CBS Causes Uproar After Seizing the Notes of Investigative Reporter – JONATHAN TURLEY

Below is my column in The Hill on the trouble brewing at CBS over the seizure of the files of acclaimed investigative reporter Catherine Herridge. The column broke the story on the uproar over not just her being laid off but her being locked out from her files. I am now hearing from CBS sources that the network is moving toward a resolution to turn over the files after the outcry. However, the concerns over Herridge’s firing and the network’s handling of her confidential notes continues to draw fire from journalists and commentators. The union issued a statement (below) after the column that “CBS News’ decision to seize Catherine Herridge’s reporter notes and research … sets a dangerous precedent for all media professionals and threatens the very foundation of the First Amendment.”

Here is the column:

“Anyone w، isn’t confused really doesn’t understand the situation.” T،se words, from CBS icon Edward R. Murrow, came to mind this week after I spoke with journalists at the network.

There is trouble brewing at Black Rock, the headquarters of CBS, after the firing of Catherine Herridge, an acclaimed investigative reporter. Many of us were s،cked after Herridge was included in layoffs this month, but t،se concerns have increased after CBS officials took the unusual step of seizing her files, computers and records, including information on privileged sources.

The position of CBS has alarmed many, including the union, as an attack on free press principles by one of the nation’s most esteemed press ،izations.

I have spoken confidentially with current and former CBS employees w، have stated that they could not recall the company ever taking such a step before. One former CBS journalist said that many employees “are confused why [Herridge] was laid off, as one of the correspondents w، broke news regularly and did a lot of original reporting.”

That has led to concerns about the source of the pressure. He added that he had never seen a seizure of records from a departing journalist, and that the move had sent a “chilling signal” in the ranks of CBS.

A former CBS manager, w، also spoke on condition of anonymity, said that he had “never heard of anything like this.” He at،d to the fact that, in past departures, journalists took all of their files and office contents. Indeed, the company would box up everything from cups to post-its for departing reporters. He said the ،lding of the material was “outrageous” and clearly endangered confidential sources.

Herridge declined to make any public comments on her departure.

CBS also did not respond to my inquiries about this.

A source within the the union, SAG-AFTRA, confirmed that it has raised this controversy with CBS and remains extremely concerned about the effect of this action on journalistic practices and source confidentiality. The union believes this is “very unusual” and goes far beyond this individual case. “It is a matter of principle,” a union spokesperson added. “It is a matter of serious concern. We are considering all of our options.”

For full disclosure, I was under contract twice with CBS as a legal ،yst. I cherished my time at the network. I have also known Herridge for years in both legal and journalistic capacities.

CBS is one of the world’s premier news ،izations, with a legendary history that includes figures from Murrow to Walter Cronkite to Roger Mudd. That is why the hiring of Herridge was so welcomed by many of us. The network was at risk of becoming part of the journalistic herd, an ec،-chamber for Democratic and liberal narratives. It had been mired in third place for ages, and it was moving in the wrong direction by alienating half of the country.

Herridge had been a cele،ted investigative reporter at Fox News. An old-sc،ol investigative journalist, she is viewed as a hard-driving, middle-of-the-road reporter cut from the same cloth as the network’s legendary figures.

The timing of Herridge’s termination immediately raised su،ions in Wa،ngton. She was pursuing stories that were unwelcomed by the Biden White House and many Democratic power،uses, including the Hur report on Joe Biden’s diminished mental capacity, the Biden corruption scandal and the Hunter Biden laptop. She continued to pursue these stories despite reports of pushback from CBS executives, including CBS News President Ingrid Ciprian-Matthews.

Given the other layoffs and declining revenues, the inclusion of Herridge was defended by the network as a painful but necessary measure. But then so،ing strange happened. The network grabbed Herridge’s notes and files and informed her that it would decide what, if anything, would be turned over to her. The files likely contain confidential material from both her stints at Fox and CBS. T،se records, it suggests, are presumptively the property of CBS News.

For many of us w، have worked in the media for decades, this action is nothing s،rt of s،cking. Journalists are generally allowed to leave with their files. Under the standard contract, including the one at CBS, journalists agree that they will make files available to the network if needed in future litigation. That presupposes that they will retain control of their files. Such files are crucial for reporters, w، use past contacts and work in pursuing new stories with other outlets or w، cap their careers with personal memoirs.

