Not long ago, former Fox News investigative reporter Catherine Herridge began a painful daily ritual.
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Herridge → begin → ritual
With her oldest son for support, she walked to the mailbox at the end of her street and dropped an envelope into the mail.
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she → walk → mail
It contained a check for a daily fine of $800 that she was ordered to pay to coerce her into revealing her confidential sources in a national security story that aired on Fox News in 2017.
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that → contain → 2017
The money came from the college funds of her two children.
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money → come → children
As Herridge drained the savings of her military family, an alleged former colonel in the Chinese People's Liberation Army (PLA) was demanding that a court increase the daily fine to $5,000.
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court → drain → 5,000
A court later rescinded the fines, but they will be reimposed unless the Supreme Court takes Herridge’s case and reverses the lower courts.
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Court → rescind → courts
Yanping Chen led a school called the University of Management and Technology (UMT) in Northern Virginia, which catered to U.S. service members.
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which → lead → members
According to investigators and experts, Chen’s past in the Chinese military suggested that UMT posed a national security danger, including by potentially gathering information on military personnel participating in its programs.
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UMT → accord → programs
The Department of Justice declined to prosecute Chen.
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Department → decline → Chen
Nevertheless, after Herridge's investigative report, the government terminated its contracts with UMT because it considered the school a national security risk.
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school → terminate → UMT
In her investigation, Herridge published details that directly contradicted Chen, who denied being a colonel in the PLA.
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who → publish → PLA
Herridge showed photos in her report of Chen in her PLA uniform, and a whistleblower said on camera that UMT collected information on the military training of its students and it was all remotely accessible from China on UMT’s computers.
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it → show → computers
All of that would seem to be the makings of a Pulitzer, not a court sanction.
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All → seem → Pulitzer
It is not uncommon for journalists to be sued by aggrieved subjects of their stories for defamation or other civil claims.
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journalists → sue → defamation
Those cases are routinely rejected given the protections for the press under First Amendment cases like New York Times v. Sullivan, requiring a higher burden of proof from public figures suing the media.
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cases → reject → media
However, Chen did not sue for defamation.
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Chen → sue → defamation
She did not even name Herridge as a party.
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She → name → party
After all, Herridge is not being accused of writing anything false.
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Herridge → accuse → anything
Instead, Chen latched onto a clever tactic.
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Chen → latch → tactic
The alleged PLA colonel sued under a law that does not exist in China: the Privacy Act.
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that → sue → China
The Privacy Act regulates the government’s collection, storage, and use of private information, and includes a private right of action for citizens to sue for abuses or violations.
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citizens → regulate → abuses
She accused government officials of violating her privacy by serving as confidential sources to Herridge.
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She → accuse → Herridge
Her counsel then subpoenaed Herridge and demanded that she reveal her sources.
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she → subpoena → sources
She refused.
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She → refuse → ?
Much of what Chen references in her filing was available in the public domain.
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Chen → reference → domain
For example, Stephen Rhoads, a whistleblower and former UMT employee, was an FBI informant in the case and said publicly that Chen had admitted to him that she had been a PLA colonel and told him to lie about that fact when he was called to testify before a federal grand jury.
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he → say → jury
Any viable claim is primarily based on the photos.
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claim → base → photos
However, given all the other information in the public domain, it would have been difficult to argue that the photos caused Chen substantial harm.
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photos → give → harm
Her association and alleged hidden former rank as a PLA colonel led the government to take action against her and UMT.
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association → allege → her
However, Herridge had to litigate her claims of journalistic privilege in Washington, D.C.
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Herridge → have → Washington
Despite being the single most important jurisdiction for investigative reporting, the federal courts in D.C. have long followed a more permissive approach to forcing the disclosure of confidential sources.
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courts → follow → sources
Not only did Herridge find herself in a less-than-optimal circuit, but her supporters also raised concerns about the assigned judge.
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supporters → find → judge
U.S. District Judge Christopher Cooper, an Obama appointee, is the husband of respected attorney Amy Jeffress, who has been referenced in past Herridge stories and represents clients who have been subjects of her investigative reporting.
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who → reference → reporting
In 2023, Judge Cooper ordered Herridge to identify her confidential sources.
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Cooper → order → sources
She refused.
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She → refuse → ?
Cooper then held her in contempt and imposed a crippling $800-a-day fine.
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her → hold → fine
The D.C. Circuit later upheld his order.
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Circuit → uphold → 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).
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he → ask → relief
She is now back on a final appeal, hoping four justices will let her present her case.
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her → hop → case
They should grant this petition and address the morass left by the ill-considered 1972 precedent in Branzburg v. Hayes.
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They → grant → Hayes
…and 21 more, not listed.
The Aporia
