Refusal to reveal confidential sources: former Fox reporter Catherine Herridge takes the $800-a-day fine case to the Supreme Court

Former Fox News investigative reporter Catherine Herridge has asked the US Supreme Court to hear an appeal centred on her refusal to reveal her confidential sources. The Supreme Court is considering whether to hear the appeal.

Not long ago, Herridge began a daily ritual. With her oldest son for support, she walked to the mailbox at the end of her street and dropped in an envelope containing 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. The money came from the college funds of her two children.

Yanping Chen, an alleged former colonel in China's People's Liberation Army (PLA), was demanding that a court increase the daily fine to $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 A court later rescinded the fines, but they will be reimposed unless the Supreme Court takes Herridge's case and reverses the lower courts.

Chen led a school called the University of Management and Technology (UMT) in Northern Virginia, which catered to US service 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. The Department of Justice declined to prosecute Chen.

Nevertheless, after Herridge's investigative report, the government terminated its contracts with UMT because it considered the school a national security risk.

In her investigation, Herridge published details that directly contradicted Chen, who denied being a colonel in the 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 that it was all remotely accessible from China on UMT's computers.

Chen did not sue for defamation and did not even name Herridge as a party. She sued under the Privacy Act, which regulates the government's collection, storage and use of private information and includes a right for citizens to sue over abuses or violations. She accused government officials of violating her privacy by serving as confidential sources to Herridge. Her counsel then subpoenaed Herridge and demanded that she reveal her sources; she refused.

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.

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

Herridge is now back on a final appeal, hoping four Supreme Court justices will let her present her case. Legal analyst Jonathan Turley has argued that the Court should grant the petition and address the ambiguity left by the 1972 precedent in Branzburg v. Hayes.

Under the standard the DC Circuit applies, Chen needed only to show that (1) the source is central to her case and (2) she has exhausted other avenues of discovery. Herridge's counsel has argued that the Court should adopt the more protective standards applied outside 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.