A federal judge has ordered a former Fox News reporter to disclose her confidential sources as part of an ongoing civil case brought by a scientist against the Federal Bureau of Investiation (FBI).
On Tuesday, Judge Christopher Cooper of the U.S. District Court in Washington, D.C. said journalist Catherine Herridge’s First Amendment privilege was not enough to overcome a subpoena issued by Dr. Yanping Chen against her and Fox News seeking the names of confidential FBI sources who alleged Chen was under investigation.
Herridge and Fox News had sought to squash the subpoena, citing both journalistic privilege and Washington, D.C.’s shield law, which is supposed to protect journalists from being forced through litigation into disclosing the names of their confidential sources.
“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,” Cooper wrote in his opinion. “But applying the binding case law of this Circuit, the Court concludes that Chen’s need for the requested evidence overcomes Herridge’s qualified First Amendment privilege in this case.”
Cooper said the identity of Herridge’s source or sources “is central to Chen’s claim, and despite exhaustive discovery, Chen has been unable to ferret out his or her identity. The only reasonable option left is for Chen to ask Herridge herself.”
Chen became the subject of an FBI probe in 2010 over claims she made on an application to become a naturalized citizen. Her home and workplace were raided after investigators convinced a judge to issue various search warrants, but prosecutors ultimately decided not to pursue charges.
About a year after the matter was settled, Herridge produced a series of stories that centered around Chen’s apparent ties to the Chinese military, including her former role as Colonel in the People’s Liberation Army. Some of her reports contained sensitive investigative material produced and stored by the FBI as part of its investigation — documents that would normally be exempt from public disclosure.
Chen believes she has pinpointed the identities of one or more sources who may have leaked the material, including former FBI special agent Timothy Pappa and alleged FBI informant Stephen Rhoads. But she has not been able to obtain any direct evidence from the people she suspects might have leaked the materials, which prompted her legal team to issue subpoenas against Herridge and Fox.
Cooper relied on two court cases — one from the 1970s, another from 2005 — that installed a litmus test that judges must consider when weighing whether a reporter’s First Amendment privilege trumps a person’s ability to force them to disclose sources. According to Cooper, the test requires that “reporters should be compelled to disclose their sources only after the litigant has shown that he has exhausted every reasonable alternative source of information.”
The judge said Chen’s efforts have been exhaustive, including serving the FBI with nearly 70 requests for discovery evidence and deposing both the former FBI agent and informant. But despite those efforts, Chen has still not been able to identify Herridge’s sources.
Cooper’s order did not consider whether Herridge has the right to protect her sources under Washington, D.C.’s shield law, which would normally be recognized by the federal court. The law says the identity of sources is “absolutely privileged,” and a reporter normally cannot be compelled to disclose them.
It was not immediately clear if Herridge or Fox plan to appeal the matter. Herridge left Fox in 2019 for a similar role at CBS News.
The case demonstrates the shortcomings in the enforcement of existing shield laws, which vary by state. Some states, including California, have tough shield laws that apply equally to criminal and civil cases, and can be recognized in federal courts as well.
But there exists no federal shield law of its own, something that a few lawmakers are trying to change. Last month, Senators Ron Wyden, Richard Durbin and Mike Lee introduced a bill that would codify a reporter’s absolute privilege against the disclosure of confidential sources. The bill is largely aimed at warrantless government surveillance of journalists — the U.S. Department of Justice has reported dozens of cases since 2014 — but would apply equally to civil matters.
“Spying on reporters to learn the identity of their sources is a finger in the eye of the First Amendment,” Wyden said in a statement. “Unnecessary surveillance of journalists makes it harder to bring waste, fraud and abuse to light, by scaring off sources and reporters who are essential to a well-functioning democracy. Our bipartisan legislation creates strong protections for reporters, with common sense exceptions for cases when the government truly needs information immediately.”