[00:00:00] Speaker 00: Case number 24-5050, Yanping Chen versus Federal Bureau of Investigation, Catherine Harridge at balance. [00:00:09] Speaker 00: Mr. Philvin for the at-balance, Mr. Phillips for appellee Yanping Chen. [00:00:16] Speaker 06: Mr. Philvin, good morning. [00:00:19] Speaker 06: Good morning, Your Honor. [00:00:20] Speaker 06: Thank you, Your Honor. [00:00:20] Speaker 06: Please be mindful. [00:00:21] Speaker 06: We're in open court. [00:00:22] Speaker 06: We will have a chance to discuss the sealed material with you later. [00:00:26] Speaker 03: Yes, thank you, Your Honor. [00:00:28] Speaker 03: May it please the Court, Patrick Philbin, for Appellant Katherine Harridge, and I've asked to reserve three minutes of my time for rebuttal. [00:00:36] Speaker 03: Your Honors, in ordering Ms. [00:00:38] Speaker 03: Harridge to disclose her confidential sources to plaintiff and then subsequently holding Ms. [00:00:42] Speaker 03: Harridge in contempt, the District Court flatly misapplied this Court's decision in Zerulli v. Smith. [00:00:49] Speaker 03: And that's the decision which this court outlined how the First Amendment journalist privilege applies to protect confidential sources. [00:00:56] Speaker 03: And really the central question in this appeal is the nature of the tests set by zero. [00:01:01] Speaker 03: So this morning, first, I'd like to address serially, explain that it calls for a genuine balancing test and one that is heavily weighted to ensure that the First Amendment privilege prevails in almost all cases. [00:01:13] Speaker 03: And then to address here how properly applied, that balancing test shows that the subpoena to Ms. [00:01:19] Speaker 03: Herrett should have been quashed and the order of contempt should be reversed. [00:01:24] Speaker 06: Now, the kind of the podium or speak down, what'll you're fading in [00:01:31] Speaker 06: Sorry, Your Honor. [00:01:32] Speaker 02: I was going to say, do we need to require the balancing test or just not prohibited? [00:01:38] Speaker 03: I think it is required. [00:01:39] Speaker 03: It is the test that was set by Zerilli. [00:01:41] Speaker 03: The court's language in Zerilli was. [00:01:43] Speaker 02: But Zerilli was followed up by Lee. [00:01:46] Speaker 03: Yes, and in Lee, Your Honor, the court had a somewhat truncated analysis. [00:01:51] Speaker 03: But I think that saying that the analysis can end without that balancing is inconsistent with Zerilli. [00:01:59] Speaker 05: Where is Lee saying? [00:02:01] Speaker 05: And you're ignoring me. [00:02:04] Speaker 05: And by saying that it's truncated is not a compelling argument, at least from my view. [00:02:10] Speaker 05: Lee, pretty clearly, I think, rejects what you're suggesting. [00:02:15] Speaker 05: And I don't see the really compelling what you're suggesting. [00:02:20] Speaker 05: I'm not even sure I understand what it is. [00:02:23] Speaker 05: But let's assume that a reference to balancing is [00:02:29] Speaker 05: can be described in a meaningful way, I'm not sure where Zerilli says that is the case must be and where Lee says something that's consistent with that. [00:02:44] Speaker 03: In Zerilli, Your Honor, the court said that to determine whether the privilege applies, courts should look to the facts of each case weighing the public interest in protecting the reporter's sources against the private interest in compelling disclosure. [00:02:58] Speaker 03: So we're just calling for a balancing of interest. [00:03:00] Speaker 05: They talked about centrality and exhaustion. [00:03:02] Speaker 03: It did. [00:03:02] Speaker 05: In explaining what they mean the court should do. [00:03:07] Speaker 05: And that's exactly the way Lee read it. [00:03:10] Speaker 03: It was a really tough. [00:03:11] Speaker 05: In other words, I understand. [00:03:12] Speaker 05: I knew what you were going to refer to. [00:03:14] Speaker 05: The first thing they said was kind of a general sweep. [00:03:17] Speaker 05: Then we as judges mean to often try and explain what we mean by that kind of general sweep. [00:03:23] Speaker 05: And they did. [00:03:24] Speaker 05: Centrality and exhaustion. [00:03:26] Speaker 05: And the later cases clearly follow that as the test. [00:03:30] Speaker 05: That is the way we've applied precedent. [00:03:34] Speaker 03: Your honor, in Zerilli, the court expressly reserved in footnote 52, the court in Zerilli pointed out, yes, the information here is central, but the plaintiff hasn't exhausted. [00:03:46] Speaker 03: But then it dropped a footnote to say, even if you had exhausted, we're not saying that means you would get access to the sources. [00:03:53] Speaker 03: And here's, I think, the critical thing in a privacy act case like this. [00:03:56] Speaker 03: If Zerilli is reduced to just centrality and exhaustion, the identity of the confidential source is always central in a privacy act case. [00:04:05] Speaker 03: So that means Zerilli is nothing but exhaustion. [00:04:08] Speaker 05: Again, you're reading away from Lee. [00:04:10] Speaker 05: That isn't the way we operate. [00:04:13] Speaker 05: Lee is a starting point. [00:04:15] Speaker 05: Lee picks it up and explains what the law of the circuit is. [00:04:18] Speaker 03: To the extent that Lee is inconsiderate. [00:04:22] Speaker 05: why some of us don't use them. [00:04:26] Speaker 05: I don't know what that shows, quite honestly. [00:04:29] Speaker 05: It just doesn't. [00:04:31] Speaker 05: It's kind of a laughable footnote, really. [00:04:33] Speaker 05: It says nothing. [00:04:35] Speaker 05: But we do that sometimes, because we're nervous when we're writing. [00:04:37] Speaker 05: So we say something, but then when the next panel reads it, having the faintest idea what that means. [00:04:43] Speaker 05: When Zerilli is followed by Lee, Lee clearly says, we have a two-part test, and that's what Zerilli said. [00:04:51] Speaker 03: Well, Your Honor, with respect, Lee applies a two-part test. [00:04:55] Speaker 03: It does not discuss whether there is any further balancing. [00:04:59] Speaker 03: It's not as if the court said, people have argued for balancing, and we reject that. [00:05:03] Speaker 03: And I think that's reflected in the fact that Judge Rogers, who was on the panel in Lee, joined those voting for rehearing on Bonk. [00:05:11] Speaker 03: And he wrote a short opinion saying, this is really the first case since the really where we've been called upon to describe what's the really means. [00:05:19] Speaker 03: And there's more to be addressed here [00:05:21] Speaker 03: and we should take this case on bond. [00:05:23] Speaker 05: Was on bond granted? [00:05:25] Speaker 03: It was not by an equally divided vote. [00:05:26] Speaker 05: Then we have to rely on Lee and Zerilli. [00:05:30] Speaker 03: That's true, Your Honor, but the law of this circuit is that if there is a conflict between them, the earlier decision, Zerilli, is what governs. [00:05:37] Speaker 03: And here's the critical conflict. [00:05:39] Speaker 03: In Zerilli, the court said multiple times, not just once, but on five distinct points, the court said in Zerilli that in the ordinary case, [00:05:48] Speaker 03: The civil litigants interest in disclosure should yield to the journalist privilege. [00:05:53] Speaker 03: And again, it said that cases in which the First Amendment rights should yield are few in number and that an interest sufficiently compelling to override the privilege will be rare. [00:06:02] Speaker 03: And again, that the privilege should be overridden only in rare circumstances. [00:06:06] Speaker 03: But if you reduce the really dissent, since that's all fine, but [00:06:12] Speaker 06: You know, I occasionally use footnotes and I take footnote 52 to actually be very important, but very harmful to you because it says we are reserving the question what happens when there is centrality and exhaustion, right? [00:06:34] Speaker 06: The reporter wins because there's no exhaustion. [00:06:37] Speaker 06: The court specifically reserves the question what happens [00:06:42] Speaker 06: when there is centrality and exhaustion. [00:06:46] Speaker 