Federal appellate court decision on journalist subpoena raises concerns

Several weeks ago, the U.S. Court of Appeals for the District of Columbia Circuit issued a three-sentence decision on a procedural issue that may have a significant impact on the rights of journalists subpoenaed for source information. The decision requires journalists who receive a court order to violate that order and be held in contempt before they are permitted to appeal. Though other courts have agreed with this in the past, requiring journalists to be held in contempt and, as a result, risk jail time in order to appeal an order requiring them to divulge source information has a significant chilling effect.

This decision comes out of former Fox News correspondent Catherine Herridge’s challenge to a subpoena she received in a Privacy Act case that Yanping Chen brought against the FBI for allegedly leaking information to Herridge (now at CBS News) about a counterintelligence investigation related to Chen and a school she founded that had been closed without charges.

Subpoenas of journalists for source information are rare. Some courts have held that the First Amendment creates a qualified privilege for members of the press and some also recognize a newsgathering privilege that comes from federal common law. So, in the rare cases where journalists are subpoenaed for information about their sources, courts often quash those subpoenas on the basis of one or both of those privileges. But sometimes, courts decide those privileges are outweighed by the need for the source information in a given case. That’s what happened with Chen’s subpoena to Herridge.

In August, a judge in the federal district court in D.C. ruled that the information requested in Chen’s subpoena was essential to her claim and that she had sought, without avail, the information from non-media sources first. So, the judge held that the First Amendment privilege was outweighed (federal courts in D.C. do not recognize a federal common law privilege for newsgathering), rejecting Herridge’s efforts to quash the subpoena.

When Herridge attempted to appeal that order, the district court refused to allow her to do so, saying that in order to challenge the order on appeal, she must violate it and be held in contempt. Herridge appealed the order, but the D.C. Circuit agreed with the district court.

To explain the significance of this D.C. Circuit decision, a very quick primer on appealability of federal district court rulings is in order. Under most circumstances, only final decisions by district courts are eligible for appeal. This means that provisional decisions made by district courts in the course of a proceeding (that is, after the suit is filed but before the court has issued its judgment), are generally not appealable. These include decisions made in the course of discovery. But federal law recognizes an exception to this rule when a decision is conclusive, important but separate from the merits of the underlying cause of action, and effectively impossible to remedy through an appeal of a final judgment.

Herridge argued that the trial court’s decision requiring her to turn over source information satisfied that criteria. And the trial court largely agreed, saying, “At first glance, it appears that Herridge checks all three boxes.” But it refused to allow Herridge to appeal the order because she had not been held in contempt of court for defying the order, though she stated her intent to do so.

Under ordinary circumstances, requiring a contempt citation prior to allowing the appeal of a discovery order might make sense. But Herridge argued that where First Amendment interests are at stake, the result should be different. This is because courts recognize that First Amendment harms can occur even before someone has actually been sanctioned for their speech. They can be deterred or chilled from speaking because of a regulation or enforcement action, and that in itself is an actionable injury. Herridge argued that requiring journalists to be held in contempt before they can challenge court orders requiring them to hand over source information is incongruent with the way that courts think about First Amendment harms.

We agree that journalists should not be forced to subject themselves to a contempt citation in order to challenge a court order to turn over source information. We’ll be watching this case as it unfolds, and we’ll be sure to keep you posted.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.