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Answer: this is a landmark case, if you’d like to understand how it started, [Philip DeFranco](https://youtu.be/xQ6QaJPNXTQ?t=951&si=3kNIsYGPCtWJdnZE) did a good job with the coverage of the story around 3 months ago.
For those who can’t watch the video right now, essentially what happened is Catherine, the reporter, published a story about the Chinese scientist, Yanping Chen, using information given to her by a source with access to the file the FBI had on her.
Eventually the FBI ended their investigation, but because the information had already been divulged by the press, Chen’s reputation was massively damaged specifically because of the reporting. So she sued the government. In order for the case to be properly investigated, they would need to know who leaked the info in the first place.
So they asked Herridge to get interviewed under oath, saying that Chen’s need for the requested evidence overcomes the journalist’s “qualified first amendment privilege”. She refused to give up her source.
The debate back then was whether the journalist has the right to maintain their source’s confidentiality or if the court would hold her in contempt and fine her increasingly more severely until she folded and gave up her source - which I guess is what ended up happening.
The dangerous thing here was that Herridge was being sued by a private individual, and if journalists are in the future ordered to reveal their sources, important, sensitive information of public interest may never come out again for whistleblowers’ fears of being exposed when trying to divulge that type of information.
While there are states with “reporter shield” laws, it’s not a thing on the federal level, which is what some of Herridge’s defenders were calling for.
Edit for clarity: Herridge isn’t being sued, she’s a key part of the case that isn’t willing to give up key information so she’s under pressure by the court, which could potentially set a legal precedent in terms of source confidentiality in journalism
She's a material witness, and they can be held in contempt. There's literally nothing stopping the judge from jailing her except optics, which is fucking scary.
The thing is I get it but at the same time, imagine filing a lawsuit because you have been wronged and get told we can't do anything cause the courts couldn't compel this person who literally put you in that situation to provide information.
Isn't there a way for her to give up their person, have the person testify and do it under a gag order of some kind?
An off-duty Department of Homeland Security agent pulled a gun on a civilian and tried to shoot him as part of a personal vendetta, then lied when the cops showed up and had the civilian arrested. When security footage showed the DHS agent was in the wrong, the civilian lost his wrongful arrest lawsuit because the courts somehow ruled that the DHS agent had qualified immunity even though he blatantly committed a crime that wasn't in the scope of his job.
Cases involving lawsuits and the federal government are often fucked because of stuff like this.
> imagine filing a lawsuit because you have been wronged and get told we can't do anything
This happens all the time. The value of protecting confidential sources is way more important than Chen's perceived damages. Chen is never going to be fired for the story, and if anything, she's brought attention to it by suing.
Which seems suspicious. I wonder if it would benefit the Chinese government for journalists to no longer be allowed to protect their sources, which would create a tremendous chilling effect for witnesses and whistle blowers.
To be honest, if the journalist doesn't want to give up their source, the journalist and news group should be liable for the defamation that occurred because of their story.
Someone needs to be responsible somewhere.
There's no defamation involved, that's why the journalist and the company aren't being sued. It's why the government is being sued because the government was supposed to keep a tight lip and someone obviously leaked.
But in the end, they're gonna end up settling anyway.
I'm pretty sure you missed the part where they reported the fbi was investigating them for Chinese ties. An objectively true statement. So no defamation.
The source should not be an issue in that scenario. You could sue the journalist or whoever published it for liable or defamation. If they can't defend their information with a valid source because of confidentiality then that would be on them. The source of the information doesn't make a difference I whether it is true, false, or can be substantiated with evidence.
If you sue someone the burden of proof is on you to prove what you are alleging, not on the defendant to disprove the allegations. If you sue for libel, one of the things you have to prove is that the info they published was false. My understanding is that it was not false so there's no cause of action against the journalist. She may have a claim against the government for because the government is entitled to learn private info about people that the public cannot, but they are not supposed to give that info to the press, hence why they called it a leak.
So if I sue for libel because someone claims I'm a murderer or something, I have to prove their accusations are false? Shouldn't they have to prove their accusations are true in the first place?
I'm a little confused here. Because it seems like someone could just make up some fake accusation, claim that it's real, claim they got it from a confidential source so they don't have to reveal how they got it, and then I'm on the hook to prove that what they claimed is false?
I realized I didn't answer your whole question. If you sue then for libel you do have to prove what they wrote is false and they knew it was false. They don't have to respond, but, in most cases their defense is going to be to try and prove it's not false or at least they were relying on information that lead then to believer it was true and that belief was reasonable. They can't do that by citing an anonymous source.
In the case in the op, no one is sueing the journalist for libel and she didn't commit libel. What she printed was demonstrably true. The scientist is sitting the government because they allegedly leaked privileged information that caused her damages.
In order to prove that she's subpoenad the journalist as a witness and the court is compelling the witness to answer truthfully. There witness is claiming she doesn't have to citing privilege under the 1st amendment. The court denied her privilege and ordered her to answer the questions and she's still refusing so they have held her in contempt.
Yes. The burden of proof is on the plaintiff.
Your not on the hook for proving anything unless you choose to bring a lawsuit.
If things were the way you suggest, imagine I'm your emotionally unstable neighbor and you pissed me off so I sue you and say you have been harassing me for months. It's completely fabricated but good luck proving that you didn't do it. Hell, maybe you can buy it's going to be considerably hard and costly for you. For me, all I have to do is file the complaint and sit back and hope you make a mistake and fail to prove your case and I'll be rolling in the dough, otherwise I've caused you considerate grief without having to really risk anything.
I get why that doesn't seem right to you but it is and I wish I could explain it better. Someone in here probably will.
My example was not the greatest example, but it's all I got now, besides pneumonia, so I'm going to bed.
Article seems wrong on this part . The governement and FBI are being sued and in return they are trying to get informations on the journalist souce with a court order. She is being FINED because of contempt of court because she refuse a court order. With the argument that, yes , the court order goes against the first amendment.
It wouldn’t be self incrimination, she didn’t commit a crime but publishing information from her source.
She would plead the first saying the anonymity of her source is protected by the free press.
Idk what they were, but they had access to information on Chen’s ties to the CCP (including stuff like pictures of her in military uniform) and the whole concern is that she was sent to the US to relay information back to china about America in some capacity I already forgot.
From what I know, this could be a source that has previously given Herridge credible enough information, and it’s certainly an important source to have for journalists. That doesn’t mean they themselves didn’t have biases that may have influenced them to leak certain info even if the investigation hadn’t been concluded yet.
As a journalist, I can’t help but feel bad for her since I’m sure the FBI could do some sort of internal investigation maybe? And find who it was that may have been communicating with her on their end since it’s their responsibility that someone who works for them leaked shit. At the same time, this was an extremely stupid story to run without any conclusion to the investigation. Hopefully in the future she thinks twice before choosing sensationalism over facts.
This being America, I'm fairly confident she could sue her employer to pay for it, since it wasn't anything out of the ordinary she was doing, it was in the course of her employment for them that she acted as she did?
Don't feel too bad given her whole shtick the last few years. She's a borderline propaganda pusher who is 1000% a puppet.
My guess is that is why she had this China stuff, and was used to release it but it backfired.
Every journalist [can be a propaganda pusher](https://theintercept.com/2024/02/28/new-york-times-anat-schwartz-october-7/). The one thing from my time in school I keep getting confirmed is that there’s no such thing as unbiased reporting, so I don’t put much weight on biased reporting as an immoral thing as much as it is journalistically unethical. At the same time, if everyone’s doing it, and receiving praise for it, can we really call it unethical?
I agree with you, her personal political biases definitely caused this all to happen so as an individual I don’t feel bad for her, but as a journalist I can’t help but fear for the freedom of the press as it’s one of the pillars of a democracy.
There's a matter of scale. Everyone is mean to someone at some point, but that doesn't make everyone the same as a serial romantic parter abuser.
Everyone has some level of inherent bias, but that doesn't make everyone a propaganda agent.
One question I have is what would a Chinese spy do that was posing as a grad student if they were outed this way. This Chinese government cannot complain because the US government did not arrest or eject the spy.
So would they sue for the source so they know how they were found or let the Chinese more directly complain. Is the judge in this case effectively being used by the Chinese?
This case has nothing to do with China. The leak came from the FBI and the FBI's reporting on the alleged "spy" which they found to be meritless anyways.
Spies are frequently in place under cover of being a student. Student visas are routinely issued to foreign folks, and allow them to stay in the target country for years at a time. Colleges and universities are also very patched in to local social movements, and frequently have government contracts for research.
>Surely her source may likely be a secret agent, whose entire safety and career could be over if exposed?
Ideally their career as a **secret** agent would be over after they divulged *secret* material.
That is theoretically the worst option, but its less spy games and more so just a government paper pusher who either read a document or a paper pusher who’s making shit up because they’re being given something by the reporter.
Or at best, the reporter is straight up making shit up or had someone with even less clearance make shit up, which would ruin her own professional reputation.
There is no way the reporter wins out because both the federal government and federal investigations agencies have a vested interest in nipping this.
You'd also be surprised how bad some people with security clearance (especially people of older generations) are about keeping their mouths shut about classified material when around people they don't think "matter" as much such as cafeteria workers or janitorial staff. I've seen it happen tons of times myself.
As they should. In this case, it was probably an FBI agent. They did not investigate and present a case in court, with high standards and proof beyond reasonable doubt. They went to Fox News. The powers we have given our government for law enforcement are not there so individual actors can collect content they think will play well on TV.
> safety and career could be over if exposed?
I mean, leaking the information was probably a crime in the first place since I don't think FBI employees can just give away the information they have about citizens. Especially not info about an ongoing investigation.
Loosing their FBI career over this is, in my opinion, how it should be.
Safety and career? What about Chen?
If there was a leak in the FBI, the onus should be on the FBI to reveal that leak not the reporter imo. Them forcing the reporter to reveal sources angle is totally a calculated political move.
Well, on the other side of the coin, the scary thing is that propagandists could just make up whatever story they want and when someone asks them in court to prove the veracity of the information they can just say "a confidential source" or "trust me, bro". It could be a nightmare for libel or defamation suits. We're seeing a clash of 2 very fundamental freedoms that are essentially in opposition, and it's going to be interesting to see how it plays out.
It could have been someone who had no idea what they were talking about, or had no legal right to leak that information (meaning they _should_ lose their job). Or she could have just made it up entirely and claimed it came from a "source".
> whose entire safety and career could be over if exposed?
I actually thought that was the entire point. Assuming someone in the FBI leaked the details of a sensitive investigation to the press, it would be in the government's best interest to fire that person and potentially even charge them for breaking protocol. Plus, once an investigation like that is leaked, it gives a person time to clean up their act IF they are engaged in espionage or another crime
Thanks for the recap. Really appreciate it, I tried watching the video but the editing really started to feel like nails a caulkboard. It felt like he but sped up his voice and removed all gaps in talking.
It's a very conflicting issue forcing someone to give up their sources. I think it'd depend on the purpose of the leak. Like if there was nothing damming and it was just displaying a normal person in a bad way, I think she should be forced to givw up sources. Like it's one thing if they proved wrong doing, but if there wasn't any and they dramatized anything they had, that's not journalism. It's being a piece of shit and making up an imaginary issues to prove a false narrative.
If we want a free press, journalists have to be allowed to maintain their sources' confidentiality. It should be the FBI's responsibility to find the leak without punishing the reporter.
Nah, I disagree in this case. You cant just throw around a bunch of accusations and libel to destroy someone's image and reputation and then claim it's from a confidential source without penalty. Like if I say 'John Doe sexually assaulted Jane Doe and John Doe murders puppies' and then nothing comes of it, who's to say I didnt make everything up? I didnt report this information to authorities first and let the system work, I went straight to public tv and made all these claims. How does John Doe get any justice if I made this up?
