Going way, way back, we’ve talked about the need for protection of journalistic sources, in particular the need for a federal journalism shield law. I can find stories going back about 15 years of us talking about it here on Techdirt. The issue might not come up that often, but that doesn’t make it any less important.

On Thursday, a judge held former CBS journalist Catherine Herridge in contempt for refusing to reveal her sources regarding stories she wrote about scientist Yanping Chen.

The ruling, from U.S. District Court Judge Christopher R. Cooper, will be stayed for 30 days or until Herridge can appeal the ruling.

Cooper ruled that Herridge violated his Aug. 1 order demanding that Herridge reveal how she learned about a federal probe into Chen, who operated a graduate program in Virginia. Herridge, who was recently laid off from CBS News, wrote the stories in question when she worked for Fox News in 2017.

In his ruling, Judge Cooper claims that he’s at least somewhat reluctant about this result, but he still goes forward with it arguing (I believe incorrectly) that he needs to balance the rights of Chen with Herridge’s First Amendment rights.

The Court does not reach this result lightly. It recognizes the paramount importance of a free press in our society and the critical role that confidential sources play in the work of investigative journalists like Herridge. Yet the Court also has its own role to play in upholding the law and safeguarding judicial authority. Applying binding precedent in this Circuit, the Court resolved that Chen’s need for the requested information to vindicate her rights under the Privacy Act overcame Herridge’s qualified First Amendment reporter’s privilege in this case. Herridge and many of her colleagues in the journalism community may disagree with that decision and prefer that a different balance be struck, but she is not permitted to flout a federal court’s order with impunity. Civil contempt is the proper and time-tested remedy to ensure that the Court’s order, and the law underpinning it, are not rendered meaningless.

But the First Amendment is not a balancing test. And if subpoenas or other attempts to reveal sources can be used in this manner, the harm to journalism will be vast. Journalism only works properly when journalists can legitimately promise confidentiality to sources. And that’s even more true for whistleblowers.

Admittedly, this case is a bit of a mess. It appears that the FBI falsely believed that Chen was a Chinese spy and investigated her, but let it go when they couldn’t support that claim. However, someone (likely in the FBI) leaked the info to Herridge, who reported on it. Chen sued the FBI, who won’t reveal who leaked the info. She’s now using lawful discovery to find out who leaked the info as part of the lawsuit. You can understand that Chen has been wronged in this situation, and it’s likely someone in the FBI who did so. And, in theory, there should be a remedy for that.

But, the problem is that this goes beyond just that situation and gets to the heart of what journalism is and why journalists need to be able to protect sources.

If a ruling like this stands, it means that no journalist can promise confidentiality, when a rush to court can force the journalist to cough up the details. And the end result is that fewer whistleblowers will be willing to speak to media, allowing more cover-ups and more corruption. The impact of a ruling like this is immensely problematic.

There’s a reason that, for years, we’ve argued for a federal shield law to make it clear that journalists should never be forced to give up sources. In the past, attempts to pass such laws have often broken down over debates concerning who they should apply to and how to identify “legitimate” journalists vs. those pretending to be journalists to avoid coughing up info.

But there is a simple solution to that: don’t have it protect “journalists,” have the law protect such information if it is obtained in the course of engaging in journalism. That is, if someone wants to make use of the shield law, they need to show that the contact and information obtained from the source was part of a legitimate effort to report a story to the public in some form, and they can present the steps they were taking to do so.

At the very least, the court recognizes that the contempt fees should be immediately stayed so that Herridge can appeal the decision:

The Court will stay that contempt sanction, however, to afford Herridge an opportunity to appeal this decision. Courts in this district and beyond have routinely stayed contempt sanctions to provide journalists ample room to litigate their assertions of privilege fully in the court of appeals before being coerced into compliance….

Hopefully, the appeals court recognizes how problematic this is. But, still, Congress can and should act to get a real shield law in place.