06: And Lee holds that centrality plus exhaustion is sufficient to override the privilege. [00:06:56] Speaker 03: In Zerilli, here is the conflict, Your Honor. [00:06:59] Speaker 03: In Zerilli, the court made clear that the privilege has to prevail in the ordinary case. [00:07:05] Speaker 03: What Lee, by truncating the analysis, essentially says is, the privilege loses in every Privacy Act case. [00:07:12] Speaker 03: Eventually, every litigant, doesn't matter how small their claim is, doesn't matter whether they're going to succeed on summary judgment or not, if they have a Privacy Act claim and they need the information and can't get it elsewhere, the First Amendment privilege always loses. [00:07:27] Speaker 02: That's directly to the fact that the court did the balancing in this case and then gets itself to the same outcome. [00:07:35] Speaker 03: Because your honor, the court was very clear that it was not providing an alternative holding and doing it a definitive balancing. [00:07:42] Speaker 03: When we attempted to seek an interlocutory appeal, that was the argument that plaintiffs made to the court was they don't need an appeal. [00:07:48] Speaker 03: You've already done the balance. [00:07:50] Speaker 03: And the court expressly denied that. [00:07:51] Speaker 03: This is at page 242 of the Joint Appendix. [00:07:54] Speaker 03: The court said, well, to the extent that I looked at the likely outcome of balancing, that was, quote, far from conclusive. [00:08:04] Speaker 03: So he was not offering an alternative holding. [00:08:06] Speaker 03: And he went on to say, it remains possible that any refinement of the applicable test by the circuit on appeal would alter the result. [00:08:14] Speaker 03: So the district court has not provided a definitive balancing that it views as. [00:08:19] Speaker 05: And what is the balancing test to you? [00:08:20] Speaker 05: It's that you always win on the First Amendment claim. [00:08:24] Speaker 05: Well, you're just flipping it. [00:08:25] Speaker 05: You're saying if you do it the way you think it was done here, you always lose. [00:08:29] Speaker 05: If you do it your way, you always win. [00:08:31] Speaker 03: Not always. [00:08:32] Speaker 03: But you are what the court said. [00:08:33] Speaker 05: I'm being very serious now. [00:08:35] Speaker 05: What is this balancing? [00:08:36] Speaker 03: Yes, it would have to look at at least a couple of things, Your Honor. [00:08:39] Speaker 03: And I think a good example showing it is Brunseth versus Marriott Corp, which is 868 F SUP 333, a case from the D. D. C. Here. [00:08:49] Speaker 03: There, a gubernatorial candidate had a story published about him about an affair. [00:08:54] Speaker 03: He lost the election. [00:08:55] Speaker 03: He sued and was trying to find out employees at Marriott who were the sources for this story. [00:09:01] Speaker 03: And the court looked at centrality. [00:09:02] Speaker 03: It looked at exhaustion. [00:09:03] Speaker 03: But then it also said, finally, plaintiff has demonstrated no overwhelming or compelling societal interest in overcoming the presumption favoring First Amendment protections for a reporter's sources. [00:09:15] Speaker 03: What does that mean? [00:09:17] Speaker 03: the court would have to look at what interest is being advanced. [00:09:21] Speaker 05: I really, I'm not sure I get what does that mean? [00:09:25] Speaker 05: That sounds like your preferred approach is always in the societal interest and you always win. [00:09:33] Speaker 03: It's not always, Your Honor. [00:09:34] Speaker 05: Tell me what that means. [00:09:35] Speaker 03: It would mean that the case would have some plaintiff's case, some more broader public interest in supporting it. [00:09:43] Speaker 03: Like what? [00:09:43] Speaker 03: Like in, for instance, what the court pointed to as election integrity. [00:09:46] Speaker 03: If it had been a case about challenging an election result, asserting that there was some fraud in the election, there is a broad societal interest in that case. [00:09:55] Speaker 03: So that is something followings are really [00:09:57] Speaker 03: before Lee. [00:09:58] Speaker 03: This is the way the district courts understood Zerulli and Grinseth, the court looked to that. [00:10:03] Speaker 03: The court also looked to whether or not the plaintiff had a realistic prospect of success on summary judgment. [00:10:10] Speaker 03: In Grinseth, the court pointed out that Marriott there [00:10:13] Speaker 03: had explained to the court that the plaintiff is likely going to lose on summary judgment for causation. [00:10:18] Speaker 03: And that also has to be part of the balancing because that's just common sense. [00:10:22] Speaker 03: Zerulli went to great length to explain that there is a systemic societal cost every time a reporter's confidential source is disclosed because it chills the flow of information to the press and impairs the ability of the press [00:10:36] Speaker 03: fulfill its function. [00:10:37] Speaker 05: You know, it's interesting you mentioned this likelihood of success of a merit should be, in your view, part of the balance. [00:10:43] Speaker 05: That's a very obvious notion if the court meant to employ it. [00:10:46] Speaker 05: We never have. [00:10:49] Speaker 05: That's a very obvious notion. [00:10:51] Speaker 05: Is it really? [00:10:52] Speaker 05: Lee would have said that had we meant to say that, that if the judge looking at it thinks there's no way this person is going to win on the merits and therefore I'm going to balance them out of existence. [00:11:04] Speaker 05: That is not said in either one of those cases. [00:11:07] Speaker 03: In Zerillo, Your Honor, I think it is implied in the instruction to conduct a balancing. [00:11:11] Speaker 03: And here, Your Honor, I would point out. [00:11:13] Speaker 05: So you wouldn't imply that, at least I don't think. [00:11:16] Speaker 05: Most of my colleagues would imply that. [00:11:18] Speaker 05: They would say it. [00:11:19] Speaker 05: If we meant to say that likelihood of success on the merits will be dispositive. [00:11:25] Speaker 05: We don't think you can win this. [00:11:27] Speaker 05: We're going to peek at the merits. [00:11:28] Speaker 05: We're not going to stay where we are. [00:11:29] Speaker 05: We're going to keep looking. [00:11:30] Speaker 05: And we don't think you can win. [00:11:31] Speaker 05: You're gone. [00:11:33] Speaker 05: Neither case says that. [00:11:35] Speaker 03: There was no need for the court to do it in Zerulli. [00:11:37] Speaker 05: No, no, we're talking about what test the court was setting forth. [00:11:40] Speaker 05: If that's the test that is being set forth, the court surely would have said that. [00:11:46] Speaker 03: What the court did say was there had to be a balancing interests. [00:11:50] Speaker 03: And if you are balancing the interests, you know you're going to cause harm on the First Amendment side by ordering disclosure. [00:11:56] Speaker 03: What is the interest on the other side? [00:11:58] Speaker 03: If the interest on the other side is a case that's about to collapse at summary judgment, that necessarily affects the way that interest can weigh in. [00:12:06] Speaker 05: I hear how you're reasoning out. [00:12:07] Speaker 05: I'm just telling you the way I think judges think, at least some of us think. [00:12:12] Speaker 05: And if that is a crucial consideration, I can't imagine how it's not stated. [00:12:17] Speaker 03: It wasn't stated in Zerilli, Your Honor, because the court could basically get off the train at you haven't exhausted alternatives, and it didn't need to go fleshing out every detail that goes into the balancing test. [00:12:28] Speaker 03: But other courts that apply the same sort of balancing repeatedly have understood that you do have to look ahead to the merits. [00:12:36] Speaker 03: That's what the First Circuit did in Bruno and Stillman versus Globe Newspapers in our briefs. [00:12:40] Speaker 03: It expressly said that before ordering disclosure, you have to look to see if the plaintiff is going to establish a