WASHINGTON (CN) — The First Amendment cornerstone that allows journalists to keep sources anonymous was put to the test on Tuesday as a federal judge considered a subpoena in a case where a scholar's ties to China drew an FBI probe.
Yanping Chen, a Chinese American scientist who is founder and head of the the online institution University of Management and Technology, brought the lawsuit five years ago in Washington. She alleges that U.S. law enforcement is responsible for violating her privacy after Fox News reporter Catherine Herridge reported that Chen was under investigation and had once served in the Chinese military.
Herridge is not a party to the suit, but the reporter has been fighting for the last year to quash a subpoena for various documents that made it into her article, including photos of Chen, immigration forms and information from FBI interviews.
Patrick Philbin, an attorney for the reporter with Ellis George, argued Tuesday that the subpoena is doomed for two reasons: because Chen has not shown that the source information is central to her suit, and that Chen must first exhaust all other methods of finding such information before she can override reporter's privilege.
The legal doctrine generally allows reporters to keep their sources confidential and refuse subpoenas or testifying so that sources can be confident in the promises of anonymity journalists offer and will not be exposed before a court.
Philbin pointed to the precedent — particularly Lee v. Department of Justice and Zerilli v. Smith — rulings that state that reporter’s privilege “must endure except in extreme cases.” These rulings created guidelines for judges to balance the “public interest in protecting a reporter’s sources and the private interest in compelling disclosure," noted Philbin, who served former President Donald Trump as deputy White House counsel.
U.S. District Judge Christopher Cooper seemed reluctant to fully accept Philbin’s characterization of the subpoena as a major threat to the First Amendment protections for journalists, noting that the referenced cases and any similar occurrences are few and far between.
“Isn’t this concern overstated?” the Obama appointee asked, pointing out that the Lee was from 2005 and Zerilli from 1981.
Between 2010 and 2016, Chen was the subject of an FBI investigation that involved the search of her home and office and seized business documents, family photos, personal and business communications, videotapes and cellphones. No charges against her were ever filed.
When Herridge reported on the probe for Fox, it included one photo that shows Chen holding a what looks like a Chinese military uniform on a hanger, as her husband, J. Davidson Frame, salutes her. The second photo shows a younger Chen wearing a Chinese military uniform, before she immigrated to the U.S.
Andrew Phillips, an attorney from Clare Locke representing Chen, urged Cooper to keep the Privacy Act in mind, arguing that the issue at hand is the leak itself and the damage it has caused his client, not the “lofty First Amendment arguments” Philbin made.
The case treads similar ground to that of Jeffrey Sterling, a CIA whistleblower who was sentenced to 3 1/2 years in prison for speaking with a New York Times reporter about an operation to supply Iran with flawed nuclear warhead blueprints.
Federal prosecutors tried to force journalist James Risen to reveal his source, but his identity was nonetheless revealed through intercepted communications between the two.
Sterling was sent to prison in May 2015 and released January 2018.
After hearing arguments from both sides Tuesday, Cooper sealed the courtroom to discuss redacted information relevant to the suit. He did not indicate when he will rule on whether to quash the subpoenas.
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