How far does freedom of the press go?

By Deacon Mike Manno

(The Wanderer) – When she was at FOX News, Catherine Herridge was one of my favorite reporters. I was sad a few years ago when she left FOX to go to CBS, but I was happy that a mainstream news outlet recognized her talents and abilities. I couldn’t help but to feel sorry for her when it was announced that she and a slew of others had been let go by CBS.

          Yet I felt even worse when I found that a D. C. district court had fined her $800 a day for refusing to disclose a confidential source in a lawsuit against the government by an academic who had apparently been under FBI investigation.

          When she was reporting for FOX, Ms. Herridge reported on a story involving Dr. Yanping Chen, a Chinese-American who was president and professor at the University of Management and Technology in Arlington, Va.

          Dr. Chen, Ms. Herridge found, had been investigated by the FBI over ties Dr. Chen had with the Chinese military and whether she had lied on her immigration documents. The FBI investigation ended without any charges being filed. About a year later Ms. Herridge reported that Dr. Chen had been a target of the investigation.

          Dr. Chen sued the government for leaking the information to the press in violation of the federal Privacy Act which protects individuals’ private information that has been collected by the government.

          Dr. Chen subpoenaed Ms. Herridge and asked her to name the confidential informant who told her about the investigation. Ms. Herridge refused to name her source. Chen’s attorneys than asked for a court order directing Ms. Herridge to answer the question and name her source. U. S. District Judge Christopher Cooper granted the request and ordered that the information be given to Dr. Chen.

          When she refused, Ms. Herridge was held in contempt of court and ordered to pay a fine of $800 a day until she complied.  He did, however, suspend the order for 30 days to give Ms. Herridge time to file an appeal. That, according to the latest press reports, is where the matter stands at this writing: the judge insists, Herridge refuses, and Chen awaits.

          An interesting side-twist to the story involves Herridge and  CBS. After CBS laid Ms. Herridge off it seized her laptop, phone, and all her notes, thus CBS now has the information Dr. Chen wanted. CBS is mum on the why or what of the seizure but it appears that the network’s lawyers are prepared to make the argument that the materials belong to CBS. SAG-AFTRA, a group of broadcast journalist, has now entered the fray demanding that CBS return the materials to Herridge.

          This leaves an interesting question: if the disclosure materials are now in the possession of CBS, will the network become more entangled in the Chen-Herridge conflict, and, if so, will Chen’s lawyers seek the information from CBS? If the network complies what will happen with Ms. Herridge and her fines? Of course if complicit in the turn-over of materials, what is the future of investigative journalism at the network?

          The issue, however, is broader than one poor reporter and a litigant who needs the corroboration that apparently only Herridge (and CBS) can give to her claim that the leaked information came from government sources. It has to do with how far the First Amendment goes to protect press freedom when the information gathered was done so by a whistleblower who revealed the information only after he was assured that his name would not be revealed.

          The question is one of qualified privilege. It means that a reporter who has obtained information through a promise of confidentiality can claim that privilege against revealing that informant in any legal proceeding including grand juries.

          So where do these journalist stand under the law? Well that depends on whether a state court or federal court is involved. State courts tend to be more favorable to the claim of qualified privilege than the federal courts. That is because most states have statutory, constitutional, or common law protections for reporters. In these jurisdictions the courts basically weigh the balance between the rights of the public to know the information that came from the reporter – which might never have been obtained without a promise of confidentiality – and the right of the state to acquire information that it needs to pursue a governmental interest.

          Federal courts, on the other hand, have been more reluctant to protect the journalist from divulging the information. There is not federal statutory shield law as is found in many states. But while federal courts are less likely to protect the reporter it has been done in some exigent circumstances. But what we often see is the reporter’s claim denied and the journalist is found in contempt and jailed until such time as he divulges the information or the case or grand jury ends. Many might remember the case of New York Times reporter Judith Miller who was jailed for 85 days for violating a court order to testify.

          Interestingly, before he became vice president, Rep. Mike Pence (R-Indiana) authored a bill to protect journalists in federal courts. Several such bills have been proposed but failed to pass. Another such bill, HR 4250, the PRESS Act (Protect Reporters from Exploitative State Spying) did pass the House without objection in January and is currently being considered by the Senate Judiciary Committee. It would bar federal courts and executive agencies from forcing reporters to identify confidential sources or disclose sensitive newsgathering material, except in very limited circumstances.

          According to the Reporters Committee for Freedom of the Press, the act includes only two exceptions: to prevent or identify the perpetrator of an act of terrorism, or to prevent a threat of imminent violence, significant bodily harm or death, including specified offenses against a minor. 

          As an old reporter who’s been in the trenches, I support the act. The free-flow of information is more important to the general public than governmental reasons to prevent disclosure in the vast majority of cases, Ms. Herridge’s included.

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(You can reach Mike at: DeaconMike@q.com and listen to him every weekend on Faith On Trial or podcast at https://iowacatholicradio.com/faith-on-trial/)