By Zachary Stieber
A federal judge has ordered a reporter to disclose her sources for an investigative series on an FBI investigation into a Chinese scientist named Yanping Chen, in a rare move that has triggered pushback from press groups.
Catherine Herridge, currently with CBS News but with Fox News when she reported the stories, must sit for a deposition and answer questions under oath about the identity and intent of the sources for the series, U.S. District Judge Christopher Cooper ruled.
“The Court recognizes both the vital importance of a free press and the critical role that confidential sources play in the work of investigative journalists like Herridge,” Judge Cooper, an appointee of former President Barack Obama, said in a 28-page ruling. “But applying the binding case law of this Circuit, the Court concludes that Chen’s need for the requested evidence overcomes Herridge’s qualified First Amendment privilege in this case.”
Lawyers representing Ms. Herridge and Fox had argued that the U.S. Constitution’s First Amendment protects journalists from most requests and that Ms. Chen had not met the threshold to override the protection.
‘Balance of Interests’
While previous rulings have found that journalists are protected by the First Amendment, a party may compel information by proving that the information they seek is critical to their case and that they’ve exhausted all other options.
“The balance of interests overwhelmingly favors protecting sources,” the lawyers said. “Plaintiff’s private interest in Privacy Act damages carries no broader public interest. Moreover, given the infirmities in the merits of her case, it is unlikely that Plaintiff can ever establish significant damages at all.”
Since filing the lawsuit against the FBI and other federal agencies, Ms. Chen has been able to take 18 depositions of current and former government employees and obtained declarations from others but has still been unable to confirm Ms. Herridge’s sources. She believes an FBI agent, an alleged FBI informant, or other government agents leaked an internal FBI presentation created by the agent to Ms. Herridge.
“The identity of Herridge’s source is central to Chen’s claim, and despite exhaustive discovery, Chen has been unable to ferret out his or her identity. The only reasonable option left is for Chen to ask Herridge herself,” the judge wrote.
Fox, CBS, and a lawyer representing Fox and Ms. Herridge did not respond to requests for comment.
Press groups decried the ruling.
“Investigative journalism cannot function without credible assurances of confidentiality to sources,” Gabe Rottman, a director at the Reporters Committee for Freedom of the Press, told CNN. “While the Privacy Act provides essential protections for the public, using it to breach reporter-source confidentiality poses significant risks to a free press.”
Caitlin Vogus, deputy director of advocacy at Freedom of the Press Foundation, added that the decision emphasizes the need for a bill called the Protect Reporters from Exploitive State Spying (PRESS) Act, which would ban judges from forcing journalists to reveal their sources. The bill has support from members of both parties, including Rep. Jamie Raskin (D-Md.) and Sen. Mike Lee (R-Utah).
Background on Case
Ms. Chen, a naturalized U.S. citizen, founded and owned the University of Management and Technology. Multiple military members attended the university, with the Department of Defense helping pay their tuition.
The FBI, starting in 2010, investigated Ms. Chen. Agents searched Ms. Chen’s home and the university’s main office. In 2016, prosecutors told Ms. Chen’s attorney she would not be charged.
Reporting by Ms. Herridge had focused on Ms. Chen’s alleged ties to the Chinese military, but she had said on immigration documents that she had never been affiliated with the military of the Chinese Communist Party. The stories also detailed the FBI investigation and said that agents and prosecutors disagreed over how the case was handled.
The Department of Defense moved in 2018 to stop helping pay the tuition of military members to attend Ms. Chen’s university.
Ms. Chen sued the FBI, alleging the leak of information was illegal, violating the Privacy Act.
“Soon after … Chen was informed that no charges would be brought against her, and in violation of federal law,” the suit stated, “one or more agents of the Defendants, who possessed or had access to confidential FBI records pertaining to the investigation, caused the Leaked Records to be disclosed to one or more employees or agents of Fox News.”