Cooper ruled that Herridge violated his Aug. 1 order demanding that Herridge reveal how she learned about a federal probe into Chen, who operated a graduate program in Virginia. Herridge, who was recently laid off from CBS News, wrote the stories in question when she worked for Fox News in 2017.
Chen was never charged as a result of the investigation, which sought to determine whether she had lied about her military service and whether her school’s student database could be accessed from China, as the Fox News reports revealed. But after those stories brought the probe to light, Chen sued the federal government alleging that Herridge had been given leaked materials that violated her privacy, including photographs and images of internal government documents.
Herridge sat for a deposition in late September but refused to reveal how she obtained the information, citing her First Amendment rights and telling Chen’s lawyer, “I must now disobey the order.”
“The Court does not reach this result lightly,” the judge wrote. “It recognizes the paramount importance of a free press in our society and the critical role that confidential sources play in the work of investigative journalists like Herridge. Yet the Court also has its own role to play in upholding the law and safeguarding judicial authority.”
Herridge’s attorney, Patrick Philbin, said he and his client “disagree” with the judge’s decision and intend to appeal it.
“Holding a journalist in contempt for protecting a confidential source has a deeply chilling effect on journalism,” Fox News said in a statement. “Fox News Media remains committed to protecting the rights of a free press and freedom of speech and believes this decision should be appealed.”
First Amendment advocates had disagreed with Cooper’s ruling forcing Herridge to reveal her source, arguing that journalists can perform their public service function only if they are able to protect the identities of their confidential sources.
“The court’s order holding journalist Catherine Herridge in contempt for refusing to name her confidential source is unfortunate and should disturb anyone who cares about press freedom,” said Caitlin Vogus, deputy director of advocacy at Freedom of the Press Foundation. “When courts force journalists to burn their sources, it absolutely undermines the public’s right to know.”
Still, Gabe Rottman of the Reporters Committee for Freedom of the Press called it “a relief” that Herridge will be able to pursue an appeal without having to immediately pay daily fines.
Andrew C. Phillips, an attorney representing Chen, said in a statement that “today’s ruling is an important one to ensure that government officials can be held to account for outrageous abuses of power.”
Herridge had asked to be fined only $1 per day, but the judge decided that was not sufficient. “Such a trivial sanction would not serve the fundamental purpose of civil contempt: ensuring compliance with a court order,” the judge wrote. “It would permit Herridge to pay pittance in perpetuity while continuously violating the Court’s directive and effectively vitiating Chen’s right to pursue her Privacy Act claim.”
But the judge did not bar her from accepting funding “from any other persons or entity” to pay the fine, as Chen had requested.
In 2005, five national reporters were held in contempt and ordered to pay $500 per day until they revealed sourcing information for stories about a government probe of nuclear scientist Wen Ho Lee. Ultimately, the case was settled for $750,000.
A USA Today reporter was held in contempt in 2008 and forced to face fines of up to $5,000 per day for not revealing her source for a story identifying a former Army scientist as a person of interest in the 2001 anthrax attacks. That case was also settled.
First Amendment advocates see Herridge’s case as a reason Congress should approve a federal shield law protecting reporters from having to disclose their sources. In his ruling, the judge nodded to the possibility of “a new federal common law newsgathering privilege” that would be broader than the laws on the books.
This article was updated to include comments from Andrew C. Phillips, an attorney representing Yanping Chen, and Patrick Philbin, an attorney representing Catherine Herridge.