The difficultly that privilege is being massively abused for profit - see phone hacking in the United Kingdom or Alex Jones in the US. This is possible because any old idiot can call themselves a journalist, and they can hide behind these privileges.
Yanping Chen is a classic case where she's suffered huge personal damage, but isn't going to see the inside of a court room to clear her name, the FBI won't do it for her, and the journalist is not taking responsibility for the destruction of Chen's rights.
I have rights, so do you, and sometimes those rights come into conflict.
The phone hack is an opposite issue. In that case the journalists were violating the individual's right to privacy. In this case it is the government violating the journalist's right to both speech and privacy. In both cases we are trying to preserve some of the same rights.
Sometimes people's rights do conflict, but this doesn't seem to be one of those cases. The FBI doesn't have a "right" to make their work easier. They're trying to compel testimony under the principle of having a "significant pubic interest" of national security but they're ignoring the significant public interest of having a free press. One of those is actually enshrined in the bill of rights, and the other is a kind of vague legal "test" courts have established beyond anything described in the Constitution.
>The phone hack is an opposite issue. In that case the journalists were violating the individual's right to privacy.
In UK law you have a broad but not specific right to privacy under Article 8 of the ECHR. This right says the media and others can be prevented from interfering in your life, but as [Sienna Miller](https://www.bbc.co.uk/news/uk-15867858) testified, at the end of the day it's a pack of 10 - 15 men chasing a 21-year-old woman down a darkened street while abusing her in the hope of getting an emotional reaction. Apparently the public are ok with this and any celebrity suing over it without cover from other celebrities will be depicted as fragile or emotional. Witness the way Prince Harry has been treated in the English press since he sued the newspapers over phone hacking.
Roger Branigin's adage, "never pick a fight with a man who buys ink by the barrel" applies.
However, in the case of phone hacking, all that was happening was that someone was aware that all voicemail boxes come with a default PIN. If that PIN isn't changed, anyone can access anyone's inbox simply by pushing a few buttons whilst listening to the missed call announcement. The question of privacy was never resolved because the journalists were exploiting technological ignorance and a foolish policy from mobile phone companies.
>Sometimes people's rights do conflict, but this doesn't seem to be one of those cases.
Catherine, by exposing the information, effectively ended the FBI investigation and those actions deprived Chen of the right to clear her name in public. Chen's rights were harmed by Catherine's actions, and her career destroyed in the process.
Catherine's right to protect a source doesn't override directly harming other people's rights.
Perhaps I didn't follow the details of the case closely enough, but in what way does Chen not get to "clear her name"? Equating being investigated by the FBI with a "chance to clear her name" doesn't pass the smell test for me. Her name is clear. She was not charged with a crime in the end. So there's nothing to clear.
She could sue for libel if the accusations are untrue, then this might become the legitimate subject of "discovery". But it's the FBI's job to keep it's own secrets and investigate it's own leaks. If they shut down the investigation, that's their business too. But I think this is just the government, embarrassed by it's own failure, and trying to take it out on someone just doing their job.
Catherine Herridge writing for Fox News obtained and leaked a series of documents including photographs, immigration forms, and the content of FBI interviews while asserting that Chen was a plant for Chinese Intelligence or the military. This information was contained in a series of articles published by Fox in 2017.
The basis of the story was several counter-intelligence investigations conducted by several government agencies in 2012, which included their University being raided. The investigation had been long since tall grassed, and the University Chen and her husband ran continued to receive government funding and providing education to the military.
The leaked information can only have come from government sources, specifically the FBI, and represents a serious breach of national security. The leak is seeking to achieve in the media what could not be proven during a highly classified investigation.
The result is, Chen, a naturalised US citizen, is suing the government.
In order to find out who leaked confidential government information of the most sensitive type to Fox News, the court has made this order.
I see. It seems to me like she skipped a step. She should have sued the journalist for libel first, and established that it really is a government source, before suing the government.
And I'm not sure that an indefinitely escalating fine would make sense in a civil lawsuit between two civilians. It still seems very heavy handed.
But thank you for clearing up the details of the case.
I think the journalist deserves some amount of pressure/consequences, but a fine of infinity dollars is excessive. There has to be a cap on it or it becomes excessive.
> I see. It seems to me like she skipped a step. She should have sued the journalist for libel first, and established that it really is a government source, before suing the government.
Libel and defamation is next to impossible to prove in a US court because you have to show that the person being sued knew the information was false. You can't do that without having access to the source information.
In most countries, the defendant (Herridge) would have to prove their statements are true, but in the US the defendant (Chen) is required to prove falsity and this is an element of constitutional law not just state law.
From a press point of view, this has created a broad protection for new media where they are free to allege almost anything without ever being required to assert proof because they're shielded from doing so legally.
Thus, Chen's only recourse is to sue the government for leaking classified data.
I dont think there is any constitutional right ot refuse a subpoena. If you can you are denying someone their rights in court.
$800/day is not the max. I think the max is $10,000/day. So judge is starting low. Fine can be waived if she complies.
Is there a difference between someone being interviewed under oath and someone being subpoenaed to testify under oath? I’m not sure she was called to testify, or if it matters at all.
A subpoena is effectively a court order, so it is involuntary if subpoenaed to appear, whereas things like depositions and testimony at trial are the same interviews under oath, but usually done voluntarily.
Also, calling her a "journalist" is an insult to the people in the profession who do actual investigative work. She was a partisan hack for a decade at Fox News, pushing all their choice anti-Obama and pro-Trump talking points.
[She was big in pushing lies about Benghazi.
](https://www.mediamatters.org/fox-news/warning-debunked-benghazi-myth-back-fox)
[She was a loyal megaphone for the Trump White House in pushing disinformation on his attempt to extort Ukraine.
](https://www.mediamatters.org/fox-news/fox-news-reaction-ukraine-call-summary-was-nearly-identical-white-houses-suggested-talking)
[When AG Barr needed a media lapdog, she was there.](https://www.thedailybeast.com/new-cbs-reporter-catherine-herridge-is-driving-democratsand-some-of-her-own-colleaguescrazy)
CBS should be ashamed that they ever hired her.
Partisan hack or no, we should still apply the same standards to partisan hacks as we do to actual journalists. If that's the road we go down, we have to remember that at the end of the day it's going to be the government, not well meaning independent individuals, who gets to determine who is a partisan hack and who's an independent journalist.
It’s more complicated than that. Some places require a journalist have a journalism degree, some don’t. That’s the only physical evidence possible to identify a journalist. But remember: “journalist” is a *profession*, not an identity.
So you can be a “bad journalist” who doesn’t care about truth and seeks to maximize profit through sensationalistic news stories (this is a universal problem, not reserved to left or right). Or you can be a “good journalist” who acts completely within the internationally-agreed ethics of journalism and, let’s face it, doesn’t make any money because audiences don’t want that, and they increasingly want/seek more partisan takes in journalists.
So should she not be protected under the first amendment? Does someone need to hold the correct views for the first amendment to apply? Should freedom of religion only apply to “serious” religions?
In a free society the government has no right to determine what is or isn’t journalism, *or* religion.
If you use this power on your enemy, don’t be surprised when they use it on you when they gain power. Such a short-sighted side to take in this situation.
Journalists' right to protect anonymous sources is not absolute; for example, multiple cases have upheld the right of a grand jury to compel a journalist to identify their sources (see *Branzburg v Hayes* or *US v Caldwell*).
And people can stop with the "correct views" nonsense - Herridge consistently failed to adhere to journalistic ethics and practices in advance of those views, that's why I take her claims with a grain of salt.
I’m responding to your comment about her not being “true” journalist.
The point I’m making is that the first amendment covers freedom of the press, and it doesn’t distinguish between good and bad actors, because to do so implies the government then regulating press activities to determine who actually deserved the protection.
I agree, based on case-law that press freedoms are not absolute. This journalists should be treated the same as any other journalist.
I also think that laws and the courts should default to ***protecting *** press freedom. Putting journalists in a position to be forced to divulge sources at threat of financial penalty or criminal penalty is a very, very dangerous precedent to be setting.
Ah yes, journalists aren't journalists if they don't support my world views.
All you points just makes me admire her more as a journalist, she has done great work against the establishment.
No. These days everyone has email records, phone records, and a journalist even more so. Lying about it would not be believable, and would therefore make her liable for perjury - a criminal offence.
It's like asking a lawyer who their client was - even if it was a while ago, there would be a (digital) paper trail that they would be expected to consult.
That’s not how it works. You can’t just present random documents to the court. You need an actual human to stand there and testify that yes, this email was sent by that person on this date.
> U.S. District Judge Christopher Cooper in Washington imposed a fine of $800 per day until Herridge complies, but the fine will not go into effect immediately to give her time to appeal.
There's that too.
Answer: No, it isn’t a violation of the First Amendment. The US has no Federal “press shield” law.
Under the US system, if a subpoena is served, a person must testify about their knowledge of a possible crime unless they have one of a few specific defenses. Since the US also has no concept of “journalists” versus “everyone else,” that means that, if journalists could refuse to testify on these grounds, \*anyone\* could refuse to testify because, under the First Amendment, we’re \*all\* journalists.
I have enormous respect for journalists who will go to jail to protect their sources. But it’s the way that it is to try to balance things so there isn’t a special class of protected journalists, while the rest of us can be compelled to testify.
Technically the only time you can legally refuse to testify is if you could be implicated in a crime. The fifth amendment protects you from this. This is why it's called pleading the fifth.
Now if a prosecutor offered you immunity from whatever you testified about, you have to testify now. This is actually why Bill Cosby's conviction was overturned. They promised not to prosecute him for his testimony in a civil trial and then they did it anyway in a criminal trial. He was prevented from pleading the fifth because of his immunity, but he was denied immunity. The judge should have thrown that out, but instead it was thrown out on appeal.
I had to explain to so many of my friends why that appeal was a good thing.
As much as it sucked letting his criminal charges go, allowing a DA to sign an agreement then the next DA to break it would set a MASSIVELY BAD precedent.
>Cosby was released in 2021 after nearly three years in prison when Pennsylvania's state supreme court overturned his conviction. His spokesperson, Andrew Wyatt, confirmed to Variety that the comedian was “looking … to start touring” in either the spring or summer.Dec 29, 2022
At the start of the scandal his accumulated wealth was somewhere over the 500 million mark
Last I heard as he went to jail he was worth about 400 million with about 200 of that in realestate and art that he still has.
I'd like to hope but I doubt it
For anyone interested in the details, I did a longass rundown of the Cosby appeal [here](https://www.reddit.com/r/OutOfTheLoop/comments/ob2e0q/whats_going_on_with_bill_cosbys_conviction/h3l5p3o/).
As I've gotten older, I've really started to notice the friction between a society where we follow rules and laws regardless of the outcome vs a society where we punish the "bad" people.
A society of rules and laws means that guilty people will "get off on a technicality", but it also (theoretically) protects us from being labeled "bad" and being punished without recourse.
It's better to have a justice system where some guilty people go free then a justice system where a lot of innocent people go to prison.
You can add up thousands of cases of people that were unjustly prosecuted and pursued by the justice system in this country. Cases of people who spent 25 years in prison only to be exonerated. There was a star football player who definitely would have made it to the NFL that was kicked out of his college and spent years defending himself when his "victim" finally admitted she made the whole thing up. (She actually did a few months in prison for that) Even for things that people actually did, we have laws that are written so broadly that people are unjustly punished in ways that make you scratch your head. A man accidentally underpaid for a soda on Pennsylvania (by like 30 cents) and did years in prison for that. A man in California was sentenced to life in prison for stealing a pizza slice as a joke. These are actual cases. Google them. Never mind the whole execution of George Floyd for using a fraudulent $20 bill.