jury issue on all the elements of their claim and summary judgment. [00:12:50] Speaker 03: Other state courts confronted with the same issue about First Amendment protections for reporter sources. [00:12:57] Speaker 03: The Atlanta Constitution Journal versus Jewel case cited in our brief. [00:13:00] Speaker 03: the court specifically said the analysis you have to do on this balancing may essentially be like summary judgment but that's what you have to do because it would be completely irrational to incur the systemic societal cost of disclosing confidential sources [00:13:18] Speaker 03: just for a case to collapse on summary judgment or to turn out that it's $100 case. [00:13:23] Speaker 03: That doesn't make sense. [00:13:25] Speaker 03: That's inherent. [00:13:25] Speaker 03: That's baked into the idea of a balancing test that the court set out in Zerulli. [00:13:31] Speaker 03: And as to Lee, Your Honor, the briefing in Lee was very diffuse because there were multiple different reporters with multiple different stories. [00:13:38] Speaker 03: There was a lot of different arguments about is this central to the case or not? [00:13:42] Speaker 03: Are they exhausted as to this reporter sources and that? [00:13:45] Speaker 03: And it wasn't presented as being about [00:13:48] Speaker 03: what is there more to do and so really really until the petition for rehearing stage and that's why Judge Rogers who was on the panel voted for rehearing and as Judge Tatum pointed out look to really said the First Amendment privilege has to prevail in almost every case you have to have an extraordinary showing to [00:14:07] Speaker 03: If you reduce serially to the arid factors of centrality and exhaustion, then the requirements of the most trivial litigation would trump core First Amendment values. [00:14:19] Speaker 02: And why wouldn't you consider those two factors to be burdensome? [00:14:23] Speaker 02: I mean, if you look at centrality from the standpoint of your case could be won or lose, lost on the identity of the source. [00:14:33] Speaker 02: And then of course, exhaustion would be more than just, you know, naming a few people, taking a few depositions, but really going far out to the 40 or however many plus witnesses that you could put your arms around. [00:14:44] Speaker 02: And then the court looking at that as part of that burdensome balance. [00:14:48] Speaker 03: Well, Your Honor, I think that the centrality and exhaustion, again, especially in a Privacy Act case, which really was also a Privacy Act case, centrality is always met because the identity of the source is always central to the Privacy Act plaintiff's case. [00:15:01] Speaker 02: But I'm taking it a step further saying fall and rise on it. [00:15:06] Speaker 02: I somehow feel that that is a little more significant than just saying, oh, I just need that particular reporter. [00:15:15] Speaker 03: Well, Your Honor, in a Privacy Act case, [00:15:18] Speaker 03: The laws that has developed is that in order to establish the intent or willfulness of the leak, you need to know the identity of the leak. [00:15:28] Speaker 03: So the case rises or falls. [00:15:30] Speaker 03: If the plaintiff cannot get the identity of the source, the Privacy Act case is over here. [00:15:35] Speaker 03: So in every Privacy Act case, that level of centrality is met necessarily. [00:15:41] Speaker 03: And so what it turns really into is just in every Privacy Act case, [00:15:46] Speaker 03: doesn't matter how small the case, doesn't matter if it looks like it's likely going to fail in summary judgment for other reasons, you always eventually get access to the reporter's sources. [00:15:56] Speaker 03: And that's just diametrically opposed to what the Zerilli court said. [00:16:00] Speaker 03: The Zerilli court said, [00:16:02] Speaker 03: and interest sufficiently compelling to overcome the First Amendment interest is going to be rare. [00:16:07] Speaker 03: It can't be that every single Privacy Act case automatically counts because Zerilli itself was a Privacy Act case. [00:16:14] Speaker 03: It's already baked into Zerilli when the court was explaining this very heavy weighting in favor of the First Amendment that [00:16:22] Speaker 03: Privacy Act cases aren't that special. [00:16:24] Speaker 03: Again, to Judge Edwards' point, if the court had thought every Privacy Act case is that special, it would have said something like that in Zerulli. [00:16:31] Speaker 03: And it plainly didn't. [00:16:32] Speaker 03: It said the opposite. [00:16:34] Speaker 03: What it said in Zerulli is, it's going to be very rare that you can ever show an interest that's worth overcoming the First Amendment protection [00:16:42] Speaker 02: And I've got two other areas I want to explore with you. [00:16:44] Speaker 02: One is when you're crafting essentially the definition of the press and we're now in this social media age where people hide behind Twitter, you know, you hide behind other social media outlets. [00:16:55] Speaker 02: Who are you really protecting? [00:16:57] Speaker 02: How are we defining press now? [00:16:59] Speaker 03: Well, Your Honor, I think that's a question that the court would have to address on a case-by-case basis going forward. [00:17:05] Speaker 03: But here, in this case, we're talking very traditional media. [00:17:09] Speaker 03: This was a story that was done when Ms. [00:17:10] Speaker 03: Harridge was at Fox News, and the stories appeared on Fox News. [00:17:16] Speaker 02: And then you mentioned the federal common law privilege as to whether or not we should go forward in that regard. [00:17:24] Speaker 02: And in the case of Jaffe versus Redmond, it was indicated that the testimonial privileges are evolutionary. [00:17:32] Speaker 02: Do you see anything having changed or being more nuanced now to where we're now there where we would actually try to develop a federal common law privilege? [00:17:40] Speaker 03: Well, Your Honor, I think since the time of Zerilli, more states have adopted, and that's what the federal courts look to in terms of the development of the common law. [00:17:51] Speaker 03: 49 states plus the District of Columbia have some sort of reporter's privilege. [00:17:55] Speaker 02: Why isn't that enough? [00:17:57] Speaker 03: Well, because your honor, it wouldn't apply in a case like this in federal court. [00:18:00] Speaker 03: It's a privacy case. [00:18:01] Speaker 03: It would only apply in state courts. [00:18:04] Speaker 03: And that's exactly why there shouldn't be such a disparity between the state court systems and the federal, where the state courts have all recognized that there's a need for this privilege. [00:18:13] Speaker 02: And they also have different dimensions to their particular elements of the law. [00:18:18] Speaker 03: They do have some different dimensions, but the core of it, Your Honor, that there is a First Amendment protection for, and many of those variations have to do with things like, is it a libel case or a defamation case where the reporters are the defendant? [00:18:32] Speaker 03: That's not the case here. [00:18:33] Speaker 03: So that doesn't affect this situation. [00:18:36] Speaker 03: I think the [00:18:38] Speaker 03: all 49 states and the District of Columbia have rules that would apply to protect the sources in this case. [00:18:45] Speaker 03: And so it is a situation where the law has developed in favor of the First Amendment protection. [00:18:51] Speaker 06: I mean, you know, you're trying to run away from centrality and exhaustion, which is how's really [00:19:03] Speaker 06: was applied in Lee, and you're saying, well, the earlier decisions control the later one, and you're asking us to focus on some very broad and arguably loose language from the first half of Cirilli, which is later qualified. [00:19:22] Speaker 06: But I mean, if we're going to do that, why don't we go all the way back to Kerry and Brandsburg and Garland? [00:19:30] Speaker 06: And if you look at those cases, [00:19:34] Speaker 06: First Amendment interest is set off against a very powerful competing interest that courts have a right to every