In a case with potentially far-reaching implications for press freedom, a federal judge in Washington is weighing whether to hold in contempt a veteran journalist who refused to identify her sources for stories about a Chinese-American scientist who was investigated by the FBI but never charged. .
The judge had previously ordered the former Fox Reporter Catherine Herridge, now at CBS, will be interviewed under oath about her sources for a series of articles on Yanping Chen. Chen, who was under investigation for years on suspicion of lying on immigration forms related to her work on a Chinese astronaut program, has since sued the government , claiming details of the investigation were leaked to damage his reputation.
But after Herridge refused to disclose to Chen’s lawyers how she obtained her information, the scientist’s lawyers are asking U.S. District Judge Christopher Cooper to convict the journalist of contempt — a penalty that could result in hefty fines up to that she complies with it.
This long-running lawsuit, now approaching a crucial decision point, represents the collision of competing interests: a journalist’s professional obligation to protect their sources and an individual’s right to seek redress for violations alleged invasion of his private life by the government. The case is closely watched by media advocates, who say forcing journalists to betray a promise of confidentiality could make sources think twice before providing journalists with information that could expose government wrongdoing.
“Allowing confidential sources to be revealed means the public will have less information. The bigger the story, the bigger the subject, the bigger the loss to the public if they don’t know the truth about what’s happening,” said Floyd Abrams, a longtime First Amendment attorney. Abrams pictured Judith Miller, journalist at the New York Timeswho spent 85 days in prison after being convicted of contempt for refusing to disclose a source in an investigation into leaks about an undercover CIA agent.
It’s unclear when the judge might rule on Chen’s request to find Herridge in contempt.
The judge acknowledged the stakes of an August ruling that forced Herridge to be interviewed, writing: “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. »
But Cooper said Chen’s “need for the requested evidence outweighs Herridge’s restricted First Amendment privilege in this case.”
Herridge’s articles were published and broadcast by Fox News in 2017, a year after the Justice Department told Chen she would not face any charges in its years-long investigation into to determine whether she was able to conceal her former membership in the Chinese army on American immigration forms.
The reports examined Chen’s alleged former ties to the Chinese military and whether she used a vocational school she founded in Virginia to help the Chinese government obtain information on U.S. military personnel. They relied on what his lawyers claim were materials disclosed during the investigation, including excerpts from an FBI document summarizing an interview, personal photographs and information from his immigration and naturalization forms and from an internal FBI PowerPoint presentation.
Herridge was interviewed under oath in September by a lawyer for Chen, but refused dozens of times to answer questions about her sources, saying at one point: “It is my understanding that the courts have ruled that in order to request further judicial review in this case. , I must now refuse the order, and I respectfully invoke my First Amendment rights by refusing to answer the question.
Herridge’s lawyer, Patrick Philbin, who served as deputy White House counsel during the Trump administration, said forcing the journalist to reveal her source(s) would destroy her credibility and harm her career.
“The First Amendment interest in protecting journalists’ sources is at its highest in cases, like this, involving national security reporting,” Philbin wrote in court papers. “And confidentiality is essential for government sources who could be sanctioned for speaking to the press. »
In a statement, Fox News said that “sanctioning a journalist for protecting a confidential source not only violates the First Amendment, but would have a chilling effect on journalism across the country because the ability to bring truth to power is essential in a democracy. »
The network said it fully supports Herridge’s position. CBS News said the same was true, saying in its own statement that the contempt motion “should concern all Americans who value the role of the free press in our democracy and understand that relying on confidential sources is essential to the mission of journalism. .”
Legal disputes over whether journalists should be required to disclose a source are rare, although they have arisen repeatedly over the past two decades in privacy cases such as filed by Chen. Some lawsuits have ended in a hefty Justice Department settlement, rather than a reporter being forced to reveal a source, an outcome that remains possible in Herridge’s case.
In 2008, for example, the Justice Department agreed to pay $5.8 million to settle a lawsuit brought by Army scientist Steven Hatfill, falsely identified as a person of interest in the attacks. anthrax of 2001. This settlement resulted in the reversal of a contempt order against a journalist who was asked to name her sources.
In Herridge’s case, the scientist’s lawyers say they are seeking a fine that would increase over time until she identifies her source. Unlike Miller’s situation, this is a private plaintiff demanding to know the identity of the source rather than Justice Department officials.
Courts have recognized that journalists have a limited privilege to keep their sources confidential, which has allowed them to block subpoenas in the past. But in some cases, like Herridge’s, judges have found that privilege can be outweighed by the need to have the information if the person seeking the source has been unable to find it through other means.
Many states have shields for journalists, which provide various protections against subpoenas and forced disclosure of sources, but no such protection exists in federal law. Gabe Rottman of the Reporters Committee for Freedom of the Press said Herridge’s case is a stark illustration of the need for a federal protection law.
“If sources can’t receive credible assurances of confidentiality, they won’t come forward,” said Rottman, director of the group’s Technology and Press Freedom Project. “And it inhibits the free flow of information to the public and limits the ability of journalists to do their jobs.”
Richer reported from Boston.