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In 2003, Toni Locy, a former reporter for USA Today, published a series of articles about the FBI’s investigation into the 2001 anthrax attacks that left five people dead and seventeen infected. Along the way, she reported on Steven Hatfill, a former Army scientist who was the initial focus of the FBI’s probe. In 2003, Hatfill filed a civil lawsuit under the Privacy Act, a federal law that restricts government agencies from sharing private information about individuals without their consent. As part of his legal efforts, in 2004 he pressed Locy and other journalists to testify and reveal their sources. 

In February of 2008, a federal judge held Locy in contempt of court for refusing to do so. Notably, Hatfill had sued not Locy but the federal government, arguing that his reputation had been ruined due to law enforcement officials leaking to the media and linking him to the attacks. By then, Locy was working as a journalism professor at West Virginia University. She was subject to a fine of five hundred dollars for seven days, one thousand dollars for the next seven, and five thousand dollars for the seven days after that. The judge also barred anyone from helping her pay this fine—her students couldn’t even hold a bake sale to fundraise for her.

Cases like Locy’s—those brought by individuals against the government, resulting in journalists being subpoenaed and held in contempt—are unusual. But they haven’t gone away. 

In 2017, Catherine Herridge, then a reporter for Fox News, published a story about Yanping Chen, a Chinese American scientist who was the subject of an FBI counterintelligence investigation. In 2018, Chen, who was never charged, filed a civil lawsuit against the government under the Privacy Act and subpoenaed Herridge to reveal her sources. In 2024, a Washington, DC, district court ordered Herridge, by then an independent journalist, to pay a fine of eight hundred dollars for each day she did not reveal her sources.

As with Locy’s case, Herridge is not a named party in the lawsuit. Her reporting is not in dispute, and she does not currently face the threat of jail time. But the DC court is asking her to reveal her sources in litigation brought against the government for violating the Privacy Act. “In these Privacy Act cases, the plaintiff needs to establish that the government leaker or alleged leaker acted willfully, and so that’s why you can see plaintiffs in these cases, which are ordinary civil cases, going after journalists,” Gabe Rottman, the vice president of policy at the Reporters Committee for Freedom of the Press, said. Complicating Herridge’s case is the fact that documents about the FBI’s investigation of Chen were filed under seal, and all of the appellate arguments about those documents were held in closed court. The Freedom of the Press Foundation has filed a motion to unseal the documents and hearing transcript. (Chen did not respond to a request for comment.) 

Core to the litigation is the question of whether Herridge should be protected from being compelled to testify through reporter’s privilege. While most states, as well as the District of Columbia, have enacted shield laws protecting a reporter’s right not to reveal their confidential sources, recent attempts to create a federal version have failed. Much of the current case law dates back to Zerilli v. Smith, a 1981 case concerning an investigation into organized crime where the government, without a warrant, had planted a listening device. The resulting logs were sealed, but some of their contents were reported on by the Detroit News. In that case, a DC district court judge and court of appeals found that the reporter did not have to reveal their sources. The DC Circuit Court of Appeals judge also ruled that a plaintiff must prove that the information they are requesting goes to “the heart of the matter” and that they have exhausted all other reasonable means to get it before a court can compel a reporter to reveal a source—a test that became crucial in subsequent decisions. 

Rottman pointed out that if a court considers only these two factors, a judge can almost always find reason to rule against a reporter’s right to protect their sources in privacy cases. “There’s other things that the court could conceivably do to strengthen the privilege,” he told me. “They can test whether the person’s claim would even survive without the information. So, in other words, if there was an independent source for the potential harm to the plaintiff, the court could rightly look at that and say, ‘Well, you’re going to likely lose anyways, and so we’re not going to pierce the privilege.’”

In Herridge’s case, the DC district court judge held that Chen had cleared the bar put forth in the Zerilli test—getting to the heart of the matter and exhausting all other reasonable means to get the information—and ordered Herridge to reveal her sources, holding her in contempt when she refused to do so. In his 2024 decision, Christopher R. Cooper, a judge in the US District Court for the District of Columbia, stayed the fine until an appeals court ruled on her case; in September of 2025 the appeals court ruled against Herridge. 

In June of 2026, after the appeals court declined to rehear the case, it refused to stay the fine Herridge has been ordered to pay while she prepares her next appeal—this time to the Supreme Court. On July 2, the Supreme Court denied her emergency request to stay the fines (while it considered the request, the fines were stayed); notably, Justice Brett Kavanaugh supported granting the application for a stay. These fines are expected to be enforced while she prepares to request that the Supreme Court take up her case. How much Herridge will be required to pay remains unclear. It also remains unclear whether the justices will agree to hear her case. “Protecting the confidentiality of journalistic sourcing and the integrity of the newsgathering process is fundamental to a free and functioning democracy,” Fox News said in a statement shared with CJR. “While we are deeply disappointed by the Court’s decision, our commitment to defending these critical First Amendment principles remains unwavering and we will be reviewing our options to further fight this injustice.” 

In Locy’s case, a three-judge panel of the US Court of Appeals for the DC Circuit—which included Kavanaugh—stayed the fines pending a decision by the court. But the appeals court never wound up making a decision, because Hatfill’s case was settled. This rendered Locy’s contempt issue irrelevant, effectively canceling her fine. Locy had hoped to push the appeals court to make a decision. “They didn’t think there was a need to decide anything,” Locy, who is now a professor of journalism and mass communications at Washington and Lee University, told me. “I wish they had. Because I think I wasn’t going to win on everything, but I think I was going to win on some stuff,” she said. “And it might have helped Catherine.”

Locy told me that, in Privacy Act cases that seek to force journalists to reveal their sources, plaintiffs’ lawyers often appear to be using them as a shortcut: “They want the journalists to do their work for them, and federal judges are allowing these plaintiffs’ attorneys to go after journalists, and in Privacy Act civil lawsuits, which is a cheap, dangerous way for civil litigators who are looking for a payday.”

Though the reporters subpoenaed in Privacy Act cases are not the ones being sued, news organizations have participated in settling these lawsuits alongside the government. In former nuclear weapons scientist Wen Ho Lee’s lawsuit against the government, five journalists from publications including the New York Times, the Los Angeles Times, the Washington Post, and ABC were subpoenaed and refused to reveal their sources. These organizations agreed to pay Lee seven hundred and fifty thousand dollars as part of a settlement that the government also participated in to end the contempt-of-court proceedings against their reporters. 

While independent reporters are particularly vulnerable in these cases, Seth Stern, the chief of advocacy at the Freedom of the Press Foundation, said this is a fight that corporate media organizations may not want to take on either. “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,” he said. “Certainly, you know corporate outlets can afford to pay eight hundred dollars a day. That’s not a question, but they could also afford to litigate with Donald Trump, and they chose not to.” 

Cases like Herridge’s may be relatively rare, Rottman said, “but when they do occur, they’re really consequential for press freedom.”

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