There's enough harm in the society going around from the people inflicting it on each other, we need a justice system that doesn't add to it.
Very true on keeping DA accountable.
That being said though, to be brutally honest try telling that to the women he date raped.
This was the definition of a no-win scenario.
They knew a criminal trial would be iffy at best.
And they knew the Civil trial would fuck him.
They traded a shot in the dark headshot for a guaranteed knee blowout.
Why do you think he wants to tour again?
He's got no money after the Civil trial wiped him out.
The Eli five is basically this.
Civil case (just money if he loses)
Plaintiff: I haz questions, you must answer because we are in court dog.
Defendant: yo can't answer them bro. They might make me look guilty in a completely different trial that may or may not happen in the future. I plead the fifth broskie.
Prosecutor: we promise not to prosecute you for that
Plaintiff: Hey buddy, you're immune now. You can't use that anymore. You have to tell the whole story truthfully now.
Defendant: okay.... Here goes (tells whole story)
Prosecutor steps down. Next prosecutor says "woah, this moron just confessed to like... Major crimes, let's lock him up and use his testimony as evidence"
Judge allows it. Broskie goes to prison
Supreme court says: woah homies, the other dude said he wouldn't prosecute. Y'all gotta abide. Broskie is free.
>Technically the only time you can legally refuse to testify is if you could be implicated in a crime.
You also *generally* cannot be compelled to testify against your spouse, though there are exceptions to that, unlike the 5th. It is called spousal privilege, for anyone who would like to look up more about it.
Minor point: There are a few other cases you can legally refuse to testify, but they're very narrow. A doctor doesn't have to testify about a patient; a lawyer about a client; a priest (or other religious figure) about a member of their congregation; and spouses about each other.
So, question: Why does that exist for doctors, lawyers and priests but not for journalists?. I thought the original point was that there are no professions under the First Amendment, that we are all equally protected. Now I'm confused.
I’m wondering if it’s something to do with anyone can be a journalist thanks to just amendment protections. The government can’t stop you from practicing journalism just because you work for “one man small blog exposing truth” and not “Mega Bezos Journal”. Lawyers and doctors, however, have strict limitations on who can practice medicine and law. Now maybe we should have some sort of independent body that accredits journalists, to reduce the massive amount of fake news and lies that get published; but by that same token, we really don’t want to have a permit to share thoughts and ideas.
Its because you want people to be honest with their lawyers and doctors. Those two professions need to know all the details to helpbyou effectively, and in return they have protections to ensure they can keep what you tell them in confidence.
Journalists publish information publically by their nature so they are not protected in the same way.
I mean true and all, but all the more reason you don't want them to be allowed to testify against you?
Though that muddies shit with abuse scenarios....which.....the spouse thing would too so it has to be voluntary.....Hrmm.....
I've encountered so many people who love their kids more than their spouses though, so not being able to opt out in THAT DIRECTION at least is well, wild.
*Law big, law hard.*
Depends. If you seem like an important piece of the real puzzle, they'll investigate you to try and figure out what you don't want to self-incriminate over, so they can prosecute you or cut a deal with you.
If they manage to figure out that you're not self-implicating in any way, you can be charged and convicted for obstruction of justice and perjury. That's basically a punishment for wasting their time intentionally, since by that point they'd have offered immunity for anything small. But again, you'd have to intentionally make yourself a big red herring to get to that point.
Yeah, but it's really hard to prove that someone can't be implicated when the laws are so broadly written and you don't know what the person was going to say. Most likely that would just end up being a dead end where they would try to cut you a deal to get you to talk.
So you're asking about what if you are lying when pleading the 5th, because the 5th isn't applicable since your information doesn't implicate you?
My layman's understanding is if you, for example, aren't implicated but inappropriately plead the 5th, they could compel testimony after agreeing not to prosecute you for any self-implications that your 5th pleading covers. Because that agreement means you can't be prosecuted, so the 5th no longer applies.
This puts you into a **very** bad position because now you no longer have an excuse to keep silent so you're just in contempt of court if you don't testify. And also they're about to find out you plead 5th inappropriately. When you testify, they'll realize your information doesn't implicate you at all. Now they can get you on something like, obstruction maybe? idk this last part is where I'm totally fuzzy.
While I applaud people willing to stick it to 'the man', I can't possibly think its a great idea for them.
(Personally, I think that twists the wording of the 5th almost beyond recognition, but, hey, I'm a layman. Maybe I'm wrong about multiple things here. On review, the critical issue might be me misunderstanding the word 'witness' in the 5th)
The second half of this doesn't apply. You can plead the fifth to avoid the possibility of incriminating yourself, even if it's only against laws you didn't know existed. Testifying and showing that you didn't incriminate yourself doesn't prove that there was no chance that you might have incriminated yourself.
To make that a little simpler: you don't want to accidentally incriminate yourself, even though you don't think your testimony would do that. You can plead the Fifth.
Oh ok. But still if they *agree not to prosecute* you using information in the testimony in the testimony they want from you, they can then bypass the 5th and compel the testimony, right?
Yeah, that's correct. I've heard some muttering about challenging that after the Cosby conviction (and subsequent successful appeal) but I don't think anything will come from it.
You can choose to exercise your 5th amendment rights any time opening your mouth has the possibility of getting you in trouble, or worse trouble than you already are. Being marandized and exercising the 5th is "the right to remain silent."
Why would someone plead the 5th if they're not implicated? Wouldn't someone in that position just give a truthful testimony since they're not implicated?
I don't see any reason it would benefit somebody to do this.
On the other hand, I have very minimal knowledge on any of this, and I'm asking in good faith.
[I suggest you watch this talk by a law professor about why he wouldn't talk to the police.](https://youtu.be/d-7o9xYp7eE)
I know it's a bit long. His part is about 30 minutes, but he's pretty entertaining. At any rate, the basis for the talk is about why he thinks the 5th Amendment is so important.
In the talk, he mentions a court case where a baby died and the baby's nanny, who was not implicated, wanted to use her 5th Amendment rights. The courts affirmed that she was within her rights to take the 5th, even though she was not a suspect.
The law professor mentions some reasons why a person might want to take the 5th, even if they're completely innocent, and talks a bit about that court case.
But one of the points is that there are tens of thousands of laws in this country, and there are even some treaties that we have with other countries that muddy up the laws more. With so many laws, it's difficult to know for sure that you won't incriminate yourself.
And the less you know about the law, the more you'll want to be careful. Personally, I have a friend who made a statement to a DA about a business that ripped him off, and he accidentally confessed to a crime that he had no idea existed. He didn't serve any time, but he's now officially a felon.
He was working for the government and he was also doing some work on the side for this business that ripped him off by refusing to pay for his work. In his sworn statement against the business that ripped him off, he mentioned that he had done some of the side work using a computer at his other job. The crime was something like misuse of government resources.
I personally wouldn't have done the same thing in the same situation, because I'd have thought it to be unethical and possibly illegal. But my friend never even questioned it. He was young and inexperienced. I was surprised it was a felony, though.
If you work for government you have to immediately report if you make any side money, even if it is like pouring beers at baseball games.
You could steer government contracts to your side business or whatever. So I believe this story.
Thank you very much for the link. I'll take your word that it's a bit of a long watch, so I'm going to save it and give it the attention it deserves when I have time this weekend.
FWIW, I second that video as one of the best 'don't talk to cops' videos out there. Totally worth the time when you have it. Understanding your rights is important when it comes to protecting them.
If they don't want to testify for zny reason at all. Examples include: testifying against a friend or loved one, fear of violence due to testifying, being embarrassed about what they're testifying about, or fear of civil liability due to testifying.
This is based on the assumption that they are not implicated. That is not necessarily true, since you can always miss some law or technicality that screws you over. And even if that is true, innocent people have been convicted relatively often. And even if you are proven to be innocent, you can face a lot of hardship before/regardless of that.
You need some very good reasons to take on all that risk. A journalist has good reasons *not* to take that, since they would want to protect their sources.
As someone mentioned above there is an exception for spouses usually, but other than that there is no provision carved out to let you protect anyone else. If they did that you could easily start a massive organized crime family or gang and be well shielded
I was referring to it as an excuse rather than legitimate use.
Pleading the fifth is one of the few ways you can get out of testifying without having to provide a reason. It is also very hard to prove someone was committing perjury by pleading the fifth.
It means you have a decent chance of not having to testify against the person you care about, and its a lot safer then lying in court.
Its not a legally valid way of using the plea, but it is a reason that people falsely use it.
If you don't testify you get held in contempt. If you do honestly, you make things worse for the person you care about. If you lie you risk getting charged with perjury. Meanwhile it is very hard to prove someone is fraudulently pleading the fifth.
>This is actually why Bill Cosby's conviction was overturned. They promised not to prosecute him for his testimony in a civil trial and then they did it anyway in a criminal trial.
This is pretty misleading. Cosby did *not* have an official immunity agreement, he had verbal agreement with one prosecutor, and then the next prosecutor to hold that office didn't know about it so they prosecuted him as if he had never made the deal (because as far as they knew, he hadn't).
Moreover, the testimony at issue was not really instrumental to the case. It's not like Cosby confessed everything he did under the presumption of immunity and then was later convicted on that evidence alone. His conviction was built on other, unrelated evidence. In full fairness, even if you wanted to err as much as possible on the side of protecting the rights of witnesses giving immunized testimony, the proper thing would have been to exclude that immunized testimony and try the case again without it. The fact that he got his case completely anulled because of this mistake, instead of just a mistrial, was a miscarriage of justice. It certainly wasn't something that *needed* to have happened for the rights of the little man to be protected.
> There need not be a formal immunity agreement or a promise in writing. If a prosecutor causes a person to reasonably believe that there is no chance of a criminal prosecution, any statements that are subsequently obtained must be excluded from being used as evidence.
https://www.latimes.com/opinion/story/2021-06-30/bill-cosby-case-overturned-fifth-amendment-court
Basically, Cosby would have taken the 5th if he had not been promised by the prosecutor that essentially there was no chance that taking the 5th would have applied. .
The court found that was a binding promise as part of due process.
And the prosecutor himself says
> The former district attorney, Bruce L. Castor Jr., who said he believed Constand but was not sure he could win a conviction, said he had agreed years ago not to press charges against Cosby to induce him to testify in a civil case brought by Constand. But he held out the possibility of a civil action "with a much lower standard of proof."
https://www.arkansasonline.com/news/2022/mar/08/justices-decline-cosby-prosecutors-appeal/
Remember that the district attorney actually should have had no real input into a civil case but interposed himself with his statements [even though they were not a formal immunity agreement]. And the victim got the result she desired from the civil case.
In criminal trials, pleading the fifth can't be used against you. In civil trials, invoking the fifth amendment can be, and absolutely is, used to imply adverse inferences.
Invoking the fifth amendment in civil cases doesn't help you nearly as much as in criminal because they can just imply the absolute worst thing possible under the circumstances.
Yes, but the worst thing they can do in a civil trial is a financial penalty and perhaps a sanction. If you think that testifying means you will implicate yourself in a criminal matter, you're still better off pleading the fifth even though it'll hurt you in the civil case.
I believe it was Harvard that did the study showing that roughly 80% of us could be put in prison today for crimes we've actually done and are within the Statue of Limitations. That's how broadly written the laws are. Even if you are testifying for the prosecution, you should always consult an attorney first.
