The High Cost of Silence: How Privacy Act Litigation is Weaponized Against Journalism

In the delicate ecosystem of American democracy, the relationship between the press and its confidential sources is the bedrock of accountability. Yet, a persistent and troubling legal trend is threatening to erode this foundation: the use of civil Privacy Act lawsuits as a mechanism to force journalists to disclose their sources. When private citizens sue the federal government for alleged leaks of personal information, they are increasingly turning their legal fire toward the reporters who published the stories, turning the press into a proxy for discovery.

This phenomenon, while statistically rare, poses an existential threat to investigative journalism. From the anthrax investigations of the early 2000s to the high-stakes surveillance cases of the 2020s, the message from the courts is becoming increasingly clear: the reporter’s privilege is fragile, and in the absence of a federal shield law, the cost of protecting a source can be devastatingly high.

A Legacy of Contempt: From Locy to Herridge

The tension between judicial power and press freedom is not new, but it has reached a critical juncture. Two landmark cases, separated by two decades, illustrate the evolution of this crisis.

In 2003, Toni Locy, then a reporter for USA Today, found herself at the center of a firestorm following her reporting on the FBI’s investigation into the 2001 anthrax attacks. As the FBI focused its scrutiny on Steven Hatfill, a former Army scientist, Hatfill filed a Privacy Act lawsuit against the government, alleging that officials had leaked his personal information to the press. By 2004, the legal dragnet had tightened around Locy, as Hatfill’s attorneys sought to compel her to reveal the sources behind her reporting.

The standoff culminated in February 2008, when a federal judge held Locy—by then a journalism professor—in contempt of court. The judge imposed a tiered fine system: $500 per day for the first week, $1,000 for the second, and $5,000 for every day thereafter. Most chillingly, the court barred others from assisting her, effectively preventing her students from organizing any financial relief. The ordeal only ended because the government settled with Hatfill, mooting the contempt order before Locy could force a definitive ruling on the reporter’s privilege.

Fast forward to 2017: Catherine Herridge, then with Fox News, reported on an FBI counterintelligence investigation into Yanping Chen, a Chinese American scientist. Like Hatfill, Chen was never charged with a crime. Like Hatfill, Chen filed a Privacy Act lawsuit against the government. And, like Locy, Herridge was subpoenaed to reveal her sources.

In 2024, a Washington, D.C., district court ordered Herridge to pay $800 per day until she complied. The case escalated to the Supreme Court in 2026, where the Court ultimately denied an emergency stay of the fines. The persistence of these cases suggests that despite the passage of time, the legal vulnerability of journalists remains unchanged.

Chronology of Legal Precedent

To understand why courts continue to pierce the reporter’s privilege, one must look to the 1981 case Zerilli v. Smith. This case, which centered on illegal government wiretapping and subsequent leaks to the Detroit News, established a restrictive test for when a court can force a journalist to testify.

According to the Zerilli standard, a plaintiff must prove two things:

1. That the requested information goes to the "heart of the matter."
2. That they have exhausted all other reasonable, non-journalistic means to obtain that information.

While these standards were intended to act as a shield, they have, in practice, become a sieve. Gabe Rottman, vice president of policy at the Reporters Committee for Freedom of the Press, argues that judges often interpret these criteria far too broadly. "If a court considers only these two factors," Rottman explains, "a judge can almost always find a reason to rule against a reporter’s right to protect their sources in privacy cases."

The Mechanics of the "Legal Shortcut"

The core issue is that these Privacy Act cases are not, at their heart, about journalism; they are about government misconduct. Under the Privacy Act, a plaintiff must prove that a government agent acted "willfully or intentionally" when leaking private data. Because the identity of the leaker is often unknown to the plaintiff, the journalist becomes the only path to identifying the source.

As Toni Locy observes, this has turned into a dangerous shortcut for litigators. "They want the journalists to do their work for them," she notes. "Federal judges are allowing these plaintiffs’ attorneys to go after journalists in Privacy Act civil lawsuits, which is a cheap, dangerous way for civil litigators who are looking for a payday."

This strategy effectively turns the press into an arm of the judiciary, destroying the independence that is essential to the watchdog function of the media. When reporters are forced to testify, they lose their status as neutral observers and become witnesses for the state—or against it.

Official Responses and Judicial Dissent

The legal community remains deeply divided on the matter. Following the Supreme Court’s decision to deny the stay in the Herridge case, Andrew C. Phillips, an attorney for Dr. Chen, expressed satisfaction with the outcome. "We’re pleased with the Supreme Court’s decision and hope that it will help bring a close to this matter," Phillips stated. "It follows complete vindication for Dr. Chen in the district and circuit courts."

However, the dissenting voices within the judiciary have been significant. Notably, in the Herridge case, Justice Brett Kavanaugh signaled support for granting the application for a stay, hinting at a potential openness within the highest court to revisit the balance between privacy and press freedom.

In the Locy case, then-Judge Kavanaugh was also part of a three-judge panel that stayed the fines pending a decision—a decision that never arrived due to the settlement. Locy reflects on this with a sense of frustration: "I wish they had [made a decision]. Because 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."

The Silence of Corporate Media

While independent journalists like Herridge are the most vulnerable, there is a growing concern about the role of large, corporate media outlets. When organizations like the New York Times, the Washington Post, and ABC were subpoenaed during the Wen Ho Lee case, they ultimately chose to settle, agreeing to pay significant sums to avoid the contempt proceedings.

Seth Stern, chief of advocacy at the Freedom of the Press Foundation, questions whether corporate media still views these battles as winnable or even worth the cost. "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, 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."

Implications: A Chilling Effect on Disclosure

The broader implications for the American public are severe. If a journalist cannot guarantee anonymity, sources will inevitably dry up. The "chilling effect" is not merely a theoretical construct; it is a measurable decline in the willingness of government whistleblowers to come forward.

Without the protection of a federal shield law—a goal that has been repeatedly thwarted in Congress—the ability of the press to hold the government accountable for privacy violations is increasingly dependent on the discretion of individual judges. As Rottman notes, "These cases are rare, but when they do occur, they’re really consequential for press freedom."

For the future of investigative journalism, the path forward is uncertain. Until the legislative branch codifies a robust reporter’s privilege, or the Supreme Court establishes a definitive standard that protects journalists from being used as tools in civil litigation, the risk of contempt remains a looming threat. The silence that results from this legal pressure is not just a loss for the reporter; it is a loss for the public, who remain in the dark about the inner workings of their government.

As we look at the trajectory from Locy to Herridge, one conclusion is unavoidable: the price of maintaining a free press is rising, and the burden is increasingly falling on the shoulders of the journalists who are the last line of defense between an unchecked state and an informed citizenry.