Learn how the court balanced the First Amendment's qualified reporter's privilege against the litigant's need for information, applying the Lee v. DOJ precedent.

Read more: Contempt Affirmed: Reporter's Confidential Sources - S3E1

On September 30, 2025, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a pivotal judgment in Yanping Chen v. Federal Bureau of Investigation, et al. (No. 24-5050). This ruling upheld a lower court’s decision to hold journalist Catherine Herridge in civil contempt for refusing to disclose her confidential sources. The decision hinges on the critical legal task of balancing the limitations of the First Amendment's qualified reporter's privilege against a litigant's demonstrated need for specific, otherwise unobtainable information.

The Core Conflict: Press Freedom vs. Litigant Need

The legal battle began in December 2018 when Yanping Chen initiated a Privacy Act lawsuit against the FBI and other federal agencies. Chen alleged that federal officials violated the Privacy Act by revealing records gathered during an FBI investigation related to her alleged prior work for the Chinese military. These unauthorized disclosures were published by Fox News in reports authored by journalist Catherine Herridge.

The published details included sensitive information, such as:

• Details from an FBI interview with Chen’s daughter.
• Personal photographs seized from Chen’s home during an FBI search.
• Information derived from immigration and naturalization papers.

Chen pursued the identity of the source of the leak during discovery, compelling Herridge to invoke the qualified reporter’s privilege recognized by the D.C. Circuit in the 1981 case, Zerilli v. Smith. This privilege permits journalists to resist civil discovery designed to uncover confidential sources.

Legal Precedent Limiting Reporter's Privilege

Circuit Judge Katsas authored the opinion, confirming that the court was bound by the controlling precedent set in Lee v. Department of Justice (2005). This precedent dictates that a litigant can successfully overcome the reporter's privilege by proving two key considerations:

1. Centrality (Need for Information): The litigant must demonstrate a critical need for the information.
2. Exhaustion (Alternative Sources): The litigant must demonstrate that they have exhausted all viable alternative sources to obtain the information.

In this case, Chen successfully met these dual requirements. Chen proved exhaustion by executing extensive discovery, which included 18 depositions of government employees, 22 declarations, and numerous document requests and interrogatories, yet still failing to identify the leaker. The information—the identity of the source—was deemed central because establishing "intent or willfulness" under the complex requirements of the Privacy Act is nearly impossible without knowing who leaked the documents.

Journalist's Arguments Rejected

Despite Herridge conceding that the district court's determination on centrality and exhaustion was met under the Lee precedent, she presented two primary arguments against forced disclosure of her confidential sources:

1. The Claim is Frivolous: Herridge contended that the court should uphold the reporter's privilege because Chen’s Privacy Act claim was meritless or frivolous. The court rejected this argument, noting that Chen had plausibly alleged harm from the disclosure (such as the private photographs) and that the claim was not rendered frivolous, even if the ultimate recovery might be small.
2. Broader Interest Balancing: Herridge urged the court to adopt a wider balancing test where the social importance of her news story (relating to national security reporting) should outweigh the plaintiff’s private interest in vindicating her claim. The D.C. Circuit acknowledged that this perspective aligned with dissenting views in the Lee case, but maintained that it was strictly bound to apply the Lee panel opinion. This precedent overcomes the reporter's privilege purely based on findings of exhaustion and centrality, thereby foreclosing the broader public/private interest balancing argument.

Ultimately, the D.C. Circuit refused Herridge's invitation to recognize a new, broader newsgathering privilege under federal common law. The court reasoned that if the First Amendment itself does not shield the journalist from discovery obligations in these precise circumstances, there is little basis for creating such an entitlement through judge-made common law.

Consequently, the D.C. Circuit affirmed the order finding Catherine Herridge in civil contempt. The order carries a stayed fine of $800 per day until she complies and reveals the confidential sources.

---

Source

• 24-5050 - U.S. Court of Appeals for the D.C. Circuit.pdf | media.cadc.uscourts.gov