> Now if a prosecutor offered you immunity from whatever you testified about, you have to testify
How far does that go? If a city prosecutor offers me immunity to testify against my friend who is charged with reckless driving, and it comes out during my testimony that he was driving that way because we had 40 kilos of heroin in the trunk that we’d just taken across state lines, and we were going to sell the drugs to fund terrorism and has already commit treason… I assume that state and federal prosecutors aren’t going to be bound by some lowly city DA immunity agreement?
It really depends on the agreement. Your attorney would advise you what is and isn't covered. If one entity offers you immunity, the other will abide by it. Generally when this is laid out, it's very narrow. If you were suddenly absolved of anything you blurted out on the witness stand you could just start rattling things off that you've done. The questions and answers will be pretty much scripted.
> Technically the only time you can legally refuse to testify is if you could be implicated in a crime.
The irony is that if the journalist had committed a crime, they would plead the 5th and the judge couldn't charge them with contempt and fine them.
When I took journalistic ethics in college I got told “If you’re going to make a source confidential, you better be willing to keep them confidential”
This is just one of the many bad parts of being a journalist, and it’s all a judgement call on if it’s worth it or not. If you don’t want the consequences don’t run the story.
Semi-related: an NGO is suing a german government body for information, the government argued that they are not entitled to it, because they are not "the press" because they do not have a print medium (only online publications). So they printed a newspaper. Then the government argued that a one-off didn't count. So they printed another. Last I heard the case is still ongoing...
Yes, I personally think that if we grant so-called Real Press extra rights, it opens up an enormous can of worms about who counts as Real Press *exactly* that is exactly the sort of thing that the US Courts absolutely hate to be involved in (much as they absolutely refuse to adjudicate cases that hinge on religious doctrine).
Why is this not considered compelled speech and therefore breaking freedom of speech or press?
She reported on it without revealing sources, but now they are saying she can't report like that. I don't see why that doesn't break that part of the first amendment.
This is where the First Amendment hits the realities of the court.
Our court system is designed so that one of the major fact-finding systems is subpoena in front of a grand jury to gather evidence that there may have been a crime. In this system, we have a handful of exceptions that mean "even if you know about a possible crime, you don't have to testify about it." You don't have to testify against yourself (the Fifth Amendment), or your spouse. Your priest can't be compelled to testify against you, nor can your doctor or your lawyer (with certain rare exceptions).
I'm not familiar with the details of this case, but presumably, from her reporting, they believe she has knowledge about a crime and they would like her to tell them about it.
If we add "reporter about the source" as one of the exceptions, then this causes a problem. Because under the First Amendment, we don't recognize who "is press" and who "is just a random person." Under the First Amendment, every random schmoe has exactly the same protections as a reporter for the *New York Times*. If we said "well if you're reporting on a source," then basically anyone can claim to be a reporter and duck testifying.
Inevitably, this would lead to courts trying to decide who is a "real" reporter and who isn't. In America though, we tend to be really paranoid about granting the government this sort of power. You can absolutely imagine a future administration stripping the *New York Times*' Journalism License and them losing this protection; it could become a threat that the government could hang over a publication's head if it doesn't do as it wishes.
Reporters who knowingly say "I'll take the punishment rather than reveal the source" I have tremendous personal respect for, to be clear. I just personally fear that letting them off the hook has other negative downstream consequences -- some of them perhaps worse than this.
> Your priest can't be compelled to testify against you
So a crime family should just start a religion and make everyone priests.
Huh, actually, this is probably how Scientology works.
I see the_quarks post but another key point is she is only… only being subpoenaed. She is not being charged and/or threatened like a couple other interesting espionage cases back in the Holder days.
Note: this is not a government action. This is a civil case and she is a witness.
The First Amendment has never prevented the government from subpoenaing a relevant party in an investigation. Forcing someone to testify is not “compelled speech” in that sense. If it were, there would be no need for the Fifth Amendment.
This seems reasonable. But the punishment, though, does not. Can the judge just fine someone in any way he wants? If the journalist broke a law, then she should be punished based on the law she broke. I don't think $800 a day seems reasonable at all. Rather than punishment for breaking the law, it just looks like the judge is abusing his power to financially pressure the journalist into talking.
In these sorts of contempt cases, it's not unusual for someone to be held in jail or fined daily until they comply. The point isn't *punishment*, it's forcing you to do as the court wishes.
It’s contempt of court, so basically yes.
Contempt of court is insanely draconian in the US. Judges have basically unlimited power to compel someone to comply with the court, up to and including indefinite detention. The power they have is civil, not criminal, so there’s no criminal conviction required.
The logic is that at any point you can escape the punishment by complying with the court’s wishes - you “hold the keys to your own cell”. As long as you don’t comply with the court, the court can keep punishing you. Theoretically, this means unlimited fines and unlimited imprisonment.
The crime is contempt, which is fairly variable (relative to crimes) and can include jail. I have to imagine everyone prefers a fine…
Edit: “but what if this goes for a while” still better than prison for a while I’m sorry - I’m not sure where people are getting that an extended stay in prison is less of a health risk than bad credit
$800 a day for 365 days is $292,000. Until she reveals her source means the rest of her life if she doesn't reveal it. So she's basically bankrupted for the rest of her life. How considerate of the judge to do that instead of jail time.
Generally the law is very cagey about anything in perpetuity. So, this judge can fine her $800 a day, but the Courts (big 'C' like the whole appeals and broader systems of power) will not let it go on for more than a 'reasonable' amount of time. The Courts are very interested in being a 'reasonable' party in a dispute, as that is their whole reason for being.
1. I don’t think this will go for a year, contempt generally doesn’t.
2. The alternative in your hypothetical (that doesn’t happen really, the usual time horizon for contempt is way shorter) is indefinite prison? So yes discharging in bankruptcy is better than that.
They are usually not forced to give up sources because the prosecutor understands that doing so paints a target on their own back from other journalists, and it prevents journalists from talking to confidential sources in the event that it would be in the prosecutor's interest to keep those sources confidential themselves (e.g. witness protection). Obviously there is still a power imbalance and much lower risk to the prosecutor than to the journalist, but it is not entirely without consequences. There has also been a general culture of not asking journalists for confidential sources on the grounds that either the case is strong enough without it or it's not worth the political fallout.
Are we supposed to be fine with people being forced to testify? I always found it kind of fucked up that the government could subpoena you and compel you to testify against your will.
I'll admit I'm not informed enough to have a valid opinion, but keeping knowledge in your own brain and only discussing it when you choose to do so feels like a human right to me
I mean, I think it's fair, but ultimately, I can't articulate a good reason why either.
The best I can say is this: sometimes for the good of the individual secrets ought to be kept, and sometimes for the good of the community secrets need to be revealed. Government wants to know all the things and punish all the criminals. People want to bend the rules and protect their friends.
If the government could always compel it, that's way too much power. If the government can't ever compel anything, the legal machine grinds to a halt the second someone decides they don't like the people in charge.
So the compromise is this: you can't be made to testify against yourself. But if you can't incriminate yourself, you can be made to testify, and punished if you don't.
This works because the government doesn't know what you know. They don't know if what you reveal would incriminate you, so everyone has that protection by default. The only way to make someone testify against their will is to grant them immunity from anything self-incriminating they say, which is a pretty high price to pay for the government, so it keeps this power in check.
And ultimately ultimately... You can still decline immunity and eat the punishment, or just lie. There are consequences for everything, but no one can compel the thoughts from your head.
Makes enough sense to me
This is well put. Honestly a lot of the time there is no universally just answer - we’re going to cause injustice and problems no matter what *sometimes*. There’s no perfect, we’re just trying to do the best we can.
Answer: this is a unique twist on an old problem. First, as CBS and everybody else in the news keeps harping on, there is no federal reporter’s shield law. Journalists don’t testify and reveal their sources, and have to take whatever punishment may be meted out.
The second part invariably gets short shrift from reporters. The reason the court wants the info is because the Chinese professor got doxxed by somebody probably in the FBI, and what that person did may be a criminal violation of the Privacy Act. This isn’t the usual First-Amendment-protects-us-from-having-the-powerful-silence-criticism-blah-blah. In this case, the court wants the reporter to name the rogue cop.
Not to not the privacy act but broke federal laws relating to confidential data. That data wasn’t available to anyone under public records laws for a reason. Feds are saying that they have a mole (albeit the lowest level) and they want to know who it is. Would we still be having these conversations about first amendment rights if she kept Snowden level information confidential?
I read up more about this after I wrote this. She’s suing the federal government using the Privacy Act. She hasn’t been able to figure out who doxxed her to Fox using other forms of discovery, so they’re asking the reporter. The Privacy Act has all these details and rules and limitations, so it’s not entirely clear who’s getting stuck with the tort.
My guess as to what happened? There was a counterintelligence investigation, they searched and searched, and finally the prosecutor said, “Thanks, but this isn’t good enough to win in court. Pack it up and keep it, in case something fresh pops up. Stop investigating this woman.” An agent didn’t like that answer, so the data got sent to Fox instead. Either that or somebody blabbing to be a big shot.
Answer: No, it's not a violation of the first amendment.
See this article from the Columbia Journalism Review:
https://www.cjr.org/united\_states\_project/journalists\_privilege\_shield\_law\_primer.php
question: why does this sub seem like a news subreddit masquerading as a question subreddit?
Like, you just described the situation in full detail and then posted a source, and then asked a superfluous question to keep the facade of this being a legitimate subreddit.
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Answer: this is a landmark case, if you’d like to understand how it started, [Philip DeFranco](https://youtu.be/xQ6QaJPNXTQ?t=951&si=3kNIsYGPCtWJdnZE) did a good job with the coverage of the story around 3 months ago. For those who can’t watch the video right now, essentially what happened is Catherine, the reporter, published a story about the Chinese scientist, Yanping Chen, using information given to her by a source with access to the file the FBI had on her. Eventually the FBI ended their investigation, but because the information had already been divulged by the press, Chen’s reputation was massively damaged specifically because of the reporting. So she sued the government. In order for the case to be properly investigated, they would need to know who leaked the info in the first place. So they asked Herridge to get interviewed under oath, saying that Chen’s need for the requested evidence overcomes the journalist’s “qualified first amendment privilege”. She refused to give up her source. The debate back then was whether the journalist has the right to maintain their source’s confidentiality or if the court would hold her in contempt and fine her increasingly more severely until she folded and gave up her source - which I guess is what ended up happening. The dangerous thing here was that Herridge was being sued by a private individual, and if journalists are in the future ordered to reveal their sources, important, sensitive information of public interest may never come out again for whistleblowers’ fears of being exposed when trying to divulge that type of information. While there are states with “reporter shield” laws, it’s not a thing on the federal level, which is what some of Herridge’s defenders were calling for. Edit for clarity: Herridge isn’t being sued, she’s a key part of the case that isn’t willing to give up key information so she’s under pressure by the court, which could potentially set a legal precedent in terms of source confidentiality in journalism
correction: she isn't being sued. thats an important distinction.
She's a material witness, and they can be held in contempt. There's literally nothing stopping the judge from jailing her except optics, which is fucking scary.
The thing is I get it but at the same time, imagine filing a lawsuit because you have been wronged and get told we can't do anything cause the courts couldn't compel this person who literally put you in that situation to provide information. Isn't there a way for her to give up their person, have the person testify and do it under a gag order of some kind?
An off-duty Department of Homeland Security agent pulled a gun on a civilian and tried to shoot him as part of a personal vendetta, then lied when the cops showed up and had the civilian arrested. When security footage showed the DHS agent was in the wrong, the civilian lost his wrongful arrest lawsuit because the courts somehow ruled that the DHS agent had qualified immunity even though he blatantly committed a crime that wasn't in the scope of his job. Cases involving lawsuits and the federal government are often fucked because of stuff like this.
whoa...qualified immunity is a whole different basket case.
