DC Circuit appears unlikely to let Fox News reporter duck subpoena in dispute over Chinese espionage story

WASHINGTON (CN) — A D.C. Circuit panel on Monday grappled with a cornerstone of press freedom under the First Amendment: journalists’ ability to protect the identities of anonymous sources.

The three-judge panel appeared skeptical of former Fox News reporter Catherine Herridge’s argument that her qualified privilege should bar a subpoena forcing her to reveal a source in a dispute with a Chinese American scientist.

Yanping Chen, founder and head of the online for-profit University of Management and Technology, sought to depose Herridge to disclose the identity of a government official who turned over certain forms when Chen immigrated over 40 years ago.

Herridge had used the documents in a story that said Chen once served in the Chinese People’s Liberation Army and was the subject of an FBI probe regarding supposed misstatements.

Chen, who was never charged, says Herridge’s reporting insinuated that she was a spy providing military information to the Chinese Communist Party.

U.S. District Judge Christopher Cooper denied Herridge and Fox’s attempts to quash the subpoena. When Herridge refused to comply, the Barack Obama appointee held her in contempt, prompting her appeal to the D.C. Circuit.

Herridge’s attorney Patrick Philbin asked the panel to conduct a balancing test to determine whether the public interest in revealing the source outweighs a reporter’s privilege.

“Zerilli v. Smith went to great lengths to explain there is a systemic societal cost every time a reporter’s confidential source is disclosed, because it chills the flow information to the press and impairs the ability of the press to fulfill its function,” Philbin said, citing a 1981 D.C. Circuit case.

U.S. Circuit Judge Harry Edwards grilled Philbin on that case and pointed to the more recent Lee v. Department of Justice, a 2005 case that requires the panel to conduct a two-part test rather than just a balancing of interests. In that case a D.C. Circuit panel affirmed a federal judge’s decision to hold four journalists in contempt for similarly refusing a deposition regarding confidential sources. The panel found the court was right to force their testimony under the test.

Edwards, a Jimmy Carter appointee, said Lee made it clear they must consider whether the leaker’s identity was central to Chen’s privacy claim and whether Chen had exhausted all other remedies before seeking disclosure.

Philbin said there was a conflict between the two cases and thus Zerilli should apply. Otherwise, the two-part test would allow any privacy claim to eventually overcome reporter’s privilege.

“Every litigant, doesn’t matter how small their claim is, doesn’t matter whether they’re going to succeed on summary judgment or not, if they have a Privacy Act claim and they need the information and can’t get it elsewhere, First Amendment privilege always loses,” said Philbin, who works at the Washington firm Torridon Law.

U.S. Circuit Judge Michelle Childs, a Joe Biden appointee, asked Philbin how the panel should define “the press” in an age when “people hide behind Twitter” and other social media sites. Philbin said his definition was limited to traditional media, like cable’s Fox News.

Chen’s attorney, Andrew Phillips of the Washington firm Meier Watkins, urged the panel to affirm Judge Cooper’s contempt order and conduct the two-part centrality and exhaustion test.

Phillips called Herridge’s arguments in her brief — that Cooper failed to consider the risk that Chen did pass on military information, the impact on her sources and on national security reporting — a “free-for-all grab bag” that did not follow Zerilli. 

He said Chen’s case was an exception, considering she “hit the pavement” to find the leaker’s identity, and only subpoenaed Herridge after five years and deposing 40 other officials.

There is little risk the panel will set a problematic precedent if it sides with Chen, Phillips said, noting this was only the third case to rise to the appellate level under the Privacy Act in the last 40 years.

Further, he said it would be more problematic to apply the balancing test in this case; the contempt order makes such an approach “inherently unworkable.”

U.S. Circuit Judge Gregory Katsas, a Donald Trump appointee, rounded out the panel.

The case garnered amicus briefs from fellow media outlets urging the panel to side with Herridge and uphold qualified privilege.

Republican Texas Senator Ted Cruz filed a brief asking the panel to clarify the grounds for a reporter to assert their privilege and to consider the potential national security risks associated with disclosing the source. Cruz also claimed Chen was in fact a spy, and said a favorable decision would further her supposed efforts.

“Chen should not be allowed to undermine First Amendment protections so that she might further profit from her espionage,” Cruz said in the brief.

Meanwhile, several Asian American advocacy groups filed briefs in support of Chen, arguing that Chen was a victim of the “forever foreigner stereotype” who was wrongfully accused of espionage.

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