In the delicate ecosystem of American democracy, the reporter’s privilege—the legal right of journalists to protect their confidential sources—has long been viewed as a bedrock of investigative accountability. Yet, a persistent and increasingly dangerous trend has emerged in the federal court system: the use of civil Privacy Act lawsuits as a "backdoor" to force journalists to burn their sources.
When the government is accused of leaking private information, plaintiffs are increasingly targeting the journalists who broke the stories, effectively transforming the press into a discovery tool for private litigants. This practice, while legally nuanced, places an extraordinary burden on reporters, who find themselves caught in the crossfire of high-stakes litigation, facing mounting daily fines and the erosion of the very protections intended to keep a free press alive.
The Evolution of a Legal Weapon: From Hatfill to Herridge
The tension between individual privacy and press freedom is not a new phenomenon, but the tactics used to resolve it have become more aggressive. Two decades ago, the case of Toni Locy, a former USA Today reporter, set a chilling precedent.
In 2003, Locy reported on the FBI’s investigation into the 2001 anthrax attacks. Her coverage centered on Steven Hatfill, a former Army scientist who was the primary focus of the FBI’s initial probe. Hatfill, claiming his reputation had been irreparably harmed by government leaks, filed a civil lawsuit under the Privacy Act. He did not sue Locy; he sued the federal government. However, as part of his discovery process, he subpoenaed Locy, demanding she reveal the identities of the officials who provided her with information.
By 2008, the situation had escalated significantly. Now a journalism professor at West Virginia University, Locy was held in contempt of court for refusing to disclose her sources. The court imposed a punitive fine structure: five hundred dollars a day for the first week, one thousand for the second, and five thousand for the third. In a move that highlighted the severity of the court’s stance, the judge explicitly barred others from subsidizing the fines, effectively forbidding her students from even holding a bake sale to assist their professor. The matter only concluded when the government and Hatfill reached a settlement, rendering the contempt issue moot—a resolution that left the underlying legal questions regarding reporter’s privilege unanswered.
The Modern Echo: The Catherine Herridge Case
The legal strategy deployed against Locy has seen a modern iteration in the case of veteran journalist Catherine Herridge. In 2017, while reporting for Fox News, Herridge published an investigative piece on Yanping Chen, a Chinese American scientist who had been the subject of an FBI counterintelligence inquiry. Chen was never charged with a crime, yet her career and reputation were impacted by the investigation.
In 2018, Chen filed a Privacy Act lawsuit against the government. In 2024, a Washington, D.C. district court ordered the now-independent journalist to reveal her sources, imposing a daily fine of eight hundred dollars for non-compliance. Unlike Locy, Herridge has faced a more prolonged and uphill battle through the appellate courts. In September 2025, the appellate court ruled against her, and in June 2026, after the court declined a rehearing, she was ordered to continue paying fines while preparing an appeal to the Supreme Court. On July 2, 2026, the Supreme Court denied her emergency request to stay the fines, though Justice Brett Kavanaugh—who sat on the panel during the Locy case—signaled his dissent, supporting the stay.
The Zerilli Test: A Flawed Barrier
At the heart of these conflicts lies the question of "reporter’s privilege." While most states and the District of Columbia have enacted shield laws to protect journalists, federal protections remain elusive. Efforts to pass a federal shield law have repeatedly stalled in Congress.
Consequently, federal courts rely on case law, primarily the 1981 ruling in Zerilli v. Smith. This case, involving an investigation into organized crime and a leak of government-recorded phone logs, established a two-pronged test for compelling a journalist to reveal a source:
- The information requested must go to "the heart of the matter" of the litigation.
- The plaintiff must have exhausted all other reasonable means to obtain the information.
Legal experts argue that this framework is inherently stacked against the press. Gabe Rottman, vice president of policy at the Reporters Committee for Freedom of the Press, notes that if a court strictly adheres to these two factors, a judge can almost always find a justification to pierce the privilege. "There are other things that the court could conceivably do to strengthen the privilege," Rottman argues. "They could test whether the person’s claim would even survive without the information. If there was an independent source for the potential harm to the plaintiff, the court could say, ‘Well, you’re likely to lose anyway, so we’re not going to pierce the privilege.’"
The Costs of Silence: Corporate vs. Independent Media
The financial and professional toll on journalists is immense. When journalists are held in contempt, they are forced to choose between their professional ethics—protecting their sources—and severe personal financial ruin.
This dilemma is particularly acute for independent journalists like Herridge. Corporate media organizations, by contrast, possess deeper pockets but have shown a tendency to "capitulate" rather than litigate. A notable example is the case of Wen Ho Lee, a former nuclear weapons scientist. When he sued the government, several major news organizations—including the New York Times, the Los Angeles Times, the Washington Post, and ABC—were subpoenaed. Rather than risking a protracted legal fight or the prospect of their reporters facing jail time or massive fines, these outlets collectively agreed to pay Lee $750,000 as part of a settlement.
Seth Stern, chief of advocacy at the Freedom of the Press Foundation, views this trend with alarm. "When you look at corporate media, you’ve got to wonder if they value the First Amendment at all, given how they’ve capitulated to attacks on the First Amendment lately," Stern says. "Certainly, corporate outlets can afford the fines. But they’ve chosen not to fight."
Official Responses and the Path Forward
The attorneys representing plaintiffs in these cases argue that their clients are simply seeking justice for government overreach. Andrew C. Phillips, representing Dr. Yanping Chen, stated following the Supreme Court’s decision, "We’re pleased with the Supreme Court’s decision and hope that it will help bring a close to this matter. It follows complete vindication for Dr. Chen in the district and circuit courts."
For the journalists and press freedom advocates, however, the "vindication" of the plaintiff comes at the expense of the public’s right to know. Toni Locy, reflecting on her own ordeal, remains frustrated that the appellate court did not rule on the merits of her case. "They didn’t think there was a need to decide anything," she recalls. "I wish they had. I think I wasn’t going to win on everything, but I think I was going to win on some stuff, and it might have helped Catherine."
Locy’s critique of the current legal climate is sharp: "They want the journalists to do their work for them, and federal judges are allowing these plaintiffs’ attorneys to go after journalists. In Privacy Act civil lawsuits, it’s a cheap, dangerous way for civil litigators who are looking for a payday."
Implications for the Future of Investigative Journalism
The implications of these cases are profound. When journalists are treated as investigative arms of private litigants, the chilling effect on whistleblowers and government sources is inevitable. If a source cannot be guaranteed anonymity, they will stop coming forward. If they stop coming forward, the public loses its primary mechanism for discovering government corruption, misconduct, and incompetence.
As the Herridge case continues to wind through the highest court in the land, the question remains: will the judiciary recognize that the First Amendment requires a robust, absolute protection for confidential sources, or will it continue to allow the Privacy Act to serve as a bludgeon against the press?
Rottman’s assessment serves as a sobering reminder: "Cases like these may be relatively rare, but when they do occur, they’re really consequential for press freedom." For now, the shield remains cracked, and the cost of maintaining it is being paid by the reporters who refuse to break their promise to the public.
