one year subsequent to the Justice Department’s declaration that Chen, who had been under investigation for an extended period of time regarding potential concealment of her former military service in China on U.S. immigration forms, would not be held accountable for any charges.
The reports investigated Chen’s purported previous associations with the Chinese military and assessed whether she had utilized a professional school she established in Virginia to provide intelligence on American servicemembers for the Chinese government. They utilized evidence purportedly obtained from the investigation, as stated by her attorneys. This allegedly consisted of personal photographs, excerpts of an FBI document that summarized an interview, data extracted from her immigration and naturalization forms, and information extracted from an internal FBI PowerPoint presentation.
During an October interview conducted under oath by an attorney for Chen, Herridge repeatedly declined to respond to inquiries regarding her sources. At one juncture, she stated, “According to my understanding, the courts have ruled that I must decline the order in order to pursue additional judicial review in this case. Respectfully, I assert my First Amendment rights by declining to answer the question.”
Patrick Philbin, Herridge’s attorney and a former deputy White House counsel during the Trump administration, stated that compelling the journalist to reveal her source or sources would be detrimental to her career and credibility.
“The First Amendment interest in protecting journalists’ sources is at its highest in cases, like this, involving reporting on national security,” Philbin argued before the court. “And confidentiality is critical for government sources who may face punishment for speaking to the press.”
Fox News stated in a statement that “sanctioning a journalist for protecting a confidential source is not only against the First Amendment but would have a chilling effect on journalism across the country as the ability to hold truth to power is essential in a democracy.”
The network stated that Herridge’s position is completely supported. CBS News concurred, stating in its own statement that the contempt motion “should be concerning to all Americans who value the role of the free press in our democracy and understand that reliance on confidential sources is critical to the mission of journalism.”
Although legal disputes regarding whether journalists should be required to reveal a source are uncommon, they have occurred on multiple occasions in the last two decades in Privacy Act cases such as the one Chen filed. In certain legal disputes, the Justice Department has reached substantial settlements in lieu of compelling journalists to disclose their sources; such an outcome continues to be feasible in the case of Herridge.
For example, in 2008, the Justice Department reached a settlement agreement with Army scientist Steven Hatfill, who was wrongfully identified as a person of interest in the 2001 Anthrax assaults, for $5.8 million. The compromise led to the rescinding of a contempt order lodged against a journalist who had been requested to disclose the identities of her sources.
The scientist’s attorneys in the case of Herridge are reportedly pursuing a fine that would escalate gradually until she discloses the identity of the source. In contrast to Miller’s predicament, this one involves a private plaintiff seeking information regarding the source’s identification, as opposed to Justice Department representatives.
In the past, courts have accepted the notion that journalists possess a restricted privilege to maintain the privacy of their sources, permitting them to obstruct subpoenas. In certain cases, however, such as Herridge’s, judges have determined that the necessity for the information may supersede the privilege if the source has been exhausted all other options.
While several states provide reporter shields that safeguard against subpoenas and the coerced disclosure of sources, federal law does not provide a comparable provision. Herridge’s case, according to Gabe Rottman of the Reporters Committee for Freedom of the Press, demonstrates unequivocally the necessity of a federal shield law.