SCOTUS Has a Shot to Take a Major First Amendment, Free Press Case. Here’s What’s at Stake

An investigative reporter is asking the Supreme Court to review a court order to identify the sources behind her reporting.

In a case that could set new precedent on the First Amendment, former Fox News and CBS News investigative reporter Catherine Herridge is appealing a lower court’s order to pay an $800 per day contempt fee until she revealed her source. Free press advocates argue a decision against Herridge could allow a floodgate of litigation to force journalists to reveal sources.

Herridge had reported on Yanping Chen, a naturalized U.S. citizen born in China who was investigated by the FBI for alleged ties to the Chinese military. Chen sued federal agencies over alleged leaks of personal information from the investigation.

For her part, Chen says she has a right to know which government officials unlawfully disclosed private information about her.

“Dr. Chen, like any other American citizen, is entitled to discover the identity of the federal official(s) who abused their access to an American’s private information and leaked it to cause her harm,” counsel for Chen told the Daily Signal in a statement Monday.

“That type unlawful [sic] conduct is exactly what the Privacy Act was designed to address,” the counsel continued. “Rogue government officials who break the law and abuse their power to target private citizens should not be able to remain anonymous and free from consequences simply because they launder their unlawful conduct through a reporter.”

The central issue in the case is whether courts can force journalists to identify confidential sources in civil lawsuits when the information is important to the plaintiff’s case and other avenues of discovery have been exhausted. The case differs from past court precedent that rejected a right to protect sources before a criminal grand jury.

The U.S. Court of Appeals for the District of Columbia Circuit upheld the ruling by D.C. District Judge Chris Cooper, a Barack Obama appointee, ruling that existing precedent permitted disclosure of the sources under the circumstances of Chen’s lawsuit.

Herridge argues that the lower court’s approach gives insufficient weight to the public interest in investigative reporting and the First Amendment.

“The court dramatically diluted the First Amendment reporter’s privilege with a two-factor test under which every civil litigant who needs a reporter’s confidential source and cannot discover it by other means can automatically compel disclosure,” Herridge’s petition says. “That approach creates a privilege in name only and parts ways with multiple circuits that provide reporters with meaningful protection by balancing a civil litigant’s needs against the recognized harm to the press that results from forcing disclosure of sources.”

Chen is founder of the University of Management and Technology, a for-profit school based in Arlington, Virginia. Fox News reported in 2017 on the school, funded by the Defense Department, and the FBI investigation of its alleged ties to the Chinese People’s Liberation Army. Chen was not charged in the investigation, but she lost the Pentagon contract.

Herridge’s lawyers include Paul Clement, former solicitor general during the second term of George W. Bush.

The case differs from past Supreme Court cases on confidential sources. In 1972, the high court held 5-4 in Branzburg v. Hayes that the First Amendment doesn’t grant journalists a constitutional right to refuse to answer questions or reveal confidential sources before a grand jury. This, however, is a civil case with a privacy argument, not a defamation case or one involving a grand jury.

Herridge’s petition noted the D.C. Circuit split from other appeals courts on the matter.

“Most circuits to address the question have held that, in the civil-litigation context, the reporter’s privilege (whether rooted in the First Amendment or Federal Rule of Evidence 501) protects confidential sources from forced disclosure unless a meaningful balancing of the interests favors disclosure,” the petition says.

Herridge is now an independent journalist. Fox News has helped back the litigation.

Fox News legal analyst and George Washington University law professor Jonathan Turley wrote a column in The Hill urging the high court to take the case.

“This test exposes every reporter who breaks a story in Washington involving government abuse or waste. Imagine if Bob Woodward and Carl Bernstein had been sued under the Privacy Act by Nixon administration officials and forced to disclose the identity of Deep Throat,” Turley wrote.

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