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Judge orders journalist to reveal confidential source
On Aug. 1, 2023, a U.S. district judge upheld a subpoena requiring former Fox News journalist Catherine Herridge to testify about a confidential source, but quashed a subpoena seeking her documents.
U.S. District Judge Christopher Cooper ruled that Herridge must testify in a privacy case brought by Yanping Chen, a scientist who was the subject of a series of investigative articles published with Fox News in 2017. Chen filed a lawsuit in 2018 against the departments of Justice, Defense and Homeland Security for violations of the Privacy Act, alleging that a government official had leaked materials from an investigation into Chen’s possible foreign military ties, excerpts of which were included in Herridge’s articles.
Chen subpoenaed Herridge and Fox News in mid-2022 to determine the identity of the alleged leaker, demanding testimony and documents from each. An attorney for both the journalist and news outlet filed motions to quash Chen’s subpoenas, arguing at a court hearing in May 2023 that they posed a threat to First Amendment protections.
In upholding the subpoena ordering Herridge to testify about her reporting and any sources, Cooper ruled that the identity of the confidential source was central to the lawsuit’s claim. “Chen’s need for the requested evidence overcomes Herridge’s qualified First Amendment privilege,” he wrote.
The motions to quash the Fox News subpoenas were granted in full, with the caveat that if Herridge is unable to provide Chen with the information she seeks, Chen may reissue the subpoenas to the outlet.
Journalist Catherine Herridge was subpoenaed on June 16, 2022, about coverage of a federal investigation into a Chinese American scientist that later led to a privacy lawsuit.
Fox published the investigative online articles and broadcast reports from February to June 2017. Multiple agencies were investigating the possible foreign military ties of Yanping Chen and the university she founded in the Washington, D.C., metro area.
The articles cited, and included excerpts of, materials from the investigation, such as FBI interviews, Chen’s immigration forms and photos of her in a Chinese military uniform. The six-year investigation was concluded in 2016. No charges were brought against Chen.
In December 2018, Chen sued the FBI and the departments of Justice, Defense and Homeland Security, arguing that investigators violated her rights under the Privacy Act when her personal information was shared with then-Fox News correspondent Herridge.
Chen subpoenaed Herridge on June 16, seeking documents and communications from December 2012 through July 2018 concerning the published excerpts from the federal investigation, as well as sufficient information to identify her source. According to court records reviewed by the U.S. Press Freedom Tracker, Herridge was also ordered to appear to testify about her reporting and her source or sources.
Fox News and producers Pamela K. Browne and Cyd Upson — who were also bylined on the articles — received similar subpoenas for documents and testimony. The Tracker has documented each of the subpoenas here.
Upson and Browne ultimately agreed to provide sworn statements in place of documents or testimony, according to court filings. In exchange, Chen agreed to withdraw her subpoenas to Browne and Upson, but continued to pursue the subpoenas to Fox and Herridge, a subsequent court filing confirmed.
As part of the motion, Herridge submitted a declaration confirming that she did not disclose her sources to anyone at Fox and stating that a forced disclosure by the court would have a ripple effect for all national security journalists and whistleblowers.
“Confidential sources, and the information they provide, are essential for informing the public on matters relating to national security, including information relating to the military, espionage, government surveillance, and homeland security,” Herridge wrote. “Fear of exposure will make sources less likely to serve as whistleblowers or otherwise act as confidential sources for such matters.”
U.S. District Judge Christopher Cooper heard arguments concerning the motions on May 30, 2023. Courthouse News reported that he seemed reluctant to accept Philbin’s argument that the subpoenas posed a threat to First Amendment protections. Philbin did not respond to an emailed request for comment.
Cooper did not indicate when he would rule on the motions to quash, according to Courthouse News.