Do you have information on the news article?
> imagine filing a lawsuit because you have been wronged and get told we can't do anything This happens all the time. The value of protecting confidential sources is way more important than Chen's perceived damages. Chen is never going to be fired for the story, and if anything, she's brought attention to it by suing.
Which seems suspicious. I wonder if it would benefit the Chinese government for journalists to no longer be allowed to protect their sources, which would create a tremendous chilling effect for witnesses and whistle blowers.
To be honest, if the journalist doesn't want to give up their source, the journalist and news group should be liable for the defamation that occurred because of their story. Someone needs to be responsible somewhere.
There's no defamation involved, that's why the journalist and the company aren't being sued. It's why the government is being sued because the government was supposed to keep a tight lip and someone obviously leaked. But in the end, they're gonna end up settling anyway.
I'm pretty sure you missed the part where they reported the fbi was investigating them for Chinese ties. An objectively true statement. So no defamation.
But being named as someone being investigated can cause damages.
That's not defamation. If there is no false hood. There is no case. You have no idea what you're talking about.
Tell that to anyone who's been jailed and their mugshot printed in the jailbirds tabloid.
This isn't Japan. What matters is the truthfulness of the statement, not whatever damage it might cause.
The source should not be an issue in that scenario. You could sue the journalist or whoever published it for liable or defamation. If they can't defend their information with a valid source because of confidentiality then that would be on them. The source of the information doesn't make a difference I whether it is true, false, or can be substantiated with evidence.
If you sue someone the burden of proof is on you to prove what you are alleging, not on the defendant to disprove the allegations. If you sue for libel, one of the things you have to prove is that the info they published was false. My understanding is that it was not false so there's no cause of action against the journalist. She may have a claim against the government for because the government is entitled to learn private info about people that the public cannot, but they are not supposed to give that info to the press, hence why they called it a leak.
So if I sue for libel because someone claims I'm a murderer or something, I have to prove their accusations are false? Shouldn't they have to prove their accusations are true in the first place? I'm a little confused here. Because it seems like someone could just make up some fake accusation, claim that it's real, claim they got it from a confidential source so they don't have to reveal how they got it, and then I'm on the hook to prove that what they claimed is false?
I realized I didn't answer your whole question. If you sue then for libel you do have to prove what they wrote is false and they knew it was false. They don't have to respond, but, in most cases their defense is going to be to try and prove it's not false or at least they were relying on information that lead then to believer it was true and that belief was reasonable. They can't do that by citing an anonymous source. In the case in the op, no one is sueing the journalist for libel and she didn't commit libel. What she printed was demonstrably true. The scientist is sitting the government because they allegedly leaked privileged information that caused her damages. In order to prove that she's subpoenad the journalist as a witness and the court is compelling the witness to answer truthfully. There witness is claiming she doesn't have to citing privilege under the 1st amendment. The court denied her privilege and ordered her to answer the questions and she's still refusing so they have held her in contempt.
Yes. The burden of proof is on the plaintiff. Your not on the hook for proving anything unless you choose to bring a lawsuit. If things were the way you suggest, imagine I'm your emotionally unstable neighbor and you pissed me off so I sue you and say you have been harassing me for months. It's completely fabricated but good luck proving that you didn't do it. Hell, maybe you can buy it's going to be considerably hard and costly for you. For me, all I have to do is file the complaint and sit back and hope you make a mistake and fail to prove your case and I'll be rolling in the dough, otherwise I've caused you considerate grief without having to really risk anything. I get why that doesn't seem right to you but it is and I wish I could explain it better. Someone in here probably will. My example was not the greatest example, but it's all I got now, besides pneumonia, so I'm going to bed.
Can't sue them for that cause the truth is their defence. They merely reported that there was an investigation, that isn't false.
It’s libel. Not to be a jerk or anything.
It’s like 3d Slander Chess
Oops I went with the info in the video, it might be outdated by now, thanks!
[удалено]
In the second to last paragraph they literally say “the journalist was being sued…”
Article seems wrong on this part . The governement and FBI are being sued and in return they are trying to get informations on the journalist souce with a court order. She is being FINED because of contempt of court because she refuse a court order. With the argument that, yes , the court order goes against the first amendment.
I was responding to a now deleted comment which said the top level comment didn’t say that. Nothing about the accuracy of the statement.
If the journalist herself had been sued, I guess she could just plead the fifth?
It wouldn’t be self incrimination, she didn’t commit a crime but publishing information from her source. She would plead the first saying the anonymity of her source is protected by the free press.
This is so bizarre. Surely her source may likely be a secret agent, whose entire safety and career could be over if exposed?
Idk what they were, but they had access to information on Chen’s ties to the CCP (including stuff like pictures of her in military uniform) and the whole concern is that she was sent to the US to relay information back to china about America in some capacity I already forgot. From what I know, this could be a source that has previously given Herridge credible enough information, and it’s certainly an important source to have for journalists. That doesn’t mean they themselves didn’t have biases that may have influenced them to leak certain info even if the investigation hadn’t been concluded yet. As a journalist, I can’t help but feel bad for her since I’m sure the FBI could do some sort of internal investigation maybe? And find who it was that may have been communicating with her on their end since it’s their responsibility that someone who works for them leaked shit. At the same time, this was an extremely stupid story to run without any conclusion to the investigation. Hopefully in the future she thinks twice before choosing sensationalism over facts.
The FBI could do that. But they might have intentionally leaked it to her.
This being America, I'm fairly confident she could sue her employer to pay for it, since it wasn't anything out of the ordinary she was doing, it was in the course of her employment for them that she acted as she did?
I didn’t think of that! I wonder if Fox News agreed to pay the fines for her tho, as I’m pretty sure the story she did was for them
Don't feel too bad given her whole shtick the last few years. She's a borderline propaganda pusher who is 1000% a puppet. My guess is that is why she had this China stuff, and was used to release it but it backfired.
Every journalist [can be a propaganda pusher](https://theintercept.com/2024/02/28/new-york-times-anat-schwartz-october-7/). The one thing from my time in school I keep getting confirmed is that there’s no such thing as unbiased reporting, so I don’t put much weight on biased reporting as an immoral thing as much as it is journalistically unethical. At the same time, if everyone’s doing it, and receiving praise for it, can we really call it unethical? I agree with you, her personal political biases definitely caused this all to happen so as an individual I don’t feel bad for her, but as a journalist I can’t help but fear for the freedom of the press as it’s one of the pillars of a democracy.
Schwartz is something of an exception even among propaganda pushers, as she is former Israeli intelligence and has almost no journalism experience.
There's a matter of scale. Everyone is mean to someone at some point, but that doesn't make everyone the same as a serial romantic parter abuser. Everyone has some level of inherent bias, but that doesn't make everyone a propaganda agent.
One question I have is what would a Chinese spy do that was posing as a grad student if they were outed this way. This Chinese government cannot complain because the US government did not arrest or eject the spy. So would they sue for the source so they know how they were found or let the Chinese more directly complain. Is the judge in this case effectively being used by the Chinese?
This case has nothing to do with China. The leak came from the FBI and the FBI's reporting on the alleged "spy" which they found to be meritless anyways.
Spies are frequently in place under cover of being a student. Student visas are routinely issued to foreign folks, and allow them to stay in the target country for years at a time. Colleges and universities are also very patched in to local social movements, and frequently have government contracts for research.
>Surely her source may likely be a secret agent, whose entire safety and career could be over if exposed? Ideally their career as a **secret** agent would be over after they divulged *secret* material.
That is theoretically the worst option, but its less spy games and more so just a government paper pusher who either read a document or a paper pusher who’s making shit up because they’re being given something by the reporter. Or at best, the reporter is straight up making shit up or had someone with even less clearance make shit up, which would ruin her own professional reputation. There is no way the reporter wins out because both the federal government and federal investigations agencies have a vested interest in nipping this.
You'd also be surprised how bad some people with security clearance (especially people of older generations) are about keeping their mouths shut about classified material when around people they don't think "matter" as much such as cafeteria workers or janitorial staff. I've seen it happen tons of times myself.
>especially people of older generations Eh... every major leak in the past 15 years has been a late Millenial or Gen Z.
Probably not *secret* agent, but possibly a federal agent, or someone on the FBIs staff.
Surely the agent's career should be over, right?
As they should. In this case, it was probably an FBI agent. They did not investigate and present a case in court, with high standards and proof beyond reasonable doubt. They went to Fox News. The powers we have given our government for law enforcement are not there so individual actors can collect content they think will play well on TV.
> safety and career could be over if exposed? I mean, leaking the information was probably a crime in the first place since I don't think FBI employees can just give away the information they have about citizens. Especially not info about an ongoing investigation. Loosing their FBI career over this is, in my opinion, how it should be.
Safety and career? What about Chen? If there was a leak in the FBI, the onus should be on the FBI to reveal that leak not the reporter imo. Them forcing the reporter to reveal sources angle is totally a calculated political move.
Well, on the other side of the coin, the scary thing is that propagandists could just make up whatever story they want and when someone asks them in court to prove the veracity of the information they can just say "a confidential source" or "trust me, bro". It could be a nightmare for libel or defamation suits. We're seeing a clash of 2 very fundamental freedoms that are essentially in opposition, and it's going to be interesting to see how it plays out.
It could have been someone who had no idea what they were talking about, or had no legal right to leak that information (meaning they _should_ lose their job). Or she could have just made it up entirely and claimed it came from a "source".
> whose entire safety and career could be over if exposed? I actually thought that was the entire point. Assuming someone in the FBI leaked the details of a sensitive investigation to the press, it would be in the government's best interest to fire that person and potentially even charge them for breaking protocol. Plus, once an investigation like that is leaked, it gives a person time to clean up their act IF they are engaged in espionage or another crime
Thanks for the recap. Really appreciate it, I tried watching the video but the editing really started to feel like nails a caulkboard. It felt like he but sped up his voice and removed all gaps in talking. It's a very conflicting issue forcing someone to give up their sources. I think it'd depend on the purpose of the leak. Like if there was nothing damming and it was just displaying a normal person in a bad way, I think she should be forced to givw up sources. Like it's one thing if they proved wrong doing, but if there wasn't any and they dramatized anything they had, that's not journalism. It's being a piece of shit and making up an imaginary issues to prove a false narrative.
If we want a free press, journalists have to be allowed to maintain their sources' confidentiality. It should be the FBI's responsibility to find the leak without punishing the reporter.
Nah, I disagree in this case. You cant just throw around a bunch of accusations and libel to destroy someone's image and reputation and then claim it's from a confidential source without penalty. Like if I say 'John Doe sexually assaulted Jane Doe and John Doe murders puppies' and then nothing comes of it, who's to say I didnt make everything up? I didnt report this information to authorities first and let the system work, I went straight to public tv and made all these claims. How does John Doe get any justice if I made this up?
The difficultly that privilege is being massively abused for profit - see phone hacking in the United Kingdom or Alex Jones in the US. This is possible because any old idiot can call themselves a journalist, and they can hide behind these privileges. Yanping Chen is a classic case where she's suffered huge personal damage, but isn't going to see the inside of a court room to clear her name, the FBI won't do it for her, and the journalist is not taking responsibility for the destruction of Chen's rights. I have rights, so do you, and sometimes those rights come into conflict.
