Fox News subpoenaed to reveal confidential source, editorial process

Fox News was subpoenaed in May 2022, about coverage of a federal investigation into a Chinese American scientist that later led to a privacy lawsuit.

The network 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 Fox News correspondent Catherine Herridge.

Chen subpoenaed Fox News on May 19, 2022, seeking documents and communications from December 2012 through July 2018 concerning the published excerpts from the federal investigation, as well as information sufficient to identify Herridge’s source. A representative from Fox was also ordered to appear to testify via Zoom about the reporting and the network’s editorial review processes.

Over the next month, Chen also subpoenaed Herridge and producers Pamela K. Browne and Cyd Upson, who shared bylines on the articles. 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.

Attorney Patrick Philbin — who is representing all of the Fox News defendants — filed motions to quash the latter two subpoenas on Aug. 1, 2022.

“The public interest in First Amendment protections that promote the functioning of a free press is at its height in a case like this involving reporting on issues of national security,” Philbin wrote. “Without confidential sources, the press could not uncover information vital for informing the public — especially about the inner workings of government.”

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.