Journalist's College Savings Drain: $800 Daily Fine for Protecting Sources in Espionage Case

Catherine Herridge once performed a grim daily routine. She walked to the mailbox at the end of her street with her oldest son by her side. She dropped an envelope into the slot. Inside sat a check for $800. That sum represented a daily fine ordered to force her to reveal confidential sources for a national security story that aired on Fox News in 2017. The funds came from the college savings of her two children.

While Herridge bled out her military family’s savings, an alleged former colonel in the Chinese People's Liberation Army (PLA) pushed a court to raise the daily penalty to $5,000. A judge later rescinded those fines. They will return unless the Supreme Court takes up Herridge’s case and reverses the lower courts.

Yanping Chen led the University of Management and Technology (UMT) in Northern Virginia. The school catered to U.S. service members. Investigators and experts argued that Chen’s background in the Chinese military made UMT a national security danger. They suspected the institution gathered intelligence on military personnel enrolled in its programs. The Department of Justice declined to prosecute Chen. Still, the government terminated its contracts with UMT after Herridge’s investigative report, citing the school as a national security risk.

$800-A-DAY PENALTY THREATENS TO BLEED REPORTER DRY AS EXPLOSIVE LEGAL FIGHT HEADS TO SUPREME COURT

Herridge’s investigation published details that directly contradicted Chen, who denied being a PLA colonel. The report featured photos of Chen in her PLA uniform. A whistleblower appeared on camera to state that UMT collected information on the military training of its students. That data was remotely accessible from China on UMT’s computers.

These facts should have made a Pulitzer. Instead, they created a court sanction. Journalists frequently face defamation suits from aggrieved subjects. Courts routinely reject those claims. First Amendment protections, established in cases like New York Times v. Sullivan, impose a higher burden of proof on public figures suing the media.

Chen did not sue for defamation. She did not even name Herridge as a party. Herridge is not accused of writing falsehoods. Chen latched onto a clever tactic. The alleged PLA colonel sued under a law that does not exist in China: the Privacy Act. This statute regulates how the government collects, stores, and uses private information. It grants citizens a private right of action to sue for abuses or violations. Chen accused government officials of violating her privacy by serving as confidential sources to Herridge. Her counsel then subpoenaed Herridge, demanding she reveal her sources. She refused.

The Privacy Act complaint was anemic and dubious from the start. Much of what Chen referenced in her filing existed in the public domain. Stephen Rhoads, a whistleblower and former UMT employee, had been an FBI informant in the case. He publicly stated that Chen admitted to him she had been a PLA colonel. She told him to lie about that fact when he testified before a federal grand jury.

Any viable claim relied primarily on the photos. Given the other information available to the public, it would have been difficult to argue those images caused Chen substantial harm. Her association and alleged hidden rank as a PLA colonel led the government to act against her and UMT.

Herridge had to litigate her claims of journalistic privilege in Washington, D.C. Despite being the single most important jurisdiction for investigative reporting, the federal courts in D.C.

The D.C. Circuit Court has historically favored a permissive stance when it comes to compelling reporters to reveal confidential sources. For Dana Herridge, that legal environment proved less than ideal. Her backers also voiced unease regarding the judge presiding over the case. U.S. District Judge Christopher Cooper, appointed by President Obama, is married to Amy Jeffress, a respected attorney who has appeared in previous Herridge stories and represents clients who were subjects of her investigative work.

In 2023, Judge Cooper ordered Herridge to identify her confidential sources. She refused. Cooper then held her in contempt and imposed a crippling $800-a-day fine. The D.C. Circuit later upheld his order. When Herridge asked the Supreme Court to intervene and stay the D.C. Circuit’s mandate, it also declined (though Justice Brett Kavanaugh indicated that he would have granted relief).

Now she is back on a final appeal, hoping four justices will let her present her case. They should grant this petition and address the morass left by the ill-considered 1972 precedent in Branzburg v. Hayes. One appellate judge summed up the view of many by saying that the standard in the case is "about as clear as mud." (United States v. Sterling, 724 F.3d 482, 523 (4th Cir. 2013) (Gregory, J., dissenting)). The result has been decades of dangerous ambiguity in an area that needs clear rules.

While circuits such as the First Circuit apply a balancing test that allows for greater contextual resolutions, the D.C. Circuit applies a standard that is easy to satisfy. Chen needed only to show that (1) the source is central to her case and (2) she has exhausted other avenues of discovery. That test could have allowed Nixon officials to force Watergate reporters Bob Woodward and Carl Bernstein to disclose the identity of Deep Throat as a Privacy Act violation.

Herridge's counsel has argued that the Court should adopt the more protective standards applied outside of Washington or create a new standard. One suggested approach is to allow a judge to consider whether a case is likely to survive a motion for summary judgment before ordering such disclosure. In this case, Chen is unlikely to secure any relief based solely on the photos, given the rest of the publicly available information about her past in the Chinese military.

Ironically, Chen is seeking to use rights that are denied in China in a way that would seriously undermine the protections of a free press in this country. However, if she thought ruinous fines would force disclosure of such sources in a national security case, she tangled with the wrong reporter.

Herridge has long been a champion of journalistic privilege, even when fighting news organizations. Years ago, I disclosed in a column how CBS News seized Herridge's files containing confidential source information after she left the network. Herridge refused to yield and forced the network to surrender the files.

Herridge is not asking for immunity. She is seeking to establish a fair standard, so a court can balance interests in cases such as hers. Chen was able to repurpose the Privacy Act as a way to circumvent press protections in areas like defamation. It would be particularly concerning if an alleged former colonel in the PLA whom DOD found to be a national security threat could claim privacy violations to force the disclosure of national security sources.

There is ample ground here to strike a reasonable balance, but the Court must first accept review in Herridge v. Chen.

Jonathan Turley previously worked for CBS News and currently works at Fox News as a legal analyst. His views do not necessarily reflect those of those networks.