A recent court filing by veteran journalist Catherine Herridge demonstrates the unpredictability journalists face when they commit to maintaining source confidentiality. It underscores the need for Congress to pass the PRESS Act — the bipartisan bill to end subpoenas and surveillance of journalists except in clearly defined emergency scenarios.

Herridge, known for her time at CBS News and Fox News, is appealing a federal judge’s order holding her in contempt of court for refusing to burn her sources for her reporting on an online university’s alleged ties to the Chinese military. The school’s president, Yanping Chen, filed privacy claims against the FBI over alleged leaks that enabled Herridge’s reporting.

Journalists and sources face confusion, unpredictability

Herridge’s April 3 filing — in response to Chen’s request to rush the appeal — explains that the journalist and Chen disagree as to which legal test should determine whether Chen can force Herridge to reveal her sources to bolster her lawsuit.

Herridge argues that, under court precedents interpreting the First Amendment, judges should consider “multiple factors in a broad assessment” to “weigh the public interest in protecting the reporter’s sources against the private interest in a compelled disclosure.” Chen, on the other hand, wants the court to consider only how important Herridge’s sources are to her case and whether Chen has exhausted alternative avenues to find the information.

A lower court’s decision agreeing with Chen, and ordering Herridge to reveal her sources, was widely criticized by press freedom advocates. The appellate court should reverse that order and protect Herridge’s sources. But the problem is that the kinds of multi-factor balancing tests the court is tasked with interpreting are so subjective and amorphous that any judge who wants to find a reason to out a journalist’s sources can do so.

And the dispute between Herridge and Chen deals only with the U.S. Court of Appeals for the D.C. Circuit. There are 12 other appellate circuits in our federal court system, each of which has a different law governing journalist-source confidentiality. Some recognize a relatively broad privilege, and some recognize essentially none at all.

That means journalists who promise sources confidentiality have to be prepared to be held in contempt — or potentially spend time in jail — if they’re subpoenaed in a jurisdiction with unfavorable law. Even in appellate circuits that do recognize a limited reporter’s privilege, like the D.C. Circuit, the law is often ambiguous.

Judicially crafted tests tend to be highly subjective. The intent of these tests may be to avoid confining judges with rigid rules, but the result is arbitrary outcomes and unpredictability for journalists and sources. Plus, at least to some extent, the game is rigged — when tasked with balancing the interests of the judicial branch against the interests of the Fourth Estate, judges have an obvious inherent bias toward the former.

It’s not just about private litigants like Chen — presidential administrations from both parties have repeatedly spied on journalists and their technology providers (which the PRESS Act would also prohibit). And they’ve been quick to threaten journalists with jail for not outing sources. It turns out that, no matter how much government officials claim to value press freedom, they inevitably can’t resist the urge to harass journalists who embarrass them.

In this legal landscape, potential whistleblowers can’t be blamed for hesitating to trust journalists to maintain their confidentiality when threatened with monetary sanctions and incarceration. Odds are that for every source that does come forward to reveal corruption or malfeasance, another stays on the sidelines due to fear of being outed.

It’s time to pass the PRESS Act

The judge in Herridge’s case noted that, if Congress wanted to broaden protection of journalist-source confidentiality, it should pass a law to do so. If he got one thing right, it’s that.

The PRESS Act would finally do away with the unpredictability journalists and their sources face when dealing with the federal government and federal courts. It would prohibit litigants and government officials from peering into reporter’s notebooks and inboxes except when there’s a legitimate threat of terrorism or imminent violence.

The PRESS Act may mean that prosecutors, as well as plaintiffs like Chen, will have to work a little harder to make their cases. But that’s a small price to pay to protect the immense value that a free press brings to our democracy. Journalists, after all, don’t work for the government — they watch over it. And history shows that lawyers who unsuccessfully claim to need a journalist’s sources to build their cases are ultimately able to find another way.

The PRESS Act passed the House without objection and is now pending in the Senate Judiciary Committee. It’s sponsored by the highest-ranking members of each political party in the committee — Democrat Dick Durbin and Republican Lindsey Graham — as well as Republican Mike Lee and Democrat Ron Wyden. Majority Leader Chuck Schumer recently told the New York Post that he’d like to see it pass this year.

It’s time for Congress to finally step in and protect journalists and their sources from surveillance. Herridge should win her appeal, even without the PRESS Act, because the public interest in journalist-source confidentiality far outweighs Chen’s interest in discovery for her lawsuit. But it should never have gotten to the point of Herridge having to appeal a contempt finding. Absent an unusual emergency, snooping on journalists should be a non-starter.