Another week, yet another story highlighting the need for Congress to pass the PRESS Act and protect journalists and their confidential sources. This time, a judge raised the lack of a federal shield law in response to Fox News’ efforts to fend off demands to reveal confidential sources.
Fox News and its former reporter Catherine Herridge have moved to block demands to identify their sources by Yanping Chen, a Chinese-American scientist who is suing the FBI for violating the federal Privacy Act by allegedly leaking information about her. In 2017, Herridge published several articles for Fox News about Chen and government investigations into her “taxpayer-funded school that markets to the military.”
Both Fox News and Herridge, now a senior investigative correspondent for CBS News, argue that Chen’s demands violate the reporter’s privilege found in the First Amendment. However, in a hearing last week, D.C. District Judge Christopher Cooper mulled the impact of Congress’ failure to adopt legislation like the PRESS Act, noting that lawmakers have “not seen fit to pass a reporters’ shield law.” Cooper also reportedly questioned if the threats to the First Amendment posed by the subpoenas were “overstated.”
The lack of a federal shield law doesn’t lessen journalists’ First Amendment right to refuse to disclose confidential sources. But that doesn’t mean we don’t need a federal shield law to codify that right. As we’ve explained before, a federal shield law like the PRESS Act would benefit journalists and the public in a number of important ways.
First, it would eliminate any question about whether the law protects journalists from being forced to out their sources in anything less than the most compelling circumstances. Cooper’s questioning demonstrates the need for the certainty that the PRESS Act would bring.
In addition, press freedom concerns aren’t overblown when considering the impact of demands for confidential sources, even in civil cases. Compelling reporters to reveal confidential sources undoubtedly threatens the First Amendment, whether the demand is made by the government or by private litigants. Sources who are concerned about being dragged into civil lawsuits, fired or otherwise retaliated against may not be willing to speak to reporters unless they can be promised confidentiality. They’ll be less likely to do so if reporters can routinely be forced to violate those promises, and that, in turn, means less newsworthy information makes it to the public.
Demands from people suing each other for journalists’ testimony or the documents they’ve gathered are also a drain on newsroom resources and divert journalists from their work of informing the public. The very purpose of a reporter’s job — to investigate newsworthy events and issues — means they’re often gathering information on controversial subjects that may result in a lawsuit. Unfortunately, that also means that reporters are no strangers to private parties trying to use them and their reporting to prove or defend their cases. Courts shouldn’t open the floodgates to these kinds of demands. Forty-nine states have recognized as much by passing reporter’s privilege laws.
Ultimately, when the judicial system requires journalists to burn their confidential sources, it harms the public. To protect our right to know, we need courts to throw out subpoenas like these. And we need Congress to pass the PRESS Act.