person's evidence. [00:19:44] Speaker 06: And the general rule is that journalists, like every other citizen, have to testify. [00:19:50] Speaker 06: And that's a categorical rule in criminal cases. [00:19:53] Speaker 06: And going back to Garland, it's the rule whenever the information sought goes to the heart of the claim. [00:20:00] Speaker 03: Well, Your Honor, Brandsburg, I believe, [00:20:02] Speaker 03: is distinguishable because it's the criminal context. [00:20:05] Speaker 03: It was grand jury subpoena. [00:20:06] Speaker 03: And that's what this court acknowledged. [00:20:09] Speaker 03: I mean, Kerry was pre-Brandsburg. [00:20:11] Speaker 03: Zerulli was post-Brandsburg. [00:20:12] Speaker 03: And that's what the court in Zerulli recognized. [00:20:15] Speaker 06: I mean, your account of the First Amendment, I mean, Congress could criminalize Privacy Act violations, right? [00:20:24] Speaker 06: It wouldn't violate the First Amendment for Congress to criminalize Privacy Act violations, correct? [00:20:32] Speaker 03: I think that's correct. [00:20:33] Speaker 06: And if they did that, your client could be halt before a grand jury and forced to divulge her source regardless of the facts of the case. [00:20:44] Speaker 06: That's true. [00:20:45] Speaker 06: And if that's true, it's just hard to it's hard to take too seriously this sweeping language that the First Amendment [00:20:56] Speaker 06: Protecting reporters ability to broadcast information that is unlawfully disclosed. [00:21:04] Speaker 06: It's like this hugely overarching value that has to prevail in all but the rarest of cases. [00:21:11] Speaker 03: We are that is the language and the holding is really that there must be a balancing of interests and if you ignore the second half. [00:21:19] Speaker 03: No, I don't think so. [00:21:20] Speaker 06: Your honor, I think it's entirely compatible with the second half because all the second balancing could be to decide how important the information is to resolve the case. [00:21:30] Speaker 06: It's not necessarily balancing to for us to decide that. [00:21:36] Speaker 06: One privacy act, one meritorious privacy act claim is more valuable than another because. [00:21:45] Speaker 06: You know how sympathetic the plaintiffs look. [00:21:48] Speaker 03: Your Honor, I think it really is very clear that it is talking about looking at interests at stake and the public interest it acknowledges, and it goes through a very specific discussion why there is a public interest in protecting reporters' confidential sources, because that's essential for ensuring the flow of information to the press. [00:22:07] Speaker 03: That is clearly something that there's a really court for this circuit acknowledged and says has to be protected. [00:22:13] Speaker 03: And then at five points, it's not a passing reference. [00:22:16] Speaker 03: It's not just flowery language at five points. [00:22:19] Speaker 03: The court went on to point out the First Amendment privilege has to prevail in all but the most exceptional cases. [00:22:25] Speaker 03: it's going to be very rare that you can ever put an interest on the private side, the plaintiff's side of the balance, that's going to overcome. [00:22:31] Speaker 05: Is there a public interest in protecting against the release of information that Congress says should not be disclosed? [00:22:38] Speaker 05: The potential of libel that flows from that? [00:22:42] Speaker 05: I mean, you're talking about libel, as you can understand, maybe there. [00:22:45] Speaker 05: But isn't there at least implicit, if not explicit, libel in some of these privacy act cases because someone has allegedly been burned by information that Congress has said should not have been released? [00:22:58] Speaker 03: Well, Your Honor, that's something that very much distinguishes this case from earlier privacy act cases like Lee or Hatfield where there were claims of defamation. [00:23:05] Speaker 03: There's never been any claim. [00:23:06] Speaker 05: No, no, no. [00:23:07] Speaker 05: I'm saying implicit defamation, because I want to take you on your terms. [00:23:11] Speaker 05: It's a Privacy Act case. [00:23:13] Speaker 05: But undergirding it, we all know that the party who is involved in the dispute is saying, it's a Privacy Act case. [00:23:23] Speaker 05: I'm not bringing a libel action, but I've been libeled. [00:23:26] Speaker 05: And Congress has said this. [00:23:27] Speaker 05: Let me just finish. [00:23:29] Speaker 05: Congress has said, we have decided, as a legislator, this information should not be released. [00:23:34] Speaker 03: Your honor, I think it's the case, whether it's the Privacy Act, whether with some other sort of claim. [00:23:39] Speaker 03: Wherever the law gives a potential plaintiff a cause of action, one could say that there has been a recognition there is some public interest in vindicating that claim. [00:23:49] Speaker 05: But you're saying it never can outweigh your notion of the First Amendment? [00:23:53] Speaker 03: No, your honor, not never. [00:23:55] Speaker 03: That there has to be a balancing. [00:23:56] Speaker 03: And the district court here didn't do the balancing. [00:23:58] Speaker 03: So take the Grimseth case. [00:24:00] Speaker 03: What if this were a plaintiff who [00:24:04] Speaker 03: had found out that a reporter did a story on potential election interference. [00:24:09] Speaker 03: And the reporter seemed to have anonymous sources who knew something about stuffing ballots or something like that. [00:24:15] Speaker 03: And the candidate had lost the election, and the candidate was suing to challenge the election results and wanted to know from that reporter who were the sources who talked about ballot stuffing. [00:24:25] Speaker 03: There is a huge public interest that potentially could outweigh the First Amendment. [00:24:29] Speaker 03: That's the sort of situation the Grunsteth Court suggested. [00:24:32] Speaker 03: That's the sort of analysis that's really called for. [00:24:35] Speaker 03: You've got to actually look at what are the interests involved. [00:24:38] Speaker 06: And if I could, it seems like that's an argument that the Privacy Act is a bad or overbroad statute. [00:24:45] Speaker 06: Right. [00:24:45] Speaker 03: No, Your Honor, because Zerilli itself was a Privacy Act case. [00:24:49] Speaker 03: It is baked in. [00:24:51] Speaker 05: Yeah, but I mean, we're struggling with your view of Zerilli as being as narrow or as broad as you're claiming it to be, because the language, you're only reading part of the opinion. [00:25:01] Speaker 03: With respect, Your Honor, all that the second part of the opinion says are here are some guidelines that can be used to guide the balancing. [00:25:08] Speaker 03: It doesn't say this is the definitive end of the balancing after these two factors. [00:25:13] Speaker 03: And that's what plaintiff is trying to say and what the district court said here. [00:25:16] Speaker 03: And it leads to it. [00:25:18] Speaker 05: And this all leaves out Lee. [00:25:19] Speaker 05: I mean, I guess I were in your shoes. [00:25:21] Speaker 05: I'd argue it this way too. [00:25:23] Speaker 05: But you're ignoring Lee. [00:25:24] Speaker 05: Lee does not talk about Zerilli the way you're talking about Zerilli. [00:25:28] Speaker 05: And normally, we're better than that. [00:25:30] Speaker 05: As members of this court, we think there's a clear balancing test from the case that we're relying on. [00:25:39] Speaker 05: We would say that. [00:25:40] Speaker 05: That's not the way Lee reads Zarelli. [00:25:43] Speaker 03: But to the extent it does not read Zarelli that way, Your Honor, I think it's flatly incompatible with Zarelli. [00:25:48] Speaker 05: Well, there's reason to think that what you're saying is flatly inconsistent with what Zarelli said. [00:25:55] Speaker 03: Your honor, I think the language in Zerilli is very plain in saying that the First Amendment privilege has to prevail, and there has to be an actual balancing. [00:26:03] Speaker 03: And logically, if you reduce Zerilli to centrality and exhaustion, it's 180 