JONATHAN TURLEY: Supreme Court must take Herridge case and protect reporters' sources
Not long ago, former Fox News investigative reporter Catherine Herridge began a painful daily ritual. With her oldest son for support, she walked to the mailbox at the end of her street and dropped an envelope into the mail. It contained a check for a daily fine of $800 that she was ordered to pay to coerce her into revealing her confidential sources in a national security story that aired on Fox News in 2017. The money came from the college funds of her two children.
As Herridge drained the savings of her military family, an alleged former colonel in the Chinese People's Liberation Army (PLA) was demanding that a court increase the daily fine to $5,000. A court later rescinded the fines, but they will be reimposed unless the Supreme Court takes Herridge’s case and reverses the lower courts.
Yanping Chen led a school called the University of Management and Technology (UMT) in Northern Virginia, which catered to U.S. service members. According to investigators and experts, Chen’s past in the Chinese military suggested that UMT posed a national security danger, including by potentially gathering information on military personnel participating in its programs. The Department of Justice declined to prosecute Chen. Nevertheless, after Herridge's investigative report, the government terminated its contracts with UMT because it considered the school a national security risk.
$800-A-DAY PENALTY THREATENS TO BLEED REPORTER DRY AS EXPLOSIVE LEGAL FIGHT HEADS TO SUPREME COURT
In her investigation, Herridge published details that directly contradicted Chen, who denied being a colonel in the PLA. Herridge showed photos in her report of Chen in her PLA uniform, and a whistleblower said on camera that UMT collected information on the military training of its students and it was all remotely accessible from China on UMT’s computers.
All of that would seem to be the makings of a Pulitzer, not a court sanction. It is not uncommon for journalists to be sued by aggrieved subjects of their stories for defamation or other civil claims. Those cases are routinely rejected given the protections for the press under First Amendment cases like New York Times v. Sullivan, requiring a higher burden of proof from public figures suing the media.
However, Chen did not sue for defamation. She did not even name Herridge as a party. After all, Herridge is not being accused of writing anything false. Instead, Chen latched onto a clever tactic. The alleged PLA colonel sued under a law that does not exist in China: the Privacy Act. The Privacy Act regulates the government’s collection, storage, and use of private information, and includes a private right of action for citizens to sue for abuses or violations. She accused government officials of violating her privacy by serving as confidential sources to Herridge. Her counsel then subpoenaed Herridge and demanded that she reveal her sources. She refused.
What is particularly alarming about this case is that the Privacy Act complaint was anemic and dubious from the outset. Much of what Chen references in her filing was available in the public domain. For example, Stephen Rhoads, a whistleblower and former UMT employee, was an FBI informant in the case and said publicly that Chen had admitted to him that she had been a PLA colonel and told him to lie about that fact when he was called to testify before a federal grand jury.
Any viable claim is primarily based on the photos. However, given all the other information in the public domain, it would have been difficult to argue that the photos caused Chen substantial harm. Her association and alleged hidden former rank as a PLA colonel led the government to take action against her and UMT.
However, Herridge had to litigate her claims of journalistic privilege in Washington, D.C. Despite being the single most important jurisdiction for investigative reporting, the federal courts in D.C. have long followed a more permissive approach to forcing the disclosure of confidential sources.
Not only did Herridge find herself in a less-than-optimal circuit, but her supporters also raised concerns about the assigned judge. U.S. District Judge Christopher Cooper, an Obama appointee, is the husband of respected attorney Amy Jeffress, who has been referenced in past Herridge stories and represents clients who have been subjects of her investigative reporting.
In 2023, Judge Cooper ordered Herridge to identify her confidential sources. She refused. Cooper then held her in contempt and imposed a crippling $800-a-day fine. The D.C. Circuit later upheld his order. When Herridge asked the Supreme Court to intervene and stay the D.C. Circuit’s mandate it also declined (though Justice Brett Kavanaugh indicated that he would have granted relief).
She is now back on a final appeal, hoping four justices will let her present her case. They should grant this petition and address the morass left by the ill-considered 1972 precedent in Branzburg v. Hayes. One appellate judge summed up the view of many by saying that the standard in the case is "about as clear as mud." (United States v. Sterling, 724 F.3d 482, 523 (4th Cir. 2013) (Gregory, J., dissenting)). The result has been decades of dangerous ambiguity in an area that needs clear rules.
Where circuits such as the First Circuit apply a balancing test that allows for greater contextual resolutions, the D.C. Circuit applies a standard that is easy to satisfy. Chen needed only to show that (1) the source is central to her case and (2) she has exhausted other avenues of discovery. That test could have allowed Nixon officials to force Watergate reporters Bob Woodward and Carl Bernstein to disclose the identity of Deep Throat as a Privacy Act violation.
CLICK HERE FOR MORE FOX NEWS OPINION
Herridge's counsel has argued that the Court should adopt the more protective standards applied outside of Washington or create a new standard. One suggested approach is to allow a judge to consider whether a case is likely to survive a motion for summary judgment before ordering such disclosure. In this case, Chen is unlikely to secure any relief based solely on the photos, given the rest of the publicly available information about her past in the Chinese military.
Ironically, Chen is seeking to use rights that are denied in China in a way that would seriously undermine the protections of a free press in this country. However, if she thought ruinous fines would force disclosure of such sources in a national security case, she tangled with the wrong reporter.
Herridge has long been a champion of journalistic privilege, even when fighting news organizations. Years ago, I disclosed in a column how CBS News seized Herridge's files containing confidential source information after she left the network. Herridge refused to yield and forced the network to surrender the files.
Herridge is not asking for immunity. She is seeking to establish a fair standard, so a court can balance interests in cases such as hers. Chen was able to repurpose the Privacy Act as a way to circumvent press protections in areas like defamation. It would be particularly concerning if an alleged former colonel in the PLA whom DOD found to be a national security threat could claim privacy violations to force the disclosure of national security sources.
There is ample ground here to strike a reasonable balance, but the Court must first accept review in Herridge v. Chen.
Jonathan Turley previously worked for CBS News and currently works at Fox News as a legal analyst. His views do not necessarily reflect those of those networks.