DC Circuit rejects Fox News reporter effort to duck subpoena over anonymous source

WASHINGTON (CN) — A D.C. Circuit panel Tuesday upheld a civil contempt finding against a Fox News reporter who refused to reveal an anonymous source while being deposed in a privacy dispute with a Chinese American scientist.

The three-judge panel unanimously ruled Catherine Herridge cannot assert qualified privilege to quash a subpoena for her source, who provided leaked FBI records regarding Yanping Chen, after the scientist had adequately overcome the reporter’s First Amendment privilege.

U.S. District Judge Gregory Katsas, a Donald Trump appointee, noted the court declined Herridge’s “invitation” to recognize a federal reporter’s privilege broadly enough to permit case-by-case analyses in cases like hers, calling it an effort to “end-run our precedent.”

“If the First Amendment itself does not entitle Herridge to disobey discovery obligations imposed on every other citizen in the circumstances of this case, we see little reason to create that entitlement as a matter of judge-made common law,” Katsas wrote for the panel. “For these reasons, we decline to recognize a federal common law news gathering privilege.”

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 from 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.

At oral arguments in November, Herridge’s attorney Patrick Philbin of Torridon Law urged the panel to apply the balancing test created in the 1981 D.C. Circuit case Zerilli v. Smith , which recognized the qualified reporter’s privilege in civil discovery.

The test requires a court determine the “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.”

U.S. Circuit Judge Harry Edwards, a Jimmy Carter appointee, also noted at oral arguments that the 2005 D.C. Circuit case Lee v. Department of Justice, narrowed Zerilli’s test to a two-part test rather than just a balancing of interests.

Under Lee, Edwards said, the panel had to consider whether the leaker’s identity was central to Chen’s privacy claim and whether Chen had exhausted all other reasonable alternative sources of the information, which she seemed to have done here.

Herridge conceded that Chen had met her burden on both points but urged the panel to nonetheless rule in her favor because Chen’s Privacy Act claim was frivolous and because Lee conflicts with Zerilli and thus does not bind the panel.

Herridge argued Chen’s claim was frivolous because “most” of the alleged damages were caused by the Defense Department’s independent decision to cut off funds to Chen’s university and that “almost all” of her reporting came from sources other than those covered by the Privacy Act.

Katas rejected those arguments, noting that “most” does not mean all damages, as Chen was seeking damages separate from the loss of business after the department cut its ties. Further, Chen had plausibly shown that some of Herridge’s information came from Privacy Act violations, such as photographs from an FBI search of Chen’s home.

“In sum, Herridge’s arguments at most suggest that Chen is likely to recover only a small amount of damage, but that does not render her claim frivolous,” Katsas wrote.

If Herridge does not appeal further, she will face a daily $800 fine until she complies with Cooper’s discovery order.

U.S. Circuit Judge Michelle Childs, a Joe Biden appointee, rounded out the panel.

Andy Phillips, Chen’s attorney of Meier Watkins, welcomed the panel’s decision in an email.

“Two federal courts have now agreed that Catherine Herridge has no privilege to continue to shield the identity of a federal official who broke the law and leaked protected material to Ms. Herridge,” Phillips wrote. “Dr. Chen looks forward to continuing to pursue redress for the government’s egregious violation of her rights.”

Philbin said the court’s decision was disappointing and said Herridge was considering options for further review.

“Ms. Herridge is particularly disappointed that, by refusing to unseal material in the record, the court has ruled on First Amendment rights while keeping important information in the case secret,” Philbin said by email. “Ms. Herridge remains committed to protecting reporters’ First Amendment rights and confidential sources.”

A Fox News Media spokesperson slammed the DC Circuit’s decision in an emailed statement.

“Forcing a journalist to reveal a source not only threatens press freedom but chills investigative reporting that holds the powerful accountable, which is the very foundation of our democracy,” the spokesperson said. “We remain steadfast in our support of the First Amendment and urge an appeal of this decision.”

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