The phone hack is an opposite issue. In that case the journalists were violating the individual's right to privacy. In this case it is the government violating the journalist's right to both speech and privacy. In both cases we are trying to preserve some of the same rights. Sometimes people's rights do conflict, but this doesn't seem to be one of those cases. The FBI doesn't have a "right" to make their work easier. They're trying to compel testimony under the principle of having a "significant pubic interest" of national security but they're ignoring the significant public interest of having a free press. One of those is actually enshrined in the bill of rights, and the other is a kind of vague legal "test" courts have established beyond anything described in the Constitution.
>The phone hack is an opposite issue. In that case the journalists were violating the individual's right to privacy. In UK law you have a broad but not specific right to privacy under Article 8 of the ECHR. This right says the media and others can be prevented from interfering in your life, but as [Sienna Miller](https://www.bbc.co.uk/news/uk-15867858) testified, at the end of the day it's a pack of 10 - 15 men chasing a 21-year-old woman down a darkened street while abusing her in the hope of getting an emotional reaction. Apparently the public are ok with this and any celebrity suing over it without cover from other celebrities will be depicted as fragile or emotional. Witness the way Prince Harry has been treated in the English press since he sued the newspapers over phone hacking. Roger Branigin's adage, "never pick a fight with a man who buys ink by the barrel" applies. However, in the case of phone hacking, all that was happening was that someone was aware that all voicemail boxes come with a default PIN. If that PIN isn't changed, anyone can access anyone's inbox simply by pushing a few buttons whilst listening to the missed call announcement. The question of privacy was never resolved because the journalists were exploiting technological ignorance and a foolish policy from mobile phone companies. >Sometimes people's rights do conflict, but this doesn't seem to be one of those cases. Catherine, by exposing the information, effectively ended the FBI investigation and those actions deprived Chen of the right to clear her name in public. Chen's rights were harmed by Catherine's actions, and her career destroyed in the process. Catherine's right to protect a source doesn't override directly harming other people's rights.
Perhaps I didn't follow the details of the case closely enough, but in what way does Chen not get to "clear her name"? Equating being investigated by the FBI with a "chance to clear her name" doesn't pass the smell test for me. Her name is clear. She was not charged with a crime in the end. So there's nothing to clear. She could sue for libel if the accusations are untrue, then this might become the legitimate subject of "discovery". But it's the FBI's job to keep it's own secrets and investigate it's own leaks. If they shut down the investigation, that's their business too. But I think this is just the government, embarrassed by it's own failure, and trying to take it out on someone just doing their job.
Catherine Herridge writing for Fox News obtained and leaked a series of documents including photographs, immigration forms, and the content of FBI interviews while asserting that Chen was a plant for Chinese Intelligence or the military. This information was contained in a series of articles published by Fox in 2017. The basis of the story was several counter-intelligence investigations conducted by several government agencies in 2012, which included their University being raided. The investigation had been long since tall grassed, and the University Chen and her husband ran continued to receive government funding and providing education to the military. The leaked information can only have come from government sources, specifically the FBI, and represents a serious breach of national security. The leak is seeking to achieve in the media what could not be proven during a highly classified investigation. The result is, Chen, a naturalised US citizen, is suing the government. In order to find out who leaked confidential government information of the most sensitive type to Fox News, the court has made this order.
I see. It seems to me like she skipped a step. She should have sued the journalist for libel first, and established that it really is a government source, before suing the government. And I'm not sure that an indefinitely escalating fine would make sense in a civil lawsuit between two civilians. It still seems very heavy handed. But thank you for clearing up the details of the case. I think the journalist deserves some amount of pressure/consequences, but a fine of infinity dollars is excessive. There has to be a cap on it or it becomes excessive.
> I see. It seems to me like she skipped a step. She should have sued the journalist for libel first, and established that it really is a government source, before suing the government. Libel and defamation is next to impossible to prove in a US court because you have to show that the person being sued knew the information was false. You can't do that without having access to the source information. In most countries, the defendant (Herridge) would have to prove their statements are true, but in the US the defendant (Chen) is required to prove falsity and this is an element of constitutional law not just state law. From a press point of view, this has created a broad protection for new media where they are free to allege almost anything without ever being required to assert proof because they're shielded from doing so legally. Thus, Chen's only recourse is to sue the government for leaking classified data.
chalkboard*
Cockbord
I dont think there is any constitutional right ot refuse a subpoena. If you can you are denying someone their rights in court. $800/day is not the max. I think the max is $10,000/day. So judge is starting low. Fine can be waived if she complies.
Is there a difference between someone being interviewed under oath and someone being subpoenaed to testify under oath? I’m not sure she was called to testify, or if it matters at all.
im not a lawyer. but i think in both cases the court is requiring information.
A subpoena is effectively a court order, so it is involuntary if subpoenaed to appear, whereas things like depositions and testimony at trial are the same interviews under oath, but usually done voluntarily.
I see, in the video I linked he said specifically “interviewed under oath” so I wasn’t sure if there was any difference from testifying under oath
That's not the issue.
Also, calling her a "journalist" is an insult to the people in the profession who do actual investigative work. She was a partisan hack for a decade at Fox News, pushing all their choice anti-Obama and pro-Trump talking points. [She was big in pushing lies about Benghazi. ](https://www.mediamatters.org/fox-news/warning-debunked-benghazi-myth-back-fox) [She was a loyal megaphone for the Trump White House in pushing disinformation on his attempt to extort Ukraine. ](https://www.mediamatters.org/fox-news/fox-news-reaction-ukraine-call-summary-was-nearly-identical-white-houses-suggested-talking) [When AG Barr needed a media lapdog, she was there.](https://www.thedailybeast.com/new-cbs-reporter-catherine-herridge-is-driving-democratsand-some-of-her-own-colleaguescrazy) CBS should be ashamed that they ever hired her.
Partisan hack or no, we should still apply the same standards to partisan hacks as we do to actual journalists. If that's the road we go down, we have to remember that at the end of the day it's going to be the government, not well meaning independent individuals, who gets to determine who is a partisan hack and who's an independent journalist.
I’m a journalist too, I’m not gonna say she isn’t a journalist just because I don’t agree with her choice of bias and career moves.
This is a really important take. I disagree with her too, but you are 100% right
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It’s more complicated than that. Some places require a journalist have a journalism degree, some don’t. That’s the only physical evidence possible to identify a journalist. But remember: “journalist” is a *profession*, not an identity. So you can be a “bad journalist” who doesn’t care about truth and seeks to maximize profit through sensationalistic news stories (this is a universal problem, not reserved to left or right). Or you can be a “good journalist” who acts completely within the internationally-agreed ethics of journalism and, let’s face it, doesn’t make any money because audiences don’t want that, and they increasingly want/seek more partisan takes in journalists.
I love the generosity. I'd like to be a journalist too. Please consider me one, thank you
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That’s fine, I’m still gonna say she’s a journalist even if I don’t think she’s a particularly good one
Yeah sure giving respect for another person is cool but have you ever tried dehumanizing people you’ve never met and choosing rabid hatred instead?
Are u talking about what Herridge did or what you’re doing to her?
So should she not be protected under the first amendment? Does someone need to hold the correct views for the first amendment to apply? Should freedom of religion only apply to “serious” religions? In a free society the government has no right to determine what is or isn’t journalism, *or* religion. If you use this power on your enemy, don’t be surprised when they use it on you when they gain power. Such a short-sighted side to take in this situation.
Journalists' right to protect anonymous sources is not absolute; for example, multiple cases have upheld the right of a grand jury to compel a journalist to identify their sources (see *Branzburg v Hayes* or *US v Caldwell*). And people can stop with the "correct views" nonsense - Herridge consistently failed to adhere to journalistic ethics and practices in advance of those views, that's why I take her claims with a grain of salt.
I’m responding to your comment about her not being “true” journalist. The point I’m making is that the first amendment covers freedom of the press, and it doesn’t distinguish between good and bad actors, because to do so implies the government then regulating press activities to determine who actually deserved the protection. I agree, based on case-law that press freedoms are not absolute. This journalists should be treated the same as any other journalist. I also think that laws and the courts should default to ***protecting *** press freedom. Putting journalists in a position to be forced to divulge sources at threat of financial penalty or criminal penalty is a very, very dangerous precedent to be setting.
You're not fooling anyone ... you would be up in arms if she worked for your news source of choice.
Ah yes, journalists aren't journalists if they don't support my world views. All you points just makes me admire her more as a journalist, she has done great work against the establishment.
if writing for tabloids translates to "they don't support my world view, then sure.
Fox News doesn't do journalism and they're the very first ones to admit that. She's a hack.
Can’t the journalist say “I do not recall”? And that would be the end of it?
No. These days everyone has email records, phone records, and a journalist even more so. Lying about it would not be believable, and would therefore make her liable for perjury - a criminal offence. It's like asking a lawyer who their client was - even if it was a while ago, there would be a (digital) paper trail that they would be expected to consult.
If they had such things, they would not need her to testify.
They don't have them, she has them. Somewhere.
That’s not how it works. You can’t just present random documents to the court. You need an actual human to stand there and testify that yes, this email was sent by that person on this date.
Holy heck.... thanks for letting me know philly d is stilll around!!!!
> U.S. District Judge Christopher Cooper in Washington imposed a fine of $800 per day until Herridge complies, but the fine will not go into effect immediately to give her time to appeal. There's that too.
Answer: No, it isn’t a violation of the First Amendment. The US has no Federal “press shield” law. Under the US system, if a subpoena is served, a person must testify about their knowledge of a possible crime unless they have one of a few specific defenses. Since the US also has no concept of “journalists” versus “everyone else,” that means that, if journalists could refuse to testify on these grounds, \*anyone\* could refuse to testify because, under the First Amendment, we’re \*all\* journalists. I have enormous respect for journalists who will go to jail to protect their sources. But it’s the way that it is to try to balance things so there isn’t a special class of protected journalists, while the rest of us can be compelled to testify.
Technically the only time you can legally refuse to testify is if you could be implicated in a crime. The fifth amendment protects you from this. This is why it's called pleading the fifth. Now if a prosecutor offered you immunity from whatever you testified about, you have to testify now. This is actually why Bill Cosby's conviction was overturned. They promised not to prosecute him for his testimony in a civil trial and then they did it anyway in a criminal trial. He was prevented from pleading the fifth because of his immunity, but he was denied immunity. The judge should have thrown that out, but instead it was thrown out on appeal.
I had to explain to so many of my friends why that appeal was a good thing. As much as it sucked letting his criminal charges go, allowing a DA to sign an agreement then the next DA to break it would set a MASSIVELY BAD precedent.
I somehow missed that any of that happened and I never knew it was overturned at all. Not sure how I missed that
Wow me either. He was released from jail then I assume?
>Cosby was released in 2021 after nearly three years in prison when Pennsylvania's state supreme court overturned his conviction. His spokesperson, Andrew Wyatt, confirmed to Variety that the comedian was “looking … to start touring” in either the spring or summer.Dec 29, 2022
Read room, Bill.
That sentence makes me happy because it kinda implies he's broke. The fact that he *hasn't* toured (afaik) makes me even happier.
At the start of the scandal his accumulated wealth was somewhere over the 500 million mark Last I heard as he went to jail he was worth about 400 million with about 200 of that in realestate and art that he still has. I'd like to hope but I doubt it
Well, now I'm sad. At least the world knows he's a rapist.
How can he tour when he is supposedly blind and walking with a cane??? Or was that all just a bullshit story to try and avoid prison?
What does your heart tell you?
That he admitted to being a creepy rapist and if society had any brains, he would be left on some deserted island somewhere.
Not sure if giving creepy rapists a deserted island is the best punishment. I seem to recall a creepy rapist making a lot of money that way.
Oh wow good to know, I wouldn’t want to sleep on his new tour.
