D.C. Circuit Rejects Journalist's Privilege Claim in Privacy Act Case Involving Fox News
From Chen v. FBI, decided Tuesday by D.C. Circuit Judge Gregory Katsas, joined by Judges Michelle Childs and Harry Edwards:
Yanping Chen alleges that federal officials violated the Privacy Act by disclosing records about her compiled as part of an FBI investigation. The records were published by Fox News. In discovery, Chen sought to compel Catherine Herridge—one of the journalists involved in publishing the records—to identify who had leaked them. Herridge invoked a First Amendment reporter's privilege to avoid being compelled to testify….
{We recite the facts as alleged in the complaint. Yanping Chen was born in China. In 1987, she moved to the United States to study at George Washington University, from which she eventually obtained graduate degrees. Chen became a lawful permanent resident in 1993 and a citizen in 2001.
In 1998, Chen founded the University of Management and Technology (UMT), an educational institution headquartered in Arlington, Virginia. Until January 2018, UMT participated in the Department of Defense's "Tuition Assistance Program," which pays a portion of tuition expenses for military students.
In 2010, the Federal Bureau of Investigation began investigating Chen for statements made on her immigration forms. [Details omitted. -EV] In 2016, the U.S. Attorney's Office for the Eastern District of Virginia decided not to file charges against Chen.
In 2017, Fox News aired a report alleging that Chen had concealed her prior work for the Chinese military. The network later published [various FBI documents]…. The print versions of these reports were authored by Catherine Herridge.
In 2018, DoD terminated UMT's participation in the Tuition Assistance Program. That decision, along with a broader hit to UMT's reputation, caused its enrollment and revenue to fall sharply. These losses impacted Chen's income and the value of her personal investment in UMT.} …
In Zerilli v. Smith (D.C. Cir. 1981), this Court recognized a "qualified reporter's privilege" based on the First Amendment. Where it applies, the privilege allows reporters to resist civil discovery into the identity of their confidential sources. We identified two considerations as being "of central importance" in determining whether the privilege applies—the litigant's "need for the information" and her efforts "to obtain the information from alternative sources" [the latter being called the "exhaustion requirement"-EV] We further noted that the "equities weigh somewhat more heavily in favor of disclosure" if, as in libel cases, the journalist is a party and successful assertion of the privilege "will effectively shield him from liability." …
In Lee v. Department of Justice (D.C. Cir. 2005), this Court held that a litigant may overcome the privilege by showing centrality and exhaustion—even in a case where the reporter is not a party. Like this case, Lee involved an appeal by non-party journalists held in contempt for refusing to identify their confidential sources in Privacy Act litigation.
Applying Zerilli's "two guidelines [for] determining when a court can compel a non-party journalist to testify about a confidential source," we held that the district court had not abused its discretion in requiring the reporters to testify. First, the plaintiff had shown that the information he sought went to the "heart" of the case, given the difficulty in proving intent or willfulness without knowing the identity of the leakers. Second, by deposing numerous witnesses before seeking to compel the reporters' testimony, the plaintiff had met his burden to exhaust reasonable alternative sources of information.
For the Lee Court, that was the end of the matter. We expressly declined to engage with Zerilli's distinction between journalists who are parties to a lawsuit and those who are not, since all the journalists in the case before the court were non-parties. And in response to an objection that we were leaving journalists without enough protection, we explained that a litigant's power to subpoena a journalist remains constrained by the requirements of centrality and exhaustion, which are not perfunctory, and by "the usual requirements of relevance, need, and limited burdens on the subpoenaed person" embodied in federal procedural and evidentiary rules….
On appeal, Herridge does not contest the district court's determination that Lee's centrality and exhaustion requirements for overcoming the privilege were satisfied. Herridge nonetheless asks us to rule in her favor because … Chen's Privacy Act claim is frivolous or meritless ….
We reject Herridge's contention that the Privacy Act claim here is frivolous. Herridge presses two main points: "most" of Chen's alleged damages were caused by DoD's independent decision to cut off funds to UMT, and "almost all" of Herridge's reporting came from sources other than Privacy Act information. But "most" is not all, and Chen does seek damages not flowing from a loss of business after DoD severed its ties with UMT.
Likewise, even if Herridge collected "almost all" of her information from material that was already in the public domain, Chen plausibly alleges that some of it had to have come from Privacy Act violations—such as the disclosure of photographs seized from Chen's home during the FBI search. And so long as Chen establishes that some Privacy Act violation harmed her, she may recover actual or statutory damages if it was willful….
Herridge more broadly urges that Chen's claim is simply not that important. In Herridge's view, regardless of centrality and exhaustion, the reporter's privilege should prevail if a court determines that the social importance of the news story outweighs the plaintiff's personal interest in vindicating her claim. Here, for example, Herridge argues that "the public's interest in protecting journalists' ability to report without reservation on sensitive issues of national security" should outweigh Chen's merely private interest in recovering perhaps as little as $1,000 in statutory damages.
Herridge's proposed balancing test echoes the view advanced by the judges dissenting from denial of rehearing en banc in Lee. As they were in dissent, we are left simply to apply the Lee panel opinion…. Lee held that a district court permissibly found a reporter's privilege overcome based on findings of centrality and exhaustion in a Privacy Act case, without any broader balancing of private and public interests. And that suffices to foreclose Herridge's privilege claim here….
Finally, Herridge urges us to recognize, as a matter of federal common law, a reporter's privilege broad enough to permit the case-by-case interest balancing urged by the Lee dissentals. We decline this invitation to end-run our precedent.
Rule 501 of the Federal Rules of Evidence authorizes federal courts to recognize new privileges "in the light of reason and experience." But Herridge has provided little cause to think that "reason and experience" support the privilege that she propounds. As to reason, the First Amendment analysis in cases like Zerilli and Lee thoroughly lays out the competing considerations of encouraging newsgathering while also respecting the elemental principle that "the public has a right to every man's evidence."
As to experience, Herridge contends that virtually every state has recognized some form of a reporter's privilege. She attached to her opening brief a chart summarizing the relevant law in every state. But as this chart demonstrates, the privilege varies widely in its scope from state to state, both in the abstract and on the question whether case-by-case interest balancing is appropriate. In short, if the First Amendment itself does not entitle Herridge to disobey discovery obligations imposed on every other citizen in the circumstances of this case, we see little reason to create that entitlement as a matter of judge-made common law.
Andrew Phillips represents Chen.