Recently, former Fox News investigative journalist Catherine Herridge began a distressing daily routine. With her eldest son beside her, she walked to her mailbox at the end of the block to drop off an envelope. Inside was a check for a daily fine of $800—an amount she was required to pay as a means to force her to reveal her confidential sources related to a national security story she covered in 2017. This fine was significantly impacting her family’s finances, as it was being taken from her children’s college funds.
During this period, an individual claiming to be a former colonel in the Chinese People’s Liberation Army (PLA) was pushing for the court to raise the fine to $5,000 per day. Although the court subsequently lifted the fines, they could be reinstated unless the Supreme Court intervenes in Herridge’s case and overturns the previous court rulings.
The case involves Yanping Chen, who managed the University of Management and Technology (UMT) in Northern Virginia, a school catering to U.S. service members. Investigators pointed out that Chen’s military background posed a national security concern, particularly the potential for her to gather sensitive information about military personnel involved in the programs. Although the Department of Justice decided against prosecuting her, the government cut ties with UMT following Herridge’s report, deeming it a security threat.
Herridge’s investigation unveiled evidence that contradicted Chen’s claims of not being a PLA colonel. In her report, she included photographs of Chen in her military uniform, and a whistleblower on video stated that UMT had collected data regarding the military training of its students, which was allegedly accessible from China through UMT’s computers.
This circumstance might seem ripe for a prestigious journalistic recognition rather than a court penalty. It’s common for journalists to face lawsuits from individuals unhappy with their coverage, particularly for defamation or similar claims. However, many of these suits are dismissed thanks to strong First Amendment protections established in cases such as New York Times v. Sullivan, which requires a higher standard of proof for public figures suing the media.
Interestingly, Chen did not sue Herridge for defamation and didn’t even name her in the lawsuit. Instead, she employed an unusual tactic by filing under a law—the Privacy Act—that doesn’t exist in China. This act governs how the government collects and uses private information and allows individuals to take legal action for violations. Chen alleged that her privacy was breached because government officials acted as confidential sources for Herridge. As a result, her legal team subpoenaed Herridge, who steadfastly refused to reveal her sources.
What’s especially concerning is that Chen’s Privacy Act complaint lacked substance from the start. Much of the information she cited was publicly accessible. For instance, a whistleblower and former employee of UMT who was cooperating with the FBI claimed Chen admitted to him her past as a PLA colonel and instructed him to mislead about it when called to testify.
The primary foundation of her complaint rests on the photos, but given the broader context, it might be hard to prove any serious damage was done. After all, her alleged connections to the Chinese military were already causing the government to act against her and UMT.
Herridge is also grappling with her claims of journalistic privilege in Washington, D.C. Despite being a crucial place for investigative journalism, the federal courts there often adopt a more lenient stance toward forcing journalists to divulge their sources. Furthermore, she expressed concerns regarding the judge overseeing her case, U.S. District Judge Christopher Cooper. He is connected to Amy Jeffress, a respected attorney, who has appeared in previous stories of Herridge’s and represents clients linked to her investigations.
In 2023, Judge Cooper ordered Herridge to disclose her sources, which she declined to do. As a result, he found her in contempt and imposed the hefty daily fine. The D.C. Circuit later upheld this decision, and although Herridge sought Supreme Court intervention to pause the implementation of the D.C. Circuit’s order, they also declined, despite Justice Brett Kavanaugh hinting he might have favored granting her relief.
Now, Herridge is appealing in hopes that four justices will permit her to present her arguments. Many believe this petition should be accepted, as it could clarify the tangle left by the questionable precedent of Branzburg v. Hayes from 1972. One appellate judge noted that the standards resulting from this case are “about as clear as mud,” illustrating the ongoing ambiguity in essential areas of law.
Different circuits, like the First Circuit, utilize a balancing test for better contextual resolutions, whereas the D.C. Circuit employs a much simpler test. Essentially, all Chen needed to prove was that Herridge’s source was central to her complaint and that she had explored other options for obtaining the information. This kind of approach might have even allowed Nixon’s officials to require reporters to disclose the identity of Deep Throat during the Watergate scandal.
Herridge’s legal team is arguing that the Supreme Court should either adopt the stricter standards observed outside of D.C. or create a new benchmark. One suggestion is for judges to assess whether a case stands a chance of surviving a summary judgment motion before demanding such disclosures. In Chen’s situation, it’s doubtful she’d find relief based solely on the photographs, considering the comprehensive public information regarding her military history.
Ironically, Chen is trying to leverage rights that are not available in her own country in a manner that threatens to erode press protections in the U.S. If she believes that exorbitant fines will compel disclosure in a national security matter, she may be in for a fight with the wrong journalist.
Herridge has consistently been an advocate for journalistic privilege, even against her former employer. There was a time when CBS News seized her files filled with confidential source information after she left the network. She stood firm and pushed the network to return her files.
What Herridge seeks is not immunity; she wants a fair framework so that a court can weigh interests in cases like hers. Her use of the Privacy Act in this situation raises significant concerns, especially if someone who the Department of Defense has labeled a national security risk could manipulate privacy laws to uncover sources related to national security.
There is certainly enough here to find a reasonable compromise, but before any such balance is achieved, the Supreme Court needs to agree to review Herridge v. Chen.
