More than two years ago, a US district court judge took the extraordinary step of holding the veteran investigative journalist Catherine Herridge in civil contempt, ordering her to pay a steep daily fine of $800 per day unless she reveals her sources for a series of stories she wrote in 2017 for Fox News.
Since then, the case has slowly moved through the appeals process, with Herridge dealt a series of defeats. On Tuesday, the US court of appeals for the District of Columbia circuit issued a one-sentence ruling denying Herridge’s plea to stay the February 2024 ruling holding her in contempt, an order made by district court judge Christopher R Cooper.
With time running out before the fine might go into effect, Herridge’s legal team is attempting one more legal maneuver to try to stave off the penalty. On Friday, Herridge filed a petition for a stay with the US supreme court. The petition was filed by Paul D Clement, a prominent appellate attorney who has also been retained by Disney to protest the Federal Communications Commission’s investigation of the ABC broadcast The View.
John Roberts, the supreme court chief justice, responded to Herridge’s petition by issuing a stay of the appeals court’s rulings to give the other party in the case, Chinese American scientist Yanping Chen, until 1 July to file a response.
“We are pleased with the supreme court’s decision to temporarily stay the deeply troubling contempt order,” Fox News said in a statement on Friday. “Fox News stands firmly behind the first amendment and the principle that reporters must be able to do their jobs without the threat of crippling fines or forced exposure of their sources.”
Chen’s attorney, Andy Phillips, expressed confidence in his client’s case. “Both the district and circuit courts have now ruled five times over that Ms Herridge has no privilege to continue to shield the identity of a federal official who broke the law and abused his or her position to cause harm to an American citizen by leaking protected materials,” he said in a statement. “We are confident that the supreme court will reach the same result.”
Press advocates have long been extremely worried about the convoluted case, which stems from a privacy act lawsuit that was filed by Chen to uncover who might have provided information to Herridge about a US government investigation of her background and an educational program she operated in Virginia. Herridge was not named in the lawsuit, but Chen’s lawyers have argued that their client can only get justice if the journalist is compelled to reveal how she obtained information about the government’s investigation of Chen.
Herridge, who worked at CBS News after leaving Fox, has refused to reveal her sources, believing it to be an abdication of her responsibility as a national security journalist – a position that press freedom groups have backed. Because there is no federal shield law protecting journalists from having to reveal their sources, the case shows the vulnerable position facing reporters who cover sensitive stories with national implications.
It’s not clear yet whether Herridge would personally be on the hook for the $800 daily fee, or whether her employer at the time, Fox News, could front it.
Seth Stern, chief of advocacy for the Freedom of the Press Foundation, expressed optimism that the supreme court would take Herridge’s petition seriously.
“The supreme court should use this opportunity to make clear that plaintiffs and prosecutors cannot commandeer the fourth estate to help them build their cases,” he told the Guardian on Friday. “Reporter-source confidentiality is the lifeblood of investigative journalism. Whistleblowers in a position to expose abuses won’t trust journalists to protect them, and won’t come forward, if they believe reporters will be threatened with financial ruin for not outing them in court.”
There are few past precedents for Herridge’s situation.
In 2005, then New York Times reporter Judith Miller spent 85 days in jail after refusing to reveal a confidential source. The following year, a coalition of news organizations paid $750,000 to settle a lawsuit over reporting on an investigation of nuclear scientist Wen Ho Lee, a resolution that came after five journalists were held in contempt and ordered to pay a daily fee of $500 until they revealed their sources.
