A federal judge in Washington is deliberating whether to hold a distinguished journalist in contempt for refusing to identify her sources for articles about a Chinese American scientist who was investigated by the FBI but never charged. The case has important ramifications for press freedom.
In an earlier proceeding, the judge ordered a secret interview with former Fox News reporter Catherine Herridge about her sources for a series of articles about Yanping Chen, a person under investigation for years on suspicion of fabricating documents from ‘immigration in connection with his participation in a Chinese Astronaut Program. Chen has filed a lawsuit against the government, alleging that information related to the investigation was released to damage his reputation.
Chen’s lawyers, however, are asking U.S. District Judge Christopher Cooper to hold the reporter in contempt, a censure that could carry heavy monetary penalties, for not disclosing to Chen’s lawyers how he obtained the information.
The long-running legal dispute, which is approaching a crucial juncture, exemplifies the convergence of divergent concerns: the ethical duty of journalists to safeguard information from sources and the right of individuals to seek redress for perceived violations of privacy by part of the government Media advocates are watching the situation closely and worry that forcing reporters to violate a promise of confidentiality could deter sources from disclosing information that could expose government misconduct.
“Allowing confidential sources to be revealed means that the public will have less information. The more significant the story, the more significant the issue, the greater the loss to the public by not knowing the truth about what’s going on,” he said. say First Amendment lawyer Floyd Abrams.
Abrams represented Judith Miller, a reporter for The New York Times who was jailed for 85 days on contempt charges for refusing to reveal a source during an investigation into revelations involving an undercover CIA agent. Miller was held in contempt.
In a written statement, the judge acknowledged the severity of the August sentence that forced Herridge to submit to an interview.
“The Court recognizes both the vital importance of a free press and the critical role that confidential sources play in the work of investigative reporters like Herridge,” who left Fox News for CBS News.
But Cooper argued that “Chen’s need for the requested evidence outweighs Herridge’s qualified First Amendment privilege in this case.”
Herridge’s stories were published and aired by Fox News in 2017, a year after the Justice Department announced that Chen, who had been under investigation for a long period of time in connection with the possible concealment of his former military service in the China on US immigration forms, I wouldn’t. be responsible for any charges.
The reports investigated Chen’s alleged past associations with the Chinese military and assessed whether he had used a vocational school he established in Virginia to provide information on American service members for the Chinese government. They used evidence allegedly obtained from the investigation, as claimed by their lawyers. This allegedly consisted of personal photographs, excerpts from an FBI document summarizing an interview, data taken from his immigration and naturalization forms, and information taken from an internal FBI PowerPoint presentation.
During an October interview conducted under oath by a lawyer for Chen, Herridge repeatedly refused to answer questions about his sources. At one point, he stated, “In my understanding, the courts have ruled that I must deny the order in order to pursue further judicial review in this case. Accordingly, I assert my First Amendment rights in denying – me to answer the question.
Patrick Philbin, Herridge’s lawyer and a former deputy White House counsel during the Trump administration, said forcing the reporter to reveal her source or sources would be damaging to her career and credibility.
“The First Amendment interest in protecting reporters’ sources is highest in cases like this, involving national security reporting,” Philbin argued to the court. “And confidentiality is critical for government sources who can be punished for speaking to the press.”
Fox News said in a statement that “punishing a reporter for protecting a confidential source not only runs afoul of the First Amendment, but would have a chilling effect on journalism across the country, as the ability to uphold the truth in the power is essential in a democracy”.
The network stated that Herridge’s position is fully supported. CBS News agreed, saying in its own statement that the contempt motion “should concern all Americans who value the role of a free press in our democracy and understand that trust in confidential sources is critical to the mission of journalism”.
Although legal disputes over whether to require reporters to reveal a source are rare, they have arisen several times over the past two decades in Privacy Act cases like the one filed by Chen. In certain legal disputes, the Justice Department has reached substantial settlements rather than compel reporters to reveal their sources; this outcome remains feasible in Herridge’s case.
For example, in 2008, the Justice Department settled with Army scientist Steven Hatfill, who was wrongly identified as a person of interest in the 2001 anthrax attacks, for $5.8 million of dollars The compromise led to the overturning of a contempt order filed against a journalist who had been asked to reveal the identity of her sources.
Lawyers for the scientist in Herridge’s case are reportedly pursuing a fine that would gradually increase until she reveals the identity of the source. In contrast to Miller’s situation, this one involves a private plaintiff seeking source-identifying information, as opposed to representatives of the Department of Justice.
In the past, courts have accepted the notion that reporters have a narrow privilege to maintain the privacy of their sources, allowing them to obstruct subpoenas. In certain cases, however, like Herridge’s, judges have determined that the need for the information can supersede the privilege if the source has exhausted all other options.
While several states offer shields for journalists that protect against subpoenas and forced disclosure of sources, federal law does not provide a comparable provision. Herridge’s case, according to Gabe Rottman of the Reporters Committee for Freedom of the Press, unequivocally demonstrates the need for a federal shield law.
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