degrees different from what Zerilli said, because it means any time a litigant actually needs the information for their case, the litigant's interest always prevails. [00:26:18] Speaker 03: That's the rule that the district court applied. [00:26:20] Speaker 03: That's the rule the plaintiffs are advocating here. [00:26:23] Speaker 03: And you cannot reconcile a rule that says a litigants interest always trumps the First Amendment with what this court said in so really because this court said exactly the opposite. [00:26:32] Speaker 03: The First Amendment has to prevail in almost every case. [00:26:36] Speaker 03: And there has been nothing put in the balance here to show that plaintiffs case in this case. [00:26:42] Speaker 03: presents sufficient interest to overcome the First Amendment. [00:26:45] Speaker 03: If I could just briefly touch on three points, Your Honor, where the weaknesses are that show that there's not much in the balance on the plaintiff's side of the case. [00:26:53] Speaker 03: The first is she's not going to be able to show damages because her damages come from DOD cutting off the money for her school on national security grounds and publicly announcing that it was doing it on national. [00:27:07] Speaker 03: I think probably all of them, Your Honor, because to the extent that- The private photographs. [00:27:12] Speaker 06: Well, it would be a statute that provides statutory damages for the steps that are hard to. [00:27:24] Speaker 03: I believe, Your Honor, that the statutory damages only kick in if the plaintiff has actually proved damage, some monetary damage. [00:27:31] Speaker 03: That's Doe versus Chao, 540 U.S. [00:27:34] Speaker 03: 614. [00:27:36] Speaker 03: So the plaintiff would have to show actual monetary damages to be able to then become entitled to the $1,000 statutory minimum. [00:27:44] Speaker 03: So the fact that DOD made an independent decision based on a fact-finding record, and that's what I can't discuss here, that is an independent agency action. [00:27:58] Speaker 03: And this whole case, this privacy act case, is an attempt to make a collateral attack on that DOD decision, which plaintiffs never challenged. [00:28:06] Speaker 03: She didn't go to court to try to get review on the DOD decision cutting off her funds. [00:28:11] Speaker 03: She didn't challenge the factual findings in court under the APA to seek review. [00:28:15] Speaker 03: She forwent all that and instead sued under the Privacy Act to try to recover under the Privacy Act the money that DOD cut off for national security reasons. [00:28:26] Speaker 03: That's what this case basically is. [00:28:28] Speaker 03: And the bulk of what plaintiff is pursuing is trying to recover the very money that DOD cut off on national security grounds without ever trying to challenge DOD's findings. [00:28:39] Speaker 03: The second big factor, Your Honor, is, as the court just suggested, that almost all the information that plaintiff claims was damaging to her did not come from Privacy Act disclosures. [00:28:52] Speaker 03: It was available from other sources. [00:28:54] Speaker 03: So remember, in the stories, Ms. [00:28:56] Speaker 03: Harridge was interviewing an FBI informant, and he was the one who explained on camera that plaintiff admitted she was a colonel in the PLA, that [00:29:06] Speaker 03: Her university was catering to US military members. [00:29:10] Speaker 03: It was gathering lots of information on them. [00:29:12] Speaker 03: And he said that it's stored in a way that it's accessible from China. [00:29:16] Speaker 03: That was all from sources, nothing to do with the Privacy Act disclosure. [00:29:20] Speaker 03: In addition to that, the FBI affidavit that was used when her premises were searched was a public document in EDVA. [00:29:28] Speaker 03: Plaintiffs haven't even challenged on this appeal that that was a public document. [00:29:32] Speaker 03: And everything in that FBI affidavit, which had transcriptions from the recordings where an informant wearing a wire had plaintiff admitting on tape she was a colonel in the PLA. [00:29:44] Speaker 03: And it had a description of all of the immigration forms where the plaintiff lied about her past in the PLA. [00:29:50] Speaker 03: and additional instances in which she lied to officers about her connections with the PLA. [00:29:56] Speaker 03: All that's in the FBI affidavit. [00:29:58] Speaker 03: And plaintiffs are not disputing that that was all public information. [00:30:02] Speaker 03: So basically, it comes down to the photo. [00:30:05] Speaker 03: That's right. [00:30:05] Speaker 03: This case, what could potentially be shown is the photos of plaintiff in her uniform as a current on the PLA. [00:30:12] Speaker 03: What is the damage? [00:30:13] Speaker 03: If anything, it can be proved separately from that. [00:30:16] Speaker 03: And then finally, Your Honor, there is the serious risk that's also ought to be weighed in the balance under Zarelli. [00:30:23] Speaker 03: Given DOD's findings, which again, I can't go into in the open session, but they're very specific findings, it raises the serious risk that the plaintiff here was actually involved in making information about US military members [00:30:38] Speaker 03: accessible in a way to the Communist Party of China, Chinese Communist Party, the PRC. [00:30:44] Speaker 03: And this Privacy Act litigation is an effort to recover funding for that activity. [00:30:52] Speaker 03: And that's also something that ought to be weighed in the balance and zero. [00:30:55] Speaker 03: And this is again, your honor, it's in the Grintzeth case. [00:30:59] Speaker 03: It's in the First Circuit decision that [00:31:03] Speaker 03: Other courts have recognized when you are confronted with this attempt to get a reporter's confidential sources, it's essential to weigh in the balance to take into account. [00:31:13] Speaker 03: What is this going to look like on summary judgment? [00:31:16] Speaker 03: And what is this case actually trying to vindicate? [00:31:18] Speaker 02: And those are things that we're just taking. [00:31:20] Speaker 02: Really did not compel the disclosure because the exhaustion requirement was not met. [00:31:26] Speaker 03: Correct. [00:31:26] Speaker 02: And I say that because you keep seeming to go with the premise that if we only have centrality and exhaustion, a plaintiff is always going to prevail because you seem to think that those are kind of low thresholds in that regard. [00:31:40] Speaker 02: But if you assume that over the course of the many depositions, the many interrogatories that people are telling the truth, [00:31:48] Speaker 02: It seems like this information that someone is seeking, meaning the plaintiff, will come out. [00:31:55] Speaker 03: Yes, but that's why I say, Your Honor, it means the plaintiff would always prevail eventually. [00:32:01] Speaker 03: It's just an exhaustion requirement. [00:32:03] Speaker 03: And there will come a time in every case. [00:32:05] Speaker 02: But I'm saying it wouldn't have to leak the source, your source, that they would get the information at some point throughout all that process of exhaustion. [00:32:17] Speaker 02: without necessarily having to have you reveal your source? [00:32:21] Speaker 03: In theory, it could happen that way. [00:32:24] Speaker 03: The way it has typically happened is that in the Lee case and the Hatfield case, the courts find that there was exhaustion. [00:32:32] Speaker 03: No one has admitted it. [00:32:34] Speaker 03: There's no way to get it except going to the reporter. [00:32:37] Speaker 03: And that's the way it ends up happening, is that it's trying to force the reporter to disclose. [00:32:41] Speaker 03: So that is, as a practical matter, where this all leads. [00:32:45] Speaker 06: OK, fair enough. [00:32:47] Speaker 06: Judge Edward. [00:32:47] Speaker 06: Okay, we'll discuss the balancing or specific. [00:32:52] Speaker 06: Thank you session. [00:33:04] Speaker 06: Mr Phillips. [00:33:06] Speaker 04: Morning, your honors may please the court. [00:33:09] Speaker 04: I want to start with Judge Edwards. [00:33:11] Speaker 