Federal case may curtail journalists’ rights to keep sources confidential
A case between a Chinese American scientist and the federal government has ensnared former Fox News reporter Catherine Herridge and threatens to set precedent that would chip away at the ability of journalists to protect their anonymous sources, free speech advocates say.
In 2024, a federal judge held Herridge in contempt of court and fined her $800 a day after she refused to reveal who leaked to her details of a federal investigation against Yanping Chen, who was living and working in Virginia. The U.S. Court of Appeals for the District of Columbia Circuit upheld the contempt order.
Herridge is waiting to hear whether the appeals court will rehear her case en banc after the three-judge panel unanimously ruled against her in September. If the judges decline to rehear the case, the only option for review would be a cert petition to the U.S. Supreme Court.
The question is whether a federal judge can force Herridge to reveal her sources in a civil suit in which she’s not even a party. The issue highlights growing concern that journalists’ First Amendment rights are being curtailed, says Seth Stern, director of advocacy at Freedom of the Press Foundation.
“The press’s effectiveness as a watchdog is based on its ability to remain independent and communicate with sources who can disclose important information,” Stern says. “If sources believe that reporters can be forced to out them in court anytime someone files a Privacy Act case, then they are going to be more reluctant to talk to journalists, and the public will be poorer for it.”
Stern adds that “if journalists are only able to provide news that the government hands them on the record, then they are really just stenographers.”
Chen founded and is president of the University of Management and Technology, which participated in the Defense Department’s tuition assistance program. In 2017, Herridge began a series of reports for Fox News describing how the FBI had investigated Chen, including whether she had lied on U.S. immigration forms about past military service in the People’s Liberation Army before she moved to the United States in 1987. The FBI never brought charges against Chen and ended the investigation a year before the Fox News reports were aired, according to court documents.
In 2018, Chen sued the FBI and other federal agencies for violating the Privacy Act by leaking information about the FBI probe to Herridge. The Privacy Act prohibits unauthorized disclosure of government records. Herridge allegedly obtained photos, an FBI interview form and immigration-related documents from her sources.
“Two federal courts have now agreed that Catherine Herridge has no privilege to continue to shield the identity of a federal official who broke the law and leaked protected material to Ms. Herridge,” says Andrew C. Phillips, counsel for Chen, adding that his client “looks forward to continuing to pursue redress for the government’s egregious violation of her rights.”
Fox News released a statement to the ABA Journal saying that forcing a journalist “to reveal a source not only threatens press freedom but chills investigative reporting that holds the powerful accountable, which is the very foundation of our democracy.”
Privacy rights
In an amicus brief in the case, the Asian American Legal Defense and Education Fund argues that media stereotyping has empowered false accusations of espionage and inflammatory rhetoric against Asian Americans. The brief says Chen has already endured harms based on stereotyping and accusations of disloyalty that damaged her career.
“Dr. Chen’s race and country of origin do not change the fact that she has the same privacy rights as any other citizen,” the brief states.
Chen went through extensive discovery, according to court papers, but was unable to identify Herridge’s sources. In court documents, Chen argues having Herridge reveal her sources is the only way to get the information.
‘Not about ego’
In February 2024, U.S. District Judge Christopher Cooper concluded Chen had met her burden to overcome Herridge’s qualified First Amendment privilege and held her in civil contempt.
“The court does not reach this result lightly,” Cooper wrote. “It recognizes the paramount importance of a free press in our society and the critical role that confidential sources play in the work of investigative journalists like Herridge. Yet the court also has its own role to play in upholding the law and safeguarding judicial authority.”
In its September ruling, the appeals court panel agreed, noting that there is no federal newsgathering privilege and declining to create one.
Patrick F. Philbin, counsel for Herridge, says in a statement that the panel’s ruling “waters down the First Amendment reporter’s privilege so that it is nothing more than an exhaustion requirement under which every Privacy Act plaintiff will always get access to confidential sources, no matter how minimal the alleged violation, how dubious the merits of the claim, or how important the First Amendment interests involved.”
Herridge joined Fox News Channel at its inception in 1996. She moved to CBS in 2019, where she worked as a senior investigative correspondent until she was laid off in 2024. Since then, Herridge has leveraged her following to work as an independent journalist.
In June 2024, Herridge wrote in an opinion piece in The Free Press that the “protection of confidential sources is not about ego, and it doesn’t mean that journalists are somehow above the law. It’s about preserving the tools that shine a light on wrongdoing and hold government officials accountable.”
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