The hidden legal question at the heart of the Herridge contempt case

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On Feb. 29, Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia held journalist Catherine Herridge in contempt for refusing to disclose her sources in a Privacy Act case. As we’ve written, such cases are rare, but notable when they occur. (The contempt sanction is significant — $800 a day until Herridge complies — but Judge Cooper thankfully held off on imposing the fine while Herridge appeals. He also rejected calls from the plaintiff to follow the approach in the Steven Hatfill case, where, in 2008, Judge Reggie Walton barred reporter Toni Locy from accepting funds from others to pay her contempt sanction.)

The facts of the case are pretty straightforward. The plaintiff ran a school that enrolled many servicemembers. The Justice Department conducted a counterintelligence investigation into the plaintiff that did not result in any charges. Herridge, then a correspondent at Fox News, reported on the investigation and included material that the plaintiff says must have been leaked by government officials, in violation of the federal Privacy Act. While Herridge is not a party, the plaintiff seeks to force her to identify her source or sources.

What’s not as straightforward is the legal question at play in the contempt finding: that is, the scope of the reporter’s privilege in this jurisdiction, which protects reporters from having to name their sources. The U.S. Court of Appeals for the District of Columbia Circuit has unfortunately left the answer to that question muddy. Judge Cooper felt that he had to apply “binding” precedent to hold Herridge in contempt. But, as Judge Cooper noted, the Herridge case could present an opportunity for the D.C. Circuit to finally clear up the answer, and, in doing so, “recalibrate” the reporter’s privilege in D.C. federal courts.

The whole issue has its origins in an organized crime investigation. Anthony Zerilli was the alleged head of the “Detroit Partnership” in the 1970s. During criminal proceedings against him in 1971 in California, the government revealed that it had planted a listening device, without a warrant, that picked up Zerilli discussing illegal activities. A judge ordered the fruits of the surveillance sealed at the Justice Department, with very limited access. In 1976, the Detroit News published a series called “Inside the Mafia” referencing information gleaned from the bug. Zerilli sued under the Privacy Act and tried to depose the reporter, who refused to identify his sources, citing the reporter’s privilege. Both the district court and the D.C. Circuit found that the privilege applied.

The Zerilli case, however, left open the precise contours of the privilege.

The D.C. Circuit held that when “striking the balance between a civil litigant’s interest in compelled disclosure and the public interest in protecting a newspaper’s confidential sources,” courts should be “mindful of the preferred position of the First Amendment.” It also held that in the “ordinary” matter the reporter’s privilege should apply and that compelled disclosure should be available in only the “exceptional case.” To do otherwise would diminish the “value” of the privilege — that is, the benefits to the public of the freer flow of information when sources are “confident” that compelled disclosure of their identities is unlikely.

The court then identified “a number of more precise guidelines” that courts could use in the balancing, namely whether the information sought goes to the “heart of the matter,” whether the plaintiff made efforts to uncover the information from alternative sources, and whether the reporter is a party. Courts refer to the first two as the “centrality” and “exhaustion” requirements.

The question then is whether centrality and exhaustion are the only factors a court should consider in weighing an assertion of the reporter’s privilege against a plaintiff’s need for compelled discovery. While Judge Cooper recognized that Zerilli did not forbid consideration of other factors, he held that “district courts should anchor their analysis” to those “guideposts.” He based that on the D.C. Circuit’s decision in the Wen Ho Lee case, Lee v. U.S. Department of Justice. (Lee is a scientist who sued the government in the 2000s under the Privacy Act for leaks connected with an espionage investigation into him for his work at Los Alamos, and he sought to force numerous reporters to identify their sources in his civil lawsuit.)

Here’s the problem. In virtually every Privacy Act case, those two requirements will be met. As then-Judge Merrick Garland wrote in the Lee case, “[b]arring an unexpected confession by the leaker, in most such cases the subject of the leak will be able to satisfy the centrality and exhaustion requirements” and if the “privilege is limited to those requirements, it is effectively no privilege at all.” (Judge Garland was one of three judges dissenting from the decision of the whole D.C. Circuit not to reconsider the denial of the privilege in Lee.)

In our friend-of-the-court brief before Judge Cooper, we elaborated on that concern in more detail. But the bottom line is that the rule in the D.C. Circuit should be that courts can and must take the broader harm to the “value” of source identity protection into account when striking the balance. This is particularly true in national security cases where sources face possible loss of their clearance, employment, and, indeed, liberty if their identities are disclosed. Put simply, if the information they provide is likely to lead to a lawsuit and their public identification, they won’t provide it.

Aside from that open question regarding the reporter’s privilege in D.C. federal court, the Herridge case also starkly illustrates the need for a federal shield law. The PRESS Act, which passed the House of Representatives without opposition in January and is currently pending in the Senate Judiciary Committee, would prevent these kinds of confrontations between the free press and the civil justice system.

It remains to be seen how the Herridge case will ultimately play out. To the extent it offers the D.C. Circuit an opportunity to clarify and “recalibrate” the reporter’s privilege, the court should take it.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.