Need for Evidence Overcomes Qualified Reporter’s Privilege

In a case highlighting how Privacy Act rights can pierce qualified First Amendment privileges, a federal district court issued a civil contempt order against a reporter who refused to reveal the identity of sources who supplied allegedly leaked materials. ABA Litigation Section leaders counsel practitioners representing news organizations and reporters to fully investigate the extent of any applicable state shield laws and to caution clients to refrain from featuring leaked information that is nonvital to the storytelling. 

Court Orders Journalist to Disclose Sources

In Chen v. Federal Bureau of Investigation, the plaintiff filed a Privacy Act lawsuit against the FBI, the Department of Defense, and two other federal agencies in the U.S. District Court for the District of Columbia, alleging they leaked materials—products of a years-long investigation into comments made by the plaintiff on U.S. immigration forms—to then–Fox News Network correspondent Catherine Herridge. After “scores of document requests, interrogatories, and requests for admission,” as well as “18 depositions of current and former government employees,” “over a dozen third-party subpoenas,” and “declarations from 22 government personnel,” the plaintiff still lacked direct evidence of the source of the leaked materials. The plaintiff therefore served deposition subpoenas on both Fox and Herridge, who in response moved to quash the subpoenas and asserted their qualified First Amendment privilege.

Court Sanctions Journalist

Applying a framework crafted over forty years ago by the U.S. Court of Appeals for the District of Columbia Circuit in Zerilli v. Smith, the district court concluded that the two guideposts of “centrality” and “exhaustion” weighed heavily in the plaintiff’s favor. As to the first factor, the court observed that the identity of the individuals who leaked information was central to the plaintiff’s claim. Second, the court noted that the plaintiff resorted to asking Herridge only after she had exhausted “every reasonable alternative source of information” to uncover the leaker’s identity. 

After considering additional First Amendment and common law newsgathering privilege arguments, the district court denied Herridge’s motion to quash and ordered Herridge to “divulge her source and answer questions about any non-privileged other matters relevant to the plaintiff’s Privacy Act claim.” Herridge sat for the deposition, but she declined to disclose her source’s identity or provide information on when and in what form she received the materials. 

The district court held Herridge in civil contempt and imposed a fine of $800 per day until she complied with the previous order. “[T]o provide [her] ample room to litigate [her] assertions of privilege fully in the court of appeals before being coerced into compliance,” the court stayed the contempt sanction for 30 days, or until completion of the appeal. At the time this article was written, the parties were still briefing Herridge’s appeal before the appellate court.

A “Soft Contempt Order”

Given the “not tremendous” amount of the daily fines imposed, in conjunction with the temporary stay, the sanction is a “soft contempt order, done more as a matter of procedure than a matter of pure punishment,” states John B. Strasburger, Houston, TX, Co-Chair of the Litigation Section’s Commercial & Business Litigation Committee.

The plaintiff “had literally gone through several years of discovery and sought the information through numerous other avenues before seeking to take the reporter’s deposition and asking where she obtained the information,” notes John Libby, Los Angeles, CA, Co-Chair of the Newsletter Subcommittee of the Section’s Pretrial Practice & Discovery Committee. In the district court’s words, the deposition subpoena came at the end, and not the beginning of a “five-year odyssey”.

“It’s ultimately a very, very tough call” weighing “people’s rights to face their accusers against the free flow of information,” observes Robin Nunn, Washington, DC, Co-Chair of the Distance Learning Subcommittee of the Section’s Pretrial Practice & Discovery Committee. Legal fights, like this, which pit “protecting sources and information” against “subpoenas and government searches and seizure,” emerge “quite frequently” and are a “sort of ongoing debate in certain communities,” says Nunn.

A “Patchwork” of State Laws

With no federal established limit on compelled disclosures, a “patchwork” of state laws has emerged where different sources, subject to different standards, might be revealed depending on which laws are in play. About 40 states and the District of Columbia have shield protections for sources and materials. Attorneys dealing with these issues should identify their state’s privilege laws and “seek to understand the scope and strength of those laws so you can appropriately advise your clients in case a request for collection of information comes across your desk,” suggests Nunn.

On behalf of news organizations, counsel should “[b]eat[] the drum of exhaustion all the time,” Strasburger urges. When someone asks a reporter to disclose their sources, “make it clear that they better spend a lot of time and treasure trying to get it elsewhere,” he maintains.

On the other hand, Strasburger agrees that counsel should steer news organization clients from, in the district court’s words, “mere ornamentation” in reporting that does not affect the substance. As the court emphasized, including “evocative (and click-inducing) details” that do not substantially improve a piece’s informational value, otherwise known as “gilding the lily,” risks opening the door for a Privacy Act claim and discovery into the potential leaker’s identity. “If you are using information as part of your story that you really don’t want to give up your source for, make sure it’s critical to the story that you’re telling,” Strasburger says.