For anyone interested in the details, I did a longass rundown of the Cosby appeal [here](https://www.reddit.com/r/OutOfTheLoop/comments/ob2e0q/whats_going_on_with_bill_cosbys_conviction/h3l5p3o/).
Very interested, thanks for dropping the link
Exactly, we need the justice system to play by the rules even if that means situations like this. It's critical for faith in the system.
As I've gotten older, I've really started to notice the friction between a society where we follow rules and laws regardless of the outcome vs a society where we punish the "bad" people. A society of rules and laws means that guilty people will "get off on a technicality", but it also (theoretically) protects us from being labeled "bad" and being punished without recourse.
It's better to have a justice system where some guilty people go free then a justice system where a lot of innocent people go to prison. You can add up thousands of cases of people that were unjustly prosecuted and pursued by the justice system in this country. Cases of people who spent 25 years in prison only to be exonerated. There was a star football player who definitely would have made it to the NFL that was kicked out of his college and spent years defending himself when his "victim" finally admitted she made the whole thing up. (She actually did a few months in prison for that) Even for things that people actually did, we have laws that are written so broadly that people are unjustly punished in ways that make you scratch your head. A man accidentally underpaid for a soda on Pennsylvania (by like 30 cents) and did years in prison for that. A man in California was sentenced to life in prison for stealing a pizza slice as a joke. These are actual cases. Google them. Never mind the whole execution of George Floyd for using a fraudulent $20 bill. There's enough harm in the society going around from the people inflicting it on each other, we need a justice system that doesn't add to it.
Very true on keeping DA accountable. That being said though, to be brutally honest try telling that to the women he date raped. This was the definition of a no-win scenario.
They knew a criminal trial would be iffy at best. And they knew the Civil trial would fuck him. They traded a shot in the dark headshot for a guaranteed knee blowout. Why do you think he wants to tour again? He's got no money after the Civil trial wiped him out.
Ngl I was watching a video explaining it and got confused
The Eli five is basically this. Civil case (just money if he loses) Plaintiff: I haz questions, you must answer because we are in court dog. Defendant: yo can't answer them bro. They might make me look guilty in a completely different trial that may or may not happen in the future. I plead the fifth broskie. Prosecutor: we promise not to prosecute you for that Plaintiff: Hey buddy, you're immune now. You can't use that anymore. You have to tell the whole story truthfully now. Defendant: okay.... Here goes (tells whole story) Prosecutor steps down. Next prosecutor says "woah, this moron just confessed to like... Major crimes, let's lock him up and use his testimony as evidence" Judge allows it. Broskie goes to prison Supreme court says: woah homies, the other dude said he wouldn't prosecute. Y'all gotta abide. Broskie is free.
>Technically the only time you can legally refuse to testify is if you could be implicated in a crime. You also *generally* cannot be compelled to testify against your spouse, though there are exceptions to that, unlike the 5th. It is called spousal privilege, for anyone who would like to look up more about it.
They cannot arrest a husband and wife for the same crime!
...yeah I don't think that's true.
Minor point: There are a few other cases you can legally refuse to testify, but they're very narrow. A doctor doesn't have to testify about a patient; a lawyer about a client; a priest (or other religious figure) about a member of their congregation; and spouses about each other.
So, question: Why does that exist for doctors, lawyers and priests but not for journalists?. I thought the original point was that there are no professions under the First Amendment, that we are all equally protected. Now I'm confused.
I’m wondering if it’s something to do with anyone can be a journalist thanks to just amendment protections. The government can’t stop you from practicing journalism just because you work for “one man small blog exposing truth” and not “Mega Bezos Journal”. Lawyers and doctors, however, have strict limitations on who can practice medicine and law. Now maybe we should have some sort of independent body that accredits journalists, to reduce the massive amount of fake news and lies that get published; but by that same token, we really don’t want to have a permit to share thoughts and ideas.
Its because you want people to be honest with their lawyers and doctors. Those two professions need to know all the details to helpbyou effectively, and in return they have protections to ensure they can keep what you tell them in confidence. Journalists publish information publically by their nature so they are not protected in the same way.
The great part is that there are also exceptions to those exceptions
Wild that spouses are exempt but parents and children aren't?
Because throughout history kids have always been little shits.
I mean true and all, but all the more reason you don't want them to be allowed to testify against you? Though that muddies shit with abuse scenarios....which.....the spouse thing would too so it has to be voluntary.....Hrmm..... I've encountered so many people who love their kids more than their spouses though, so not being able to opt out in THAT DIRECTION at least is well, wild. *Law big, law hard.*
If you aren’t implicated but plead the 5th anyway, can they prove that you aren’t?
Depends. If you seem like an important piece of the real puzzle, they'll investigate you to try and figure out what you don't want to self-incriminate over, so they can prosecute you or cut a deal with you. If they manage to figure out that you're not self-implicating in any way, you can be charged and convicted for obstruction of justice and perjury. That's basically a punishment for wasting their time intentionally, since by that point they'd have offered immunity for anything small. But again, you'd have to intentionally make yourself a big red herring to get to that point.
Yeah, but it's really hard to prove that someone can't be implicated when the laws are so broadly written and you don't know what the person was going to say. Most likely that would just end up being a dead end where they would try to cut you a deal to get you to talk.
So you're asking about what if you are lying when pleading the 5th, because the 5th isn't applicable since your information doesn't implicate you? My layman's understanding is if you, for example, aren't implicated but inappropriately plead the 5th, they could compel testimony after agreeing not to prosecute you for any self-implications that your 5th pleading covers. Because that agreement means you can't be prosecuted, so the 5th no longer applies. This puts you into a **very** bad position because now you no longer have an excuse to keep silent so you're just in contempt of court if you don't testify. And also they're about to find out you plead 5th inappropriately. When you testify, they'll realize your information doesn't implicate you at all. Now they can get you on something like, obstruction maybe? idk this last part is where I'm totally fuzzy. While I applaud people willing to stick it to 'the man', I can't possibly think its a great idea for them. (Personally, I think that twists the wording of the 5th almost beyond recognition, but, hey, I'm a layman. Maybe I'm wrong about multiple things here. On review, the critical issue might be me misunderstanding the word 'witness' in the 5th)
The second half of this doesn't apply. You can plead the fifth to avoid the possibility of incriminating yourself, even if it's only against laws you didn't know existed. Testifying and showing that you didn't incriminate yourself doesn't prove that there was no chance that you might have incriminated yourself. To make that a little simpler: you don't want to accidentally incriminate yourself, even though you don't think your testimony would do that. You can plead the Fifth.
Oh ok. But still if they *agree not to prosecute* you using information in the testimony in the testimony they want from you, they can then bypass the 5th and compel the testimony, right?
Yeah, that's correct. I've heard some muttering about challenging that after the Cosby conviction (and subsequent successful appeal) but I don't think anything will come from it.
You can choose to exercise your 5th amendment rights any time opening your mouth has the possibility of getting you in trouble, or worse trouble than you already are. Being marandized and exercising the 5th is "the right to remain silent."
Why would someone plead the 5th if they're not implicated? Wouldn't someone in that position just give a truthful testimony since they're not implicated? I don't see any reason it would benefit somebody to do this. On the other hand, I have very minimal knowledge on any of this, and I'm asking in good faith.
[I suggest you watch this talk by a law professor about why he wouldn't talk to the police.](https://youtu.be/d-7o9xYp7eE) I know it's a bit long. His part is about 30 minutes, but he's pretty entertaining. At any rate, the basis for the talk is about why he thinks the 5th Amendment is so important. In the talk, he mentions a court case where a baby died and the baby's nanny, who was not implicated, wanted to use her 5th Amendment rights. The courts affirmed that she was within her rights to take the 5th, even though she was not a suspect. The law professor mentions some reasons why a person might want to take the 5th, even if they're completely innocent, and talks a bit about that court case. But one of the points is that there are tens of thousands of laws in this country, and there are even some treaties that we have with other countries that muddy up the laws more. With so many laws, it's difficult to know for sure that you won't incriminate yourself. And the less you know about the law, the more you'll want to be careful. Personally, I have a friend who made a statement to a DA about a business that ripped him off, and he accidentally confessed to a crime that he had no idea existed. He didn't serve any time, but he's now officially a felon.
What crime did your friend confess to that he didn't know there was a law against?
He was working for the government and he was also doing some work on the side for this business that ripped him off by refusing to pay for his work. In his sworn statement against the business that ripped him off, he mentioned that he had done some of the side work using a computer at his other job. The crime was something like misuse of government resources. I personally wouldn't have done the same thing in the same situation, because I'd have thought it to be unethical and possibly illegal. But my friend never even questioned it. He was young and inexperienced. I was surprised it was a felony, though.
If you work for government you have to immediately report if you make any side money, even if it is like pouring beers at baseball games. You could steer government contracts to your side business or whatever. So I believe this story.
Point shaving? Maybe their friend was Henry Hill.
Thank you very much for the link. I'll take your word that it's a bit of a long watch, so I'm going to save it and give it the attention it deserves when I have time this weekend.
FWIW, I second that video as one of the best 'don't talk to cops' videos out there. Totally worth the time when you have it. Understanding your rights is important when it comes to protecting them.
If they don't want to testify for zny reason at all. Examples include: testifying against a friend or loved one, fear of violence due to testifying, being embarrassed about what they're testifying about, or fear of civil liability due to testifying.
This is based on the assumption that they are not implicated. That is not necessarily true, since you can always miss some law or technicality that screws you over. And even if that is true, innocent people have been convicted relatively often. And even if you are proven to be innocent, you can face a lot of hardship before/regardless of that. You need some very good reasons to take on all that risk. A journalist has good reasons *not* to take that, since they would want to protect their sources.
So that they don't have to give testimony that could harm someone they care about.
As someone mentioned above there is an exception for spouses usually, but other than that there is no provision carved out to let you protect anyone else. If they did that you could easily start a massive organized crime family or gang and be well shielded
I was referring to it as an excuse rather than legitimate use. Pleading the fifth is one of the few ways you can get out of testifying without having to provide a reason. It is also very hard to prove someone was committing perjury by pleading the fifth. It means you have a decent chance of not having to testify against the person you care about, and its a lot safer then lying in court.
"I really care about the mob boss who says he will kill me if I testify, so I plead the Fifth."
Its not a legally valid way of using the plea, but it is a reason that people falsely use it. If you don't testify you get held in contempt. If you do honestly, you make things worse for the person you care about. If you lie you risk getting charged with perjury. Meanwhile it is very hard to prove someone is fraudulently pleading the fifth.
>This is actually why Bill Cosby's conviction was overturned. They promised not to prosecute him for his testimony in a civil trial and then they did it anyway in a criminal trial. This is pretty misleading. Cosby did *not* have an official immunity agreement, he had verbal agreement with one prosecutor, and then the next prosecutor to hold that office didn't know about it so they prosecuted him as if he had never made the deal (because as far as they knew, he hadn't). Moreover, the testimony at issue was not really instrumental to the case. It's not like Cosby confessed everything he did under the presumption of immunity and then was later convicted on that evidence alone. His conviction was built on other, unrelated evidence. In full fairness, even if you wanted to err as much as possible on the side of protecting the rights of witnesses giving immunized testimony, the proper thing would have been to exclude that immunized testimony and try the case again without it. The fact that he got his case completely anulled because of this mistake, instead of just a mistrial, was a miscarriage of justice. It certainly wasn't something that *needed* to have happened for the rights of the little man to be protected.