04: Judge Edwards question to Mr Philbin about [00:33:15] Speaker 04: What is this balancing that Mrs. Herridge is suggesting that the district court erred by failing to do? [00:33:24] Speaker 04: In this case, Mrs. Herridge argues that the district court erred as a matter of law by failing to consider things like the potential amount of damages that Chen might be able to recover in her case, the risk that Chen may have passed information to a foreign government, [00:33:42] Speaker 04: whether the government's conduct towards Chen meets some threshold level of egregiousness, the general importance of confidential sources to the reporting process, and the fact that the reporting in this case related to national security. [00:33:59] Speaker 04: That kind of broad balancing, unmoored from really any factors or guidelines at all, it's a free for all grab bag that the district court can consider any argument that the non-party reporter throws at the wall [00:34:12] Speaker 04: that just cannot be squared with the plain language of Zerilli and Lee. [00:34:17] Speaker 04: As Your Honours have already noted, it is true that the Zerilli opinion begins with a statement about a broad general purpose to balance the plaintiff's interest in disclosure against the reporter's interest in protecting her confidential source. [00:34:31] Speaker 04: And Zerilli was actually paraphrasing Carrie V. Hume with that. [00:34:37] Speaker 04: What Erich ignores is that Zerilli did not stop there. [00:34:40] Speaker 04: It continued by explicitly stating. [00:34:42] Speaker 06: There's a little bit more in the first half, right? [00:34:46] Speaker 06: There's that statement in a Privacy Act case that the privilege must prevail in all but the most exceptional cases. [00:34:57] Speaker 06: Yeah. [00:34:58] Speaker 06: And suppose just suppose we think that first part of Zerilli, including that statement, [00:35:07] Speaker 06: is accurately states current law of the circuit. [00:35:13] Speaker 06: How would we operationalize that? [00:35:17] Speaker 06: Yeah, so I mean, I would. [00:35:19] Speaker 06: Other than this. [00:35:20] Speaker 04: As you can imagine. [00:35:21] Speaker 06: This grab bag thing that we're all struggling with, but Mr. Philbin is right that the two factor test will lead to disclosure of sources in Privacy Act case. [00:35:33] Speaker 04: So a couple points on that, Your Honor. [00:35:35] Speaker 04: As you can imagine, I'd strongly disagree with the premise that that broad general statement is the state of the law in the circuit. [00:35:40] Speaker 04: We'd have to completely ignore Lee, which we can't do. [00:35:43] Speaker 04: I will humor you. [00:35:46] Speaker 04: Ms. [00:35:46] Speaker 04: Herridge below and before this court has sought to portray the centrality and exhaustion requirements. [00:35:53] Speaker 04: To use a phrase that the district court used in another context is basically a toll booth that can be passed with loose change. [00:35:59] Speaker 04: They're just easy requirements to meet in any case. [00:36:02] Speaker 04: As to centrality, I think it's important to consider that this test is not specific to a Privacy Act case. [00:36:09] Speaker 04: This test applies across civil cases. [00:36:12] Speaker 04: So I would argue that the fact that, and it's true, in a Privacy Act case, centrality is generally going to be established because the identity of the leaker due to the mens rea requirement of the Privacy Act is absolutely crucial to the plaintiff's case. [00:36:26] Speaker 04: But I would argue that is a feature, not a bug, of the test. [00:36:30] Speaker 04: In the mine run of civil cases, information in a reporter's possession is much more likely to fall under the rubric of nice to have would be great to know. [00:36:39] Speaker 04: I take it if I could get it, but it's not absolutely crucial to my case. [00:36:43] Speaker 04: There's actually only two circumstances that I've been able to find in the circuit where [00:36:47] Speaker 04: You know, essentially the centrality factor is going to be satisfied. [00:36:50] Speaker 04: It's the privacy act cases and then looking to carry the Hume, which was a libel case, and it was a public figure case. [00:36:57] Speaker 04: So the plaintiff had to establish actual malice. [00:37:00] Speaker 04: And that's where this court first explicated this centrality and exhaustion test. [00:37:04] Speaker 04: And the court in that case had no trouble saying. [00:37:07] Speaker 04: It's absolutely central to the plaintiff's claim because the defendant reporter in that case was claiming that he had information from a source that negated actual malice. [00:37:17] Speaker 04: And so the plaintiff needed to know the identity of that source in order to prove his case. [00:37:20] Speaker 06: And that would be a great response if Zerilli itself were not a Privacy Act case. [00:37:27] Speaker 04: Zerilli itself is a Privacy Act case. [00:37:29] Speaker 04: So it doesn't, you know, [00:37:30] Speaker 04: Well, but it wasn't limiting the test to Privacy Act cases, is my point. [00:37:34] Speaker 06: And I think that... No, but this statement that the privilege almost always prevails was made in a Privacy Act case. [00:37:41] Speaker 04: That's fair, Your Honor. [00:37:42] Speaker 04: But then let's go to the second requirement. [00:37:45] Speaker 04: Zurilli itself, the same opinion, referred to the exhaustion requirement as, quote-unquote, clearly very substantial. [00:37:51] Speaker 04: And it is. [00:37:52] Speaker 04: It really suggested that a plaintiff might have to take 60 depositions before exhausting reasonable alternative avenues of discovering the leaker's identity. [00:38:01] Speaker 04: In this case, the district court referred to Dr. Chan as having pounded the pavement to uncover the identity of the leaker. [00:38:09] Speaker 04: She spent years. [00:38:10] Speaker 04: This case was filed in December of 2018. [00:38:12] Speaker 04: The subpoena to Catherine Harridge wasn't issued until the summer of 2022. [00:38:18] Speaker 04: So Dr. Chen spent years trying to fulfill that exhaustion requirement. [00:38:22] Speaker 04: There are probably not very many plaintiffs who are going to have the resources and the fortitude to do what that exhaustion requirement requires. [00:38:30] Speaker 04: That alone, I think, makes this an exceptional case. [00:38:33] Speaker 04: And then, Judge Childs, as you pointed out, if you do what Dr. Chen did and got testimony from 40 different government officials who all denied being the leaker, [00:38:44] Speaker 04: You know, again, in the mind run of cases, you would think that if you're going to take dozens of depositions of folks who had access to this information, you're probably going to uncover the identity of the leaker and not have to seek it from the reporter. [00:38:56] Speaker 04: As Judge Childs also pointed out, not all plaintiffs satisfy the exhaustion requirements. [00:39:00] Speaker 04: They really did not. [00:39:03] Speaker 04: There was the Linda Tripp case from the district court in 2016. [00:39:06] Speaker 04: 2003, sorry. [00:39:09] Speaker 04: She was denied discovery on the basis of having failed to exhaust alternative avenues. [00:39:15] Speaker 04: So the broader point being, Your Honor, that I think it is the test by design is difficult for a plaintiff to meet, particularly as the exhaustion requirement. [00:39:24] Speaker 04: And that does make this case an exceptional case. [00:39:26] Speaker 04: The Privacy Act was passed in the mid 70s. [00:39:29] Speaker 04: This is, by my count, the third time that this court has been dealing with, on appeal, a compelled disclosure from a reporter in a Privacy Act case. [00:39:40] Speaker 04: Zerilli, Lee, in this case, in over 40 years. [00:39:47] Speaker 04: Turning back to Zerilli, the language I want to highlight for the court is, quote, and this is after that broad generalized statement about we want a balance, [00:39:56] Speaker 04: Quote, a number of more precise guidelines can be applied to determine how the balance should be struck in a particular case, end quote. [00:40:04] Speaker 