Latest ruling in Herridge case highlights need for federal shield law

The latest decision in journalist Catherine Herridge’s legal fight over confidential sources highlights how fragile the reporter-source privilege remains in the absence of a federal shield law. Not only did the court refuse to reconsider the order forcing Herridge to identify her confidential sources, but it also asked the public to accept its decision without immediate access to the court records we need to fully understand it.

On May 22, the appeals court declined to revisit its prior ruling requiring Herridge to name her confidential sources for her 2017 reporting about an FBI investigation into scientist Yanping Chen. Chen, who had founded an online college that received government funding, sued the FBI and other government agencies, claiming that federal officials damaged her career by leaking to the press. She then subpoenaed Herridge, arguing it was necessary to identify the source of those leaks.

Because there’s no federal shield law, Herridge tried to rely on the First Amendment and common law protections that many courts have recognized for reporters. But both the trial court and the U.S. Court of Appeals for the District of Columbia Circuit rejected those arguments.

That outcome, and the court’s latest refusal to reconsider it, should concern every journalist who depends on confidential sources. The reporter’s privilege exists because source confidentiality serves the public interest. Whistleblowers and others often come forward only because they believe journalists can protect them.

In Herridge’s case, however, the courts treated the public interest as secondary or even irrelevant. They focused narrowly on whether Herridge’s testimony was essential to Chen’s claim and whether Chen had exhausted other avenues to obtain the information she sought.

That approach turns the reporter’s privilege into a weak procedural obstacle, rather than the meaningful safeguard for newsgathering it’s supposed to be. The D.C. Circuit has previously said that it should be the rare, exceptional case where a reporter is compelled to reveal her sources. But the decision in the Herridge case means that other journalists may be more likely to be forced to do so in the future.

The secrecy surrounding certain documents in Herridge’s legal fight makes matters even worse.

Herridge argued that she shouldn’t be forced to reveal her sources because any harm Chen suffered wasn’t caused by the alleged leaks, but rather by a later, independent decision by the Department of Defense to terminate the participation of the college Chen founded in a government tuition reimbursement program “on national security grounds.” But key records related to the department’s decision were sealed in the trial court and remain sealed, even though they directly relate to the justification for forcing Herridge to reveal her sources.

As a result, the public can’t fully evaluate whether the courts properly weighed the factors before ordering Herridge to comply with the subpoena. Parts of the oral argument in Herridge’s appeal were even held behind closed doors because of the sealed materials. That’s hard to square with the principle that court proceedings should happen in public view.

And that’s especially true of court proceedings that reshape constitutional rights, like this one. Freedom of the Press Foundation (FPF) and Herridge separately asked the appeals court to unseal the documents and hearing transcript. But in its May 22 ruling, the court declined to do so, sending the issue back to the district court instead. It didn’t explain why it wouldn’t act itself, even though its own rules allow it to unseal district court records “when the interests of justice require.”

This delay matters. The right of access to court proceedings is supposed to be contemporaneous, so the public can understand and assess in real time whether judges are doing their job properly. Courts shouldn’t be making groundbreaking decisions on the reporter’s privilege by relying on partially sealed arguments and secret court records, even if they’re later unsealed.

Herridge may now seek Supreme Court review. But the Supreme Court only accepts a small fraction of the cases it’s asked to hear each term, and there’s no guarantee that it would improve the reporter’s privilege even if it takes her case.

It’s understandable if Herridge decides that petitioning the Supreme Court is necessary to protect her sources and her professional ethics. But the best solution in the longer term for other journalists would come from Congress. Lawmakers should pass a shield law like the PRESS Act to provide clear, strong protection against compelled disclosure of journalists’ sources. Without a federal shield law on the books, confidential newsgathering may continue to be eroded, one subpoena at a time.