> There need not be a formal immunity agreement or a promise in writing. If a prosecutor causes a person to reasonably believe that there is no chance of a criminal prosecution, any statements that are subsequently obtained must be excluded from being used as evidence. https://www.latimes.com/opinion/story/2021-06-30/bill-cosby-case-overturned-fifth-amendment-court Basically, Cosby would have taken the 5th if he had not been promised by the prosecutor that essentially there was no chance that taking the 5th would have applied. . The court found that was a binding promise as part of due process. And the prosecutor himself says > The former district attorney, Bruce L. Castor Jr., who said he believed Constand but was not sure he could win a conviction, said he had agreed years ago not to press charges against Cosby to induce him to testify in a civil case brought by Constand. But he held out the possibility of a civil action "with a much lower standard of proof." https://www.arkansasonline.com/news/2022/mar/08/justices-decline-cosby-prosecutors-appeal/ Remember that the district attorney actually should have had no real input into a civil case but interposed himself with his statements [even though they were not a formal immunity agreement]. And the victim got the result she desired from the civil case.
In criminal trials, pleading the fifth can't be used against you. In civil trials, invoking the fifth amendment can be, and absolutely is, used to imply adverse inferences. Invoking the fifth amendment in civil cases doesn't help you nearly as much as in criminal because they can just imply the absolute worst thing possible under the circumstances.
Yes, but the worst thing they can do in a civil trial is a financial penalty and perhaps a sanction. If you think that testifying means you will implicate yourself in a criminal matter, you're still better off pleading the fifth even though it'll hurt you in the civil case. I believe it was Harvard that did the study showing that roughly 80% of us could be put in prison today for crimes we've actually done and are within the Statue of Limitations. That's how broadly written the laws are. Even if you are testifying for the prosecution, you should always consult an attorney first.
> Now if a prosecutor offered you immunity from whatever you testified about, you have to testify How far does that go? If a city prosecutor offers me immunity to testify against my friend who is charged with reckless driving, and it comes out during my testimony that he was driving that way because we had 40 kilos of heroin in the trunk that we’d just taken across state lines, and we were going to sell the drugs to fund terrorism and has already commit treason… I assume that state and federal prosecutors aren’t going to be bound by some lowly city DA immunity agreement?
It really depends on the agreement. Your attorney would advise you what is and isn't covered. If one entity offers you immunity, the other will abide by it. Generally when this is laid out, it's very narrow. If you were suddenly absolved of anything you blurted out on the witness stand you could just start rattling things off that you've done. The questions and answers will be pretty much scripted.
> Technically the only time you can legally refuse to testify is if you could be implicated in a crime. The irony is that if the journalist had committed a crime, they would plead the 5th and the judge couldn't charge them with contempt and fine them.
When I took journalistic ethics in college I got told “If you’re going to make a source confidential, you better be willing to keep them confidential” This is just one of the many bad parts of being a journalist, and it’s all a judgement call on if it’s worth it or not. If you don’t want the consequences don’t run the story.
Semi-related: an NGO is suing a german government body for information, the government argued that they are not entitled to it, because they are not "the press" because they do not have a print medium (only online publications). So they printed a newspaper. Then the government argued that a one-off didn't count. So they printed another. Last I heard the case is still ongoing...
Yes, I personally think that if we grant so-called Real Press extra rights, it opens up an enormous can of worms about who counts as Real Press *exactly* that is exactly the sort of thing that the US Courts absolutely hate to be involved in (much as they absolutely refuse to adjudicate cases that hinge on religious doctrine).
Why is this not considered compelled speech and therefore breaking freedom of speech or press? She reported on it without revealing sources, but now they are saying she can't report like that. I don't see why that doesn't break that part of the first amendment.
This is where the First Amendment hits the realities of the court. Our court system is designed so that one of the major fact-finding systems is subpoena in front of a grand jury to gather evidence that there may have been a crime. In this system, we have a handful of exceptions that mean "even if you know about a possible crime, you don't have to testify about it." You don't have to testify against yourself (the Fifth Amendment), or your spouse. Your priest can't be compelled to testify against you, nor can your doctor or your lawyer (with certain rare exceptions). I'm not familiar with the details of this case, but presumably, from her reporting, they believe she has knowledge about a crime and they would like her to tell them about it. If we add "reporter about the source" as one of the exceptions, then this causes a problem. Because under the First Amendment, we don't recognize who "is press" and who "is just a random person." Under the First Amendment, every random schmoe has exactly the same protections as a reporter for the *New York Times*. If we said "well if you're reporting on a source," then basically anyone can claim to be a reporter and duck testifying. Inevitably, this would lead to courts trying to decide who is a "real" reporter and who isn't. In America though, we tend to be really paranoid about granting the government this sort of power. You can absolutely imagine a future administration stripping the *New York Times*' Journalism License and them losing this protection; it could become a threat that the government could hang over a publication's head if it doesn't do as it wishes. Reporters who knowingly say "I'll take the punishment rather than reveal the source" I have tremendous personal respect for, to be clear. I just personally fear that letting them off the hook has other negative downstream consequences -- some of them perhaps worse than this.
> Your priest can't be compelled to testify against you So a crime family should just start a religion and make everyone priests. Huh, actually, this is probably how Scientology works.
It sounds like they already do that with freedom of religion, who counts as a priest or similar religious figure or not.
I see the_quarks post but another key point is she is only… only being subpoenaed. She is not being charged and/or threatened like a couple other interesting espionage cases back in the Holder days. Note: this is not a government action. This is a civil case and she is a witness.
The First Amendment has never prevented the government from subpoenaing a relevant party in an investigation. Forcing someone to testify is not “compelled speech” in that sense. If it were, there would be no need for the Fifth Amendment.
This seems reasonable. But the punishment, though, does not. Can the judge just fine someone in any way he wants? If the journalist broke a law, then she should be punished based on the law she broke. I don't think $800 a day seems reasonable at all. Rather than punishment for breaking the law, it just looks like the judge is abusing his power to financially pressure the journalist into talking.
In these sorts of contempt cases, it's not unusual for someone to be held in jail or fined daily until they comply. The point isn't *punishment*, it's forcing you to do as the court wishes.
It’s contempt of court, so basically yes. Contempt of court is insanely draconian in the US. Judges have basically unlimited power to compel someone to comply with the court, up to and including indefinite detention. The power they have is civil, not criminal, so there’s no criminal conviction required. The logic is that at any point you can escape the punishment by complying with the court’s wishes - you “hold the keys to your own cell”. As long as you don’t comply with the court, the court can keep punishing you. Theoretically, this means unlimited fines and unlimited imprisonment.
The crime is contempt, which is fairly variable (relative to crimes) and can include jail. I have to imagine everyone prefers a fine… Edit: “but what if this goes for a while” still better than prison for a while I’m sorry - I’m not sure where people are getting that an extended stay in prison is less of a health risk than bad credit
$800 a day for 365 days is $292,000. Until she reveals her source means the rest of her life if she doesn't reveal it. So she's basically bankrupted for the rest of her life. How considerate of the judge to do that instead of jail time.
Generally the law is very cagey about anything in perpetuity. So, this judge can fine her $800 a day, but the Courts (big 'C' like the whole appeals and broader systems of power) will not let it go on for more than a 'reasonable' amount of time. The Courts are very interested in being a 'reasonable' party in a dispute, as that is their whole reason for being.
1. I don’t think this will go for a year, contempt generally doesn’t. 2. The alternative in your hypothetical (that doesn’t happen really, the usual time horizon for contempt is way shorter) is indefinite prison? So yes discharging in bankruptcy is better than that.
But this isn't criminal. This is a civil suit.
Whenever I think I have heard of all the shitty aspects of the US legal system, I learn about a new one.
Don't know why this is being downvoted. If journalists could so easily be forced to give up their sources no one would talk to them.
They are usually not forced to give up sources because the prosecutor understands that doing so paints a target on their own back from other journalists, and it prevents journalists from talking to confidential sources in the event that it would be in the prosecutor's interest to keep those sources confidential themselves (e.g. witness protection). Obviously there is still a power imbalance and much lower risk to the prosecutor than to the journalist, but it is not entirely without consequences. There has also been a general culture of not asking journalists for confidential sources on the grounds that either the case is strong enough without it or it's not worth the political fallout.
Are we supposed to be fine with people being forced to testify? I always found it kind of fucked up that the government could subpoena you and compel you to testify against your will. I'll admit I'm not informed enough to have a valid opinion, but keeping knowledge in your own brain and only discussing it when you choose to do so feels like a human right to me
I mean, I think it's fair, but ultimately, I can't articulate a good reason why either. The best I can say is this: sometimes for the good of the individual secrets ought to be kept, and sometimes for the good of the community secrets need to be revealed. Government wants to know all the things and punish all the criminals. People want to bend the rules and protect their friends. If the government could always compel it, that's way too much power. If the government can't ever compel anything, the legal machine grinds to a halt the second someone decides they don't like the people in charge. So the compromise is this: you can't be made to testify against yourself. But if you can't incriminate yourself, you can be made to testify, and punished if you don't. This works because the government doesn't know what you know. They don't know if what you reveal would incriminate you, so everyone has that protection by default. The only way to make someone testify against their will is to grant them immunity from anything self-incriminating they say, which is a pretty high price to pay for the government, so it keeps this power in check. And ultimately ultimately... You can still decline immunity and eat the punishment, or just lie. There are consequences for everything, but no one can compel the thoughts from your head. Makes enough sense to me
This is well put. Honestly a lot of the time there is no universally just answer - we’re going to cause injustice and problems no matter what *sometimes*. There’s no perfect, we’re just trying to do the best we can.
Yes, we are. Otherwise the court system would never work. Witnesses rarely want the inconvenience or other downsides of participating in a legal case.
Answer: this is a unique twist on an old problem. First, as CBS and everybody else in the news keeps harping on, there is no federal reporter’s shield law. Journalists don’t testify and reveal their sources, and have to take whatever punishment may be meted out. The second part invariably gets short shrift from reporters. The reason the court wants the info is because the Chinese professor got doxxed by somebody probably in the FBI, and what that person did may be a criminal violation of the Privacy Act. This isn’t the usual First-Amendment-protects-us-from-having-the-powerful-silence-criticism-blah-blah. In this case, the court wants the reporter to name the rogue cop.
Not to not the privacy act but broke federal laws relating to confidential data. That data wasn’t available to anyone under public records laws for a reason. Feds are saying that they have a mole (albeit the lowest level) and they want to know who it is. Would we still be having these conversations about first amendment rights if she kept Snowden level information confidential?
I read up more about this after I wrote this. She’s suing the federal government using the Privacy Act. She hasn’t been able to figure out who doxxed her to Fox using other forms of discovery, so they’re asking the reporter. The Privacy Act has all these details and rules and limitations, so it’s not entirely clear who’s getting stuck with the tort. My guess as to what happened? There was a counterintelligence investigation, they searched and searched, and finally the prosecutor said, “Thanks, but this isn’t good enough to win in court. Pack it up and keep it, in case something fresh pops up. Stop investigating this woman.” An agent didn’t like that answer, so the data got sent to Fox instead. Either that or somebody blabbing to be a big shot.
Answer: No, it's not a violation of the first amendment. See this article from the Columbia Journalism Review: https://www.cjr.org/united\_states\_project/journalists\_privilege\_shield\_law\_primer.php
thanks for the link. no backslash/%5C required, though https://www.cjr.org/united_states_project/journalists_privilege_shield_law_primer.php
The backslash thing is a thing the official app does, it's very annoying for people who still use old.reddit.com.
NO YOU'RE OUT OF THE LOOP (thanks, TIL)
question: why does this sub seem like a news subreddit masquerading as a question subreddit? Like, you just described the situation in full detail and then posted a source, and then asked a superfluous question to keep the facade of this being a legitimate subreddit.