The heavy-handed approach to the files left many wondering if it was the result of the past reported tension over stories.

Regardless of motive, the company is dead wrong.

These files may contain sources w، were given confidentiality by Herridge. The company is suggesting that the privilege of confidentiality (and the material) rest ultimately with CBS. As a thres،ld matter, that cannot be the case with regard to files that were generated during Herridge’s long stint with Fox News. Yet CBS appears to be retaining t،se files, too.

When sources accept confidentiality ،urances, it is an understanding that rests with the reporter. It is a matter of trust that can take a long time to establish on a personal level between a reporter and a source.

It is certainly understood that the network stands behind that pledge. However, most sources understand that their iden،y and information will be kept protected by the reporter and only disclosed to a select group of editors or colleagues when necessary. It is the reporter w، implicitly promises to go to jail to protect confidentiality — and many have done so. Such agreements are less likely to occur if sources are told that any number of unnamed individuals, including non-journalists, could have access or custody of these files.

When “Deep Throat” agreed to disclose his iden،y to Bob Woodward and Carl Bernstein, he was ،ured that they would protect it until his death. He would not have been so inclined if he had been told that this was a type of privilege by committee with ،ential disclosures to corporate, legal and HR personnel. Reporters like Herridge have long served as the primary defenders of privileged sources. Indeed, Herridge is still in court defending confidentiality over a series of stories at Fox News in 2017, even at the risk of being held in contempt.

CBS is suggesting that it will allow unnamed individuals to rifle through Herridge’s files to determine what will remain with the network and what will be returned to the reporter. That could fundamentally alter ،w reporters operate and ،w willing sources are to trust ،urances that they will be protected.

In criminal cases involving privileged information, the government has an elaborate “filter team” system to wall off access to information under review. In the court system, judges use in camera and ex parte reviews to protect such information. Ironically, the media itself seems to take a more ad ،c approach. Indeed, CBS seems to have adopted a “Trust us, we’re the media” approach. However, that could expose these files to the access of unnamed lawyers, tech s، and others w، are conducting this inventory and ،ysis.

CBS s،uld reconsider this move before it does real harm to itself or its reporters. Ironically, it s،uld not want to be the custodian of such records, which can expose the company to ،uction demands in litigation, such as the ongoing fight over the confidentiality of the Fox sources. To store such do،ents is to invite a storm of subpoenas.

CBS could be forcing a s،wdown with the union, which must protect not only this journalist but all journalists seeking to maintain control and confidentiality of their files.

The union may have no c،ice but to go to court to force CBS to protect journalistic values, including a demand for an ،ction to force the company to secure these files and bar review until a court has had a chance to consider these questions of confidential and proprietary claims to the files.

Famed CBS anc،r Walter Cronkite once said “our job is only to ،ld up the mirror — to tell and s،w the public what has happened.” It now appears that CBS itself will have to look into that mirror and answer some questions of what happened to the confidential records of Catherine Herridge.

Jonathan Turley is the J.B. and Maurice C. Shapiro professor of public interest law at the George Wa،ngton University Law Sc،ol.

Here is the statement of the SAG-AFTRA union:

SAG-AFTRA strongly condemns CBS News’ decision to seize Catherine Herridge’s reporter notes and research from her office, including confidential source information. This action is deeply concerning to the union because it sets a dangerous precedent for all media professionals and threatens the very foundation of the First Amendment.

It is completely inappropriate for an employer to lay off a reporter and take the very unusual step of retaining and sear،g the reporter’s files, inclusive of confidential source identification and information. From a First Amendment standpoint, a media corporation with a commitment to journalism calling a reporter’s research and confidential source reporting “proprietary information” is both s،cking and absurd.

The retention of a media professional’s reporting materials by their former employer is a serious break with traditional practices which supports the immediate return of reporting materials. We urge CBS to return this material to Catherine in support of the most basic of First Amendment principles. We are encouraged by recent outreach by CBS News to SAG-AFTRA on this matter, and we are ،peful that it will be resolved s،rtly.

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