04: The court then identified centrality, exhaustion, and whether the reporter is a party, which is not generally relevant in these types of cases because the reporter is usually a non-party. [00:40:14] Speaker 04: Immediately after delineating those precise guidelines, the very next paragraph of the opinion, the court begins its analysis of the qualified privilege question in that case by saying, quote, applying these guidelines to the facts of the case before us, end quote, and then continuing. [00:40:31] Speaker 04: And as we've discussed, the court found centrality but did not find exhaustion. [00:40:35] Speaker 02: But if you have centrality and exhaustion as kind of your two markers, that seems to go more toward the private interest. [00:40:43] Speaker 02: How would we be considering the public interest? [00:40:46] Speaker 04: I would disagree with that, Your Honor. [00:40:47] Speaker 04: I actually think that both elements of the tests are frankly more geared towards the public interest. [00:40:52] Speaker 04: If the public interest is protecting a generalized protection of reporters' confidential sources, the centrality requirement ensures that a plaintiff's not going to get that information, again, unless it's crucial to his case. [00:41:05] Speaker 04: The case rises and falls with the information that the reporter has. [00:41:08] Speaker 04: And then again, the exhaustion requirement requires the plaintiff to go to great lengths [00:41:13] Speaker 04: to try to obtain that information from anywhere else before seeking it from the reporter. [00:41:17] Speaker 04: So I would actually argue the opposite, that I think both factors of the test are protective of the privilege. [00:41:25] Speaker 02: So are you suggesting that we just stick with centrality and exhaustion, or is it possible to have an opinion that says we're not prohibiting the balancing should a district court want to go further? [00:41:36] Speaker 04: I think a fair reading of Zerilli and Lee is that centrality and exhaustion is it. [00:41:44] Speaker 04: Lee especially was crystal clear on saying, and the quote from that case is, Zerilli cites Kerry for the two guidelines, the two guidelines to be used to determine when a non-party reporter has to provide the identity of resource in a privacy act case. [00:42:00] Speaker 04: I suppose you could argue that district courts are permitted to consider whether Mercury is in retrograde, right? [00:42:06] Speaker 04: Just because the opinion doesn't say you can't. [00:42:08] Speaker 04: But that's not a fair reading of Zerilli and Lee. [00:42:12] Speaker 04: It's also kind of irrelevant to this case. [00:42:14] Speaker 04: So Ms. [00:42:16] Speaker 04: Harridge has argued that this court's review should be de novo because she argues that the court applied the incorrect legal standard. [00:42:23] Speaker 04: What this court said in Lee very clearly is that, [00:42:26] Speaker 04: When it's a question of whether the court balanced correctly, reached the right result after applying the correct test, then review is abuse of discretion, which is a really difficult standard and one that I don't think Harridge even argues here. [00:42:38] Speaker 04: She'd have to show essentially arbitrary and capricious conduct by the district court. [00:42:43] Speaker 04: So if this court holds that not that the district court was required to conduct that balancing, but simply that it was permitted to do so, [00:42:50] Speaker 04: Well, then I think the district court was within its discretion in saying, I'm not going to do that. [00:42:54] Speaker 04: And indeed, both in the order denying the motion quash and the contempt order, the district court addressed every single argument that Ms. [00:43:05] Speaker 04: Herridge makes to this court and explained in great detail why it thinks those things are either irrelevant or not persuasive in terms of having much weight in a balancing analysis. [00:43:15] Speaker 02: With respect to the common law reporter's privilege, where you've got the 49 states that are going toward that privilege, what do you say with respect to offering a federal common law privilege? [00:43:27] Speaker 04: Yeah, so a couple of things on that, Your Honor. [00:43:29] Speaker 04: One, I think there's a little bit of sleight of hand going on with the 49 states recognizing a reporter's privilege. [00:43:35] Speaker 04: The relevant question is not, is there a consensus that there should be some protection for non-party reporters against revealing their sources. [00:43:45] Speaker 04: The circuit has that. [00:43:46] Speaker 04: That's the qualified privilege test from Zerilli and Lee. [00:43:50] Speaker 04: The real question is, is there a consensus around [00:43:53] Speaker 04: a qualified test that includes not just centrality and exhaustion, but also requires this broad and amorphous balancing approach. [00:44:02] Speaker 04: And, you know, even I invite you to look at Ms. [00:44:05] Speaker 04: Herge's principal brief. [00:44:06] Speaker 04: She has an addendum to her brief at the end that lays out these in high level detail, the different shield laws or report privileges in the various states. [00:44:16] Speaker 04: What that addendum itself shows is they're all over the place. [00:44:19] Speaker 04: I think she claims that something like 22 states do require this sort of broad balancing approach. [00:44:25] Speaker 04: Her chart also shows that at least 13 don't that have a qualified privilege. [00:44:31] Speaker 04: I actually could direct you to some statutes in certain states. [00:44:36] Speaker 04: So some of these states, it's [00:44:38] Speaker 04: You know, it's by statute, some of these states, it's a court order, but there are states that use the exact same test as the circuit already uses from the really and Lee and I'll point you to the, these are statutory report shield laws in Georgia, North Carolina, South Carolina and Oklahoma. [00:44:55] Speaker 04: All have statutory journal shield laws. [00:44:58] Speaker 04: All of them are overcome by centrality and exhaustion. [00:45:01] Speaker 04: No balancing at all. [00:45:03] Speaker 04: That's the case in Michigan as well. [00:45:05] Speaker 04: That one's not statutory. [00:45:07] Speaker 04: It's by court order. [00:45:08] Speaker 04: But all that is to say that there is no consensus among the states. [00:45:13] Speaker 04: They can't even say that a majority of states utilize the test. [00:45:16] Speaker 04: They're arguing this court should adopt as common law. [00:45:20] Speaker 04: The other thing I would say on the common law privilege is I would just urge this court to hear the words of Judge Cooper in this case below, Judge Collier in the Lee District Court case, and Judge Walton in the Hatfield case, all of whom address the question directly. [00:45:36] Speaker 04: Should there be a common law privilege that includes this amorphous kind of free-form balancing approach that Heritage wants us to use? [00:45:43] Speaker 04: Emphatically, all of those district court judges are crying out to this court, please don't make us do that. [00:45:49] Speaker 04: We don't think it's workable. [00:45:50] Speaker 04: We don't think we're in the right position to be doing that. [00:45:52] Speaker 04: We don't want to make value judgments about whether a given story is newsworthy or not, or how worthy a given plaintiff is of having a right of relief that the law affords to. [00:46:04] Speaker 04: So I think they've used language like extremely problematic, inherently unworkable, [00:46:09] Speaker 04: So even putting aside the lack of consensus, and I'd add that no federal court has announced the common law privilege that Ms. [00:46:18] Speaker 04: Harridge asked this court to. [00:46:20] Speaker 04: This court's had multiple opportunities to announce it before and has defined. [00:46:25] Speaker 04: So for all those reasons, I would argue that putting aside whether this court can enact a common law privilege, it should not for the very practical reasons given by the district court judges in this circuit. [00:46:48] Speaker 04: Give me a moment, Your