The three-judge panel grilled former Fox News reporter Catherine Herridge’s attorney about the case during oral arguments and appeared poised to agree with a lower court that Herridge should be held in civil contempt. The appellate court’s final decision, which could come any day, could result in Herridge facing hefty daily fines or even jail time.

Herridge’s attorney, Pat Philbin, tried to convince the three judges that there was a “balancing act” they should consider involving Herridge’s press freedom and plaintiff Yanping Chen’s claims that Chen’s privacy was violated.

Court precedent “calls for a genuine balancing test and one that is heavily weighted to ensure that the First Amendment prevails in almost all cases,” Philbin said.

However, the judges repeatedly interjected to say they interpreted past court decisions about press freedom differently.

“It’s hard to take too seriously this sweeping language that the First Amendment protecting reporters’ ability to broadcast information that is unlawfully disclosed is like this hugely overarching value that has to prevail in all but the rarest of cases,” one of the judges said.

Chen has argued that the federal government violated the Privacy Act by leaking confidential information about her to Herridge, who, in turn, reported the information to the public. The government officials had obtained Chen’s personal information while investigating whether she was affiliated with the Chinese military, Chen said.

Chen gained U.S. citizenship in 2001, and after receiving a doctorate at George Washington University, she obtained funding from the Department of Defense to operate an online technology school in northern Virginia that catered to government workers.

Herridge revealed through a series of reports for Fox News in 2017 that Chen had come under a yearslong FBI investigation for allegedly lying that she was never a member of the People’s Liberation Army so that she could continue running the school. The FBI never pressed charges against Chen, but the DOD decided to strip Chen of her funding.

Herridge’s reports included family photos of Chen, as well as immigration records, and while Chen did not challenge the underlying decision by the DOD to take away her funding in court, she sued several government agencies to find out who shared her personal information with Herridge.

Chen argued that she was entitled to know who from the government allegedly breached her privacy. After years’ worth of court proceedings in which she unsuccessfully pursued government officials, Chen then turned to Herridge as a last resort to find out who was behind the information leak.

The district court agreed this year with Chen that she had exhausted all resources available and had, therefore, overcome Herridge’s First Amendment right. Herridge refused to comply with the court’s finding and reveal her sources, leading the district court to hold her in contempt. The district court’s decision does not go into effect until Herridge’s appeal is complete.

The case has raised alarm among press freedom advocates, who have been urging Congress to pass stronger protections for journalists and their sources so that the sources feel less fearful about their identities being uncovered.

“The Herridge case starkly highlights the need for Congress to pass a federal shield law that would protect journalists from being forced to identify their confidential sources,” Gabe Rottman, a project director with the Reporters Committee for Freedom of the Press, said of the case last year.

Fox News has said it opposes the legal action against Herridge, warning that it would have a “chilling effect on journalism across the country.”

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If her appeal is unsuccessful, the district court has said that Herridge will face fines of $800 per day until she reveals her sources. Judges resort to monetary sanctions in civil contempt cases as a way to force a person into complying with the court.

Herridge left Fox News in 2019 to become a senior investigative correspondent for CBS News. She was laid off in February and has since been reporting as an independent journalist.