CBS reporter refusing to reveal her sources could be held in contempt

In a rapidly escalating case that is worrying First Amendment advocates, journalist Catherine Herridge could soon be held in contempt of court if she does not reveal her source for the investigative stories she wrote in 2017.

Herridge, now a reporter for CBS News who worked for Fox News at the time, has a Thursday deadline to explain to a federal judge why she should not face the civil sanction – and the hefty, accumulating fines that could come with it.

U.S. District Court Judge Christopher R. Cooper ruled Aug. 1 that Herridge must reveal how she learned about a federal probe into a Chinese American scientist who operated a graduate program in Virginia – the subject of several stories Herridge reported for Fox.

Yanping Chen was never charged as a result of the investigation, which sought to determine whether she had lied about her military service and whether her school’s student database could be accessed from China, as the Fox News reports revealed. But after those stories brought the probe to light, Chen sued the federal government alleging that Herridge had been given leaked materials that violated her privacy, including photographs and images of internal government documents.

After Chen’s lawyers conducted 18 depositions of government and other officials without learning the source of the leak, according to her legal filing, Chen has argued that only the journalist could provide the information she needed to pursue her grievance against the government.

The judge came to the same conclusion. While acknowledging “the vital importance of a free press and the critical role that confidential sources play in the work of investigative journalists,” Cooper ruled in August that Chen’s need for the evidence “overcomes Herridge’s qualified First Amendment privilege.”

But First Amendment advocates disagreed, arguing that journalists can only perform their public service function if they are able to protect the identity of their confidential sources.

And they raise special concerns about Chen’s request to the judge earlier this month that Herridge should personally pay the daily fees, which could range from $500 to $5,000, rather than allowing CBS or Fox to do so.

“The idea that a journalist might personally have to suffer the consequences is extremely chilling,” said Caitlin Vogus, deputy director of advocacy at the Freedom of the Press Foundation. “That’s going to make you think twice about how far you can go to protect your sources.”

Chen’s request came after Herridge sat for a deposition in late September but refused to reveal how she obtained the information, citing her First Amendment rights and telling Chen’s lawyer, “I must now disobey the order.”

“Her position is brave and personally risky. She deserves credit for standing by her source,” said famed First Amendment attorney Floyd Abrams.

Abrams once represented New York Times reporter Judith Miller, who spent 85 days in jail after refusing to reveal a source in a criminal leak investigation.

“These are painful situations in which a journalist seeks to protect their sources, which is one thing that is at the pinnacle of journalistic behavior,” he added.

Andrew C. Phillips, a lawyer representing Chen, said the federal Privacy Act supersedes the journalistic imperative. “The law gives members of the media special treatment in most cases, but not when their refusal to testify like any other citizen will immunize a government official from accountability for an outrageous abuse of power,” he said in a statement.

Others raised concerns about the essence of Herridge’s stories and how they came about. Chen has said that the reports caused enrollment and funding to drop at her University of Management and Technology.

Bethany Li, legal director for the Asian American Legal Defense and Education Fund, said the investigation into Chen was “another unfortunate example of how the government is targeting our community as an enemy without any justification.” While she said that journalists should be able to protect their sources, she added, “I also think there’s significant public interest … in making sure that individuals’ rights aren’t violated by a rogue FBI agent who wants to share their private information.”

Herridge’s case further set off alarm bells for journalism advocates after an early September ruling by Cooper instructing that she could only challenge her disclosure requirement after a formal contempt ruling, which she could then appeal – at which point she would start racking up fines.

Gabe Rottman, of the Reporters Committee for Freedom of the Press, said that Herridge is “stuck between a rock and a hard place.”

“While you appeal the claim, you’re subject to burdensome sanctions,” he added. “A framework like that is really disruptive to newsgathering.”

Past lawsuits stemming from the Privacy Act have ended with multimillion dollar settlements. In 2005, a judge held five national reporters in contempt and ordered them to pay $500 per day until they revealed sourcing information for stories about a government probe of nuclear scientist Wen Ho Lee. Ultimately, a coalition of five news organizations, including The Washington Post, agreed to pay Lee $750,000 to settle the case – and to forestall any possibility of the journalists being jailed.

In 2008, a few months after a USA Today reporter was held in contempt, the Department of Justice settled with former Army scientist Steven Hatfill for $4.6 million, after he filed suit over a decision to deem him “a person of interest” in the 2001 anthrax attacks, attracting waves of media attention.

CBS and Fox released statements to CNN last month expressing outrage about Chen’s request for a contempt sanction. CBS said the matter “should be concerning to all Americans who value the role of the free press in our democracy.

Herridge’s case stands out to press advocates as a perfect example of why they say Congress should approve a federal shield law protecting reporters from having to disclose their sources. The bill passed the House Judiciary Committee in March but must still do so in the Senate.

Vogus called the Herridge case “a threat to journalists and to the First Amendment,” adding, “I think it should be getting more attention, and I’m not sure why it’s not.”