Honor. [00:46:52] Speaker 04: Oh, I want to also address the point that Mr. Philbin made about Zerilli and Lee, and they have kind of this drive-by argument in their reply brief that, well, if Lee is inconsistent with Zerilli, then this court can just toss Lee out the window and ignore it. [00:47:09] Speaker 04: First of all, I don't believe that Zerilli and Lee are inconsistent. [00:47:13] Speaker 04: The Lee opinion on its face purports to be applying and reaffirming Zerilli, not in any way questioning or overruling it. [00:47:20] Speaker 04: But I also want to just direct this court to the rule from Citizens for Responsibility and Ethics in Washington v. FEC. [00:47:28] Speaker 04: It's 993 F3rd, 880, this court from 2021. [00:47:33] Speaker 04: What this court said is not only can one panel not overrule another, we're all familiar with the law of the circuit doctrine, but quote, [00:47:40] Speaker 04: When faced with a claim of conflicting precedents, we must, whenever possible, harmonize later decisions with existing authorities to avoid creating unnecessary conflicts. [00:47:50] Speaker 04: I would submit to the court that the law here is you are not too strained to find a conflict between precedents. [00:47:57] Speaker 04: I think what carriage is asking you to do would absolutely require you to do that. [00:48:02] Speaker 04: And because they really are very much in perfect harmony, there's just no need to do that. [00:48:08] Speaker 04: I see that I'm out of time, but I'm happy to address any further questions that the court has. [00:48:13] Speaker 06: OK, thank you. [00:48:28] Speaker 03: Thank you, Your Honor. [00:48:28] Speaker 03: Very briefly on rebuttal, just a few points. [00:48:30] Speaker 03: One is that I think that one thing the court pointed out in the colloquy with Mr. Phillips is really central, and that is it really was a Privacy Act case. [00:48:40] Speaker 03: It was in the context of a Privacy Act case that the court repeatedly said that an interest sufficiently compelling to overcome the First Amendment privilege is going to be rare, and the privilege has to prevail in most cases. [00:48:52] Speaker 03: In the ordinary case, the court said, [00:48:55] Speaker 03: the civil litigant's interest in disclosure must yield to the privilege. [00:48:59] Speaker 03: That applies to privacy act cases. [00:49:01] Speaker 03: And if the rule applied below, reducing it to centrality and exhaustion is the rule, then the plaintiff always gets the sources in a privacy act case eventually. [00:49:11] Speaker 03: they do enough legwork first, they always get an order disclosing the source. [00:49:16] Speaker 03: And that is incompatible with Zurilli. [00:49:18] Speaker 03: It's flatly incompatible with Zurilli. [00:49:20] Speaker 03: And that's what Judge Tatel and then Judge Garland recognized in their dissents from the denial of rehearing on Bonk and Lee, where it appeared that Lee reduced it to those factors. [00:49:30] Speaker 03: You can't reconcile that with Zurilli. [00:49:32] Speaker 06: That resonates with me in the abstract, but how do you answer your friend's point that [00:49:41] Speaker 06: Here we are 40 years later with the third case in this line. [00:49:47] Speaker 03: Well, Your Honor, I think part of what happens is that a lot of times these cases settle. [00:49:53] Speaker 03: That's what happened in Hatfield when there was another case in the district court where there was an order for disclosure. [00:49:59] Speaker 03: And the district court did not stay its own order. [00:50:01] Speaker 03: This court intervened to stay the disclosure order. [00:50:04] Speaker 03: But then the case settled. [00:50:06] Speaker 03: And in dismissing the case, the court went out of its way in the procurium opinion to note [00:50:10] Speaker 03: This case raised close First Amendment questions. [00:50:14] Speaker 03: So the court reached out to state it, and then Sue Esponte rather gratuitously pointed out that this raised serious First Amendment questions. [00:50:23] Speaker 03: And part of the reason that they come up only infrequently, Your Honor, is that [00:50:27] Speaker 03: There is a great pressure put on the media company that employs a journalist to come in and settle the privacy act case for the government to provide the deep pocket in order to protect the source. [00:50:38] Speaker 03: And the law shouldn't continue to develop that way. [00:50:40] Speaker 03: That's what happened in Hadfield. [00:50:41] Speaker 03: That's why it didn't come to this court. [00:50:44] Speaker 03: because there was a settlement, because there's so much pressure put on the media organization to protect the source, to ensure that the source won't get burned so that you won't have the effects on hobbling the ability of the press, that the cases don't get up to this court. [00:50:59] Speaker 03: And that's why it's critically important to revisit and clear up the rule in Zerill. [00:51:04] Speaker 03: And that's why Judge Tatel and then Judge Garland and the others who joined them in voting [00:51:09] Speaker 03: for the rehearing on Bonkin Lee, pointing out if you change the really this way, you're flipping at 180 degrees and saying that the plaintiff in the privacy act case is always going to get the source. [00:51:22] Speaker 03: And that doesn't make sense. [00:51:24] Speaker 03: Mr. Phillips also made some points about the difficulty in doing this balancing or considering things. [00:51:30] Speaker 03: I would just point out again, Your Honor, [00:51:31] Speaker 03: If this court says there's no balancing, all you do is centrality and exhaustion, that'll be a square-circuit conflict with Bruno and Stillman versus the Globe newspaper, where the First Circuit makes it very clear you've got to look and determine whether or not the plaintiff is going to establish a jury issue on all the elements of their case before you order forced disclosure. [00:51:52] Speaker 03: And other courts, the state courts that we've cited, other courts have relied on Zurilli across the country for this concept of balancing. [00:51:59] Speaker 03: And if this court now says, no, actually, it's not balancing. [00:52:03] Speaker 03: It's a mechanical two-factor test. [00:52:05] Speaker 03: It's going to be in conflict with all those cases that have relied on Zurilli. [00:52:09] Speaker 03: some of the state court cases we cite in our brief. [00:52:12] Speaker 03: The last point, Your Honor, very briefly, in terms of a federal common law and what is the law in the 49 states now. [00:52:22] Speaker 03: So I have a different understanding for Mr. Phillips on this. [00:52:25] Speaker 03: As we explained in our brief, in 21 states, there's an absolute privilege. [00:52:29] Speaker 03: So yeah, there's not balancing there because it's an absolute privilege. [00:52:32] Speaker 03: You never get the reporter source, at least in certain circumstances for cases that are not liable cases. [00:52:38] Speaker 03: and in 22 states and the District of Columbia where the privilege is qualified. [00:52:43] Speaker 03: then overcoming the privilege requires not just centrality and exhaustion, but showing the balance of interests. [00:52:50] Speaker 03: So that's 21 absolute, 22 qualified with balancing. [00:52:56] Speaker 03: And even Mr. Phillips mentioned Georgia as a case where he says there wouldn't be this balancing. [00:53:02] Speaker 03: In fact, the case we cite in our brief, the Atlantic Constitution Journal versus Jewel case, precisely a case about ordering disclosure of sources [00:53:11] Speaker 03: and the intermediate appellate georgia court there said very specifically you've got to look at what is the plaintiff's case going to look like even if that means looking at briefing that's like partial summary judgment that's what you have to do before you order disclosure because it would be totally irrational to burn the sources have that effect on the first amendment in the press for a case that's about to collapse okay thank you mr philbin we'll take a brief recess while the cso's [00:53:40] Speaker 06: secure the courtroom and we'll be back with you all in a closed session.