Chen v. FBI

Court: U.S. District Court for the District of Columbia

Date Filed: Jan. 4, 2024

Background: In 2018, Yanping Chen filed a Privacy Act lawsuit against the Department of Defense and two other federal agencies for allegedly leaking information to former Fox News correspondent Catherine Herridge (now at CBS News) about a counterintelligence investigation related to Chen that had been closed without charges. As part of that lawsuit, Chen issued subpoenas seeking testimony and documents related to Herridge’s confidential sources in the case.

A federal district court in Washington, D.C., quashed the subpoena seeking documents, but it rejected Herridge’s efforts to quash the subpoena seeking the journalist’s testimony. The court held that the First Amendment privilege was outweighed because the information requested in Chen’s subpoena for Herridge’s testimony was essential to her claim and that she had sought, without avail, the information from non-media sources first.

When Herridge attempted to appeal that order, the district court refused to allow her to do so, saying that in order to challenge the order on appeal, she must violate it and be held in contempt. Herridge appealed the order, but the U.S. Court of Appeals for the D.C. Circuit agreed with the district court.

Herridge is now challenging Chen’s application to have the court hold her in contempt.

Our Position: If the district court declines to modify its disclosure order and finds Herridge in contempt, it should impose only nominal sanctions and stay them while Herridge pursues her appeal of the court’s denial of her motion to quash Chen’s subpoena.

• The requirement that Herridge be found in contempt for refusing to identify her source or sources before she can appeal the merits of the denial of her privilege assertion poses significant threats to the newsgathering and reporting process that transcend the facts of this case.
• Recent changes to the Department of Justice’s policy on using subpoenas against the press underscore the sensitivity of forcing journalists to disclose confidential source information.
• Confidential sources are essential to the free flow of information to the public.

Quote: “The ability of journalists to assure sources that their identities will remain confidential is central to preserving the press’s structural role as a check on government, particularly in the national security sphere. When sources stop talking to journalists because they fear that their identities cannot be protected, that loss impairs the electorate’s ability to make informed political, social, and economic decisions, and to hold elected officials and others in power accountable.”

Related: The Reporters Committee previously wrote about Herridge’s efforts to fight the subpoena in two separate editions of The Nuance, the weekly newsletter produced by RCFP’s Technology and Press Freedom Project team. Sign up to get it delivered straight to your inbox.

Update: On Feb. 29, 2024, Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia held Herridge in contempt of court and ordered her to pay $800 per day for refusing to disclose her sources. However, the judge temporarily stayed the decision, giving the journalist an opportunity to appeal without facing daily fines. On appeal, the Reporters Committee and 25 news media organizations filed a friend-of-the-court brief on June 27, 2024, urging the U.S. Court of Appeals for the D.C. Circuit to reverse the district court’s order and to ensure that the legal analysis regarding whether the reporter’s privilege in the Circuit applies properly takes into account the broader harm to newsgathering if journalists are forced to identify their sources in Privacy Act cases.

D.C. Circuit brief:

District Court brief: