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Subpoenas to Fox News quashed while reporter must testify on confidential source
On Aug. 1, 2023, a U.S. district judge granted Fox News’ motions to quash subpoenas requesting testimony and documents related to a 2017 series of investigative articles.
Fox News was subpoenaed in a privacy case brought by Yanping Chen, a scientist who was the subject of a series of investigative articles published by the outlet 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 the articles.
Chen subpoenaed Catherine Herridge, then a reporter for the outlet, 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 August, U.S. District Judge Christopher Cooper upheld the subpoena requiring Herridge to testify about her confidential source, but quashed the subpoena seeking her documents. Cooper agreed that Fox News’ subpoenas were duplicative of Herridge’s, and agreed to quash them while Chen exhausted her discovery efforts involving Herridge.
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.
“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.