The scope of the public’s right to know should be decided in public. Who would argue with that?

But on Nov. 18, 2024, the federal appellate court for the D.C. Circuit may hold a secret hearing about whether investigative journalist Catherine Herridge can be fined $800 per day for refusing to comply with a judicial order to divulge her sources. 

If the court rules against Herridge, every potential government whistleblower in the nation’s capital will think twice before talking to journalists in confidence. That means that in the second Trump administration, we’ll all know less about government waste, corruption, and malfeasance.

In other words, the stakes are high, and we’re entitled to know the full basis for the appellate court’s decision, whatever it may be. 

Herridge’s reporting that led to that contempt finding pertained to a decade-old FBI investigation of a scientist and university president’s alleged ties to the Chinese military. The scientist, Yanping Chen, sued the FBI and other federal agencies for allegedly violating her rights under the federal Privacy Act. 

The court sealed documents relating to the FBI investigation at the center of the lawsuit, even though the documents in question are not classified and can’t jeopardize the investigation, which is over. It’s unclear whether the public’s interest in the case, and the First Amendment, were factors in the decision to seal the records.

In any event, Chen argued that the secrecy surrounding the documents necessitates the closure of hearings (or portions of hearings) that relate to those documents. Herridge filed her own motion opposing secret hearings, arguing that “It would be incongruous if the press were barred from an oral argument that will set the bounds of press protections under the First Amendment.”

But the appellate court on Oct. 28 effectively kicked the can down the road, granting, for now, Chen’s request to bifurcate the hearing into open and closed sessions, while reserving its right to reconsider at a later date (likely on the spot during the hearing, without adequate time for Herridge or any interested news outlets to prepare thorough objections).

That means journalists covering the hearing could be left holding their notebooks in an empty courtroom while the lawyers and judges retreat behind closed doors to hash out the future of the reporter’s privilege, in the jurisdiction where it’s arguably most needed. 

That is, unless the appellate judges see the light (or, more accurately, let the public see it) between now and the 18th. 

PRESS Act would solve this problem

Of course, Congress could moot all of this by passing the PRESS Act, the federal shield bill that would protect journalist-source confidentiality. 

Herridge is a major proponent of the bipartisan legislation, and her case underscores the holes in the arguments against it (which, we should note, are only advanced by a small minority of lawmakers — the bill has twice passed the House unanimously and has Senate sponsors from both parties). 

For one, Republicans who perceive the bill as a gift to the “liberal media” should rethink that assumption. Herridge’s investigative work is highly respected across partisan lines (Sen. Ted Cruz even filed a brief in support of her appeal) and the reporting at issue in the case comes from her tenure at Fox News. She’s not the first Fox reporter whose sources have been targeted.

That said, Fox News isn’t who needs the PRESS Act most — that would be independent journalists and small upstart outlets without armies of lawyers, many of which produce right-leaning content that counters the mainstream narratives conservatives disfavor. 

And Herridge’s case turns the unsubstantiated notion that a reporter’s privilege would undermine national security on its head. The government, for better or worse, has ample means to identify leakers without subpoenaing journalists, and the PRESS Act contains national security exceptions that should nullify any concerns about wild hypotheticals, like a journalist withholding information that could stop an imminent terrorist attack. 

While those national security fears are rooted in fantasy, here’s the reality: The absence of the PRESS Act may allow someone suspected of being in cahoots with China to pry into the U.S. intelligence community’s dealings with journalists (that’s assuming Chen’s Privacy Act theory that the government disclosed the investigation to Herridge is correct — we have no idea). 

By the way, if you’re an elected official concerned about Chinese surveillance, that seems like a significantly bigger problem than whether China can theoretically track where American teenagers perform their TikTok dances. And it’s a problem that can be solved by strengthening, not weakening, the First Amendment. 

It’s time to pass the PRESS Act so no future investigative journalists need to risk crippling fines or imprisonment to protect their sources. But until then, court proceedings that decide these critical issues for our democracy need to be conducted with full transparency.