The Silent Siege: How Privacy Act Lawsuits Are Turning Journalists Into Investigative Tools

In the landscape of American journalism, the promise of source confidentiality is the bedrock upon which investigative reporting is built. Without the assurance that their identities will remain protected, whistleblowers, public servants, and experts would be unwilling to expose government misconduct. Yet, a troubling legal trend has emerged, threatening to erode this protection: the use of civil litigation, specifically under the Privacy Act, to force reporters to testify against their own sources.

While the First Amendment is often cited as a shield for the press, the absence of a federal shield law has left journalists in a precarious position. When private citizens sue the federal government for allegedly leaking personal information—violating the Privacy Act—journalists are increasingly being treated as the "shortcut" to evidentiary discovery. This practice, which has ensnared veteran reporters like Toni Locy and Catherine Herridge, is effectively turning news organizations and individual journalists into investigative arms of private litigants, raising fundamental questions about the future of press freedom in the United States.

A History of Contempt: From Anthrax to Intelligence Leaks

The intersection of private litigation and journalistic privilege is not a new phenomenon, but it has become increasingly weaponized over the past two decades.

In 2003, Toni Locy, then a reporter for USA Today, broke a series of stories regarding the FBI’s high-stakes investigation into the 2001 anthrax attacks. Her reporting centered on Dr. Steven Hatfill, a former Army scientist who had become the focal point of the FBI’s probe. When Hatfill eventually sued the federal government for violating the Privacy Act—arguing that government officials had leaked his personal information to the press to damage his reputation—he set his sights on the journalists who had covered the case.

By 2004, Hatfill’s legal team subpoenaed Locy, demanding she identify the sources who had confirmed Hatfill’s status as a "person of interest." Locy refused, citing the ethical imperative of source protection. By 2008, the legal pressure reached a boiling point. A federal judge held Locy in contempt, imposing a staggering fine structure: $500 per day for the first week, $1,000 for the second, and $5,000 for the third. In an unusual and punitive twist, the judge barred anyone—including her students at West Virginia University—from assisting her in paying the fines.

The case of Catherine Herridge, a former Fox News correspondent and now an independent journalist, mirrors this struggle. In 2017, Herridge reported on Yanping Chen, a Chinese American scientist who had been the subject of an FBI counterintelligence investigation. Although Chen was never charged with a crime, she filed a Privacy Act lawsuit against the government. In 2024, a Washington, DC, district court ordered Herridge to pay $800 for every day she refused to disclose her sources. Unlike the Locy case, where the matter was eventually settled, the Herridge case has progressed through the appellate courts, reaching the doorstep of the Supreme Court and highlighting the persistent vulnerability of journalists in the face of civil discovery.

The Legal Architecture: The Zerilli Test and Its Failings

At the heart of these conflicts is the "reporter’s privilege." While most states and the District of Columbia have enacted local shield laws to protect journalists from compelled disclosure, federal courts remain inconsistent. Much of the prevailing case law relies on the 1981 precedent set in Zerilli v. Smith.

In Zerilli, the court established a two-pronged test for determining whether a journalist can be forced to testify:

1. The information sought must go to the "heart of the matter."
2. The plaintiff must have exhausted all other reasonable means to obtain the information elsewhere.

While this test was originally designed to provide a high bar for compelled testimony, critics argue it has become a "rubber stamp" for plaintiffs. Gabe Rottman, vice president of policy at the Reporters Committee for Freedom of the Press, suggests that judges often apply these factors too broadly.

"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," Rottman explains. He argues that courts should instead perform a more rigorous assessment: "They can 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 rightly look at that and say, ‘Well, you’re going to likely lose anyway, and so we’re not going to pierce the privilege.’"

Official Responses and the Judicial Deadlock

The judiciary’s role in these cases has been a source of intense debate. In the Herridge matter, U.S. District Court Judge Christopher R. Cooper ruled that Chen had satisfied the Zerilli test, ordering Herridge to comply with subpoenas. Despite the mounting fines, the legal battle continued through the D.C. Circuit Court of Appeals, which ruled against Herridge in September 2025.

When the case reached the Supreme Court in July 2026, the Court denied Herridge’s emergency request to stay the fines. However, the move was not unanimous; Justice Brett Kavanaugh, who had previously been part of the appellate panel in the Locy case, signaled his interest by supporting the stay.

For the plaintiffs, these legal actions are a matter of clearing their names. Andrew C. Phillips, an attorney for Dr. Chen, expressed satisfaction with the court rulings. "We’re pleased with the Supreme Court’s decision and hope that it will help bring a close to this matter," Phillips said. "It follows complete vindication for Dr. Chen in the district and circuit courts."

For the journalists, however, the process is an existential threat. Toni Locy, now a professor at Washington and Lee University, reflects on her own case with frustration. "They [the appeals court] didn’t think there was a need to decide anything," she recalls of her own battle. "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. And it might have helped Catherine."

The Economic and Ethical Implications

The financial burden of these cases is significant, but the institutional impact is arguably worse. In the case of Dr. Wen Ho Lee, who sued the government over leaks regarding his investigation, several major news organizations—including The New York Times, The Washington Post, and ABC News—ultimately agreed to pay a settlement of $750,000 to end the contempt-of-court proceedings against their reporters.

This raises a cynical question: Is the truth being bought? Seth Stern, chief of advocacy at the Freedom of the Press Foundation, argues that the corporate media’s tendency to settle is a capitulation that endangers all journalists. "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… and they chose not to."

This "pay-to-play" dynamic creates a two-tiered system of journalism. Independent reporters like Herridge, who lack the vast legal war chests of legacy media conglomerates, are uniquely vulnerable to bankruptcy via daily fines. Meanwhile, the legal system treats the Privacy Act as a mechanism for civil litigants to offload their investigative work onto the press. As Locy aptly summarized: "They want the journalists to do their work for them, and federal judges are allowing these plaintiffs’ attorneys to go after journalists… which is a cheap, dangerous way for civil litigators who are looking for a payday."

Looking Ahead: The Need for Federal Reform

The lack of a federal shield law remains the most glaring omission in the protection of American journalism. While various bills have been proposed in Congress to codify reporter’s privilege at the federal level, they have repeatedly stalled. Without such a law, journalists are at the mercy of individual judges’ interpretations of Zerilli and the varying political winds of the appellate courts.

The implications of this status quo are profound. When journalists are viewed as accessible witnesses for civil litigation, their credibility as independent observers is compromised. Sources who fear that their anonymity can be peeled away by a subpoena—even years after a story is published—will inevitably go silent.

As the legal battles continue, the message to the public is increasingly clear: the press is no longer seen as a protected institution, but as a repository of information that can be coerced. If the courts continue to prioritize the discovery needs of private plaintiffs over the constitutional imperative of a free press, the era of the "unnamed source" may be coming to a quiet, forced end. For now, reporters like Herridge remain on the front lines of a fight that, while technically about Privacy Act compliance, is fundamentally about whether the American public will ever again be told the stories that powerful institutions want to keep hidden.