Freelance videographer Josh Wolf languished in jail for 225 days in 2006-07. New York Times reporter Judith Miller spent more than 85 days in prison in 2005. Television reporter Jim Taricani served four months in home confinement in 2004-05 for his six-month sentence. Author and college lecturer Vanessa Leggett was jailed for 168 days in 2001-02.
What put them all in jail? Refusing to identify their sources in violation of subpoenas.
Is it really possible that journalists are jailed or sentenced to jail in the United States, the widely touted beacon of free speech in the world? Yes, more often than ever.
The sobering reality-check on the freedom of American press with little protection of news sources will be the focus of a day-long conference at the UO School of Law on Friday. The conference, “Confidential Sources: What does Branzburg Mean Now?,” will assess the impact of the landmark U.S. Supreme Court’s case, Branzburg v. Hayes (1972). In Branzburg, the Court refused to recognize a reporter’s privilege under the First Amendment.
The conference features four panels of judges, journalists, legal scholars, and journalism ethics specialists from the United States and abroad. Among the speakers will be Judge O-Gon Kwon of the International Criminal Court for the former Yugoslavia in The Hague, and Judge Robert Lasnik of the U.S. District Court in Seattle. University of Pennsylvania Law Professor Edwin Baker, a leading First Amendment scholar, will deliver the keynote speech, “Branzburg and the Independent Meaning of the Press Clause.”
The joint conference of the UO School of Journalism and Communication and the UO School of Law is tied in with the unending debate over whether Congress should pass a federal shield law. The House Judiciary Committee in August approved the Free Flow of Information Act of 2007. The Senate Judiciary Committee considers voting on a similar bill.
For the past 35 years, Congress has not followed up on the Branzburg Court’s invitation to adopt a statutory reporter’s privilege, while more than a dozen states – including Oregon – have passed shield laws. Presently, 33 states and the District of Columbia recognize the reporter’s privilege by statute. Sixteen states with no shield law provide journalists protection of their sources by court decisions.
As the American Civil Liberties Union noted in its 2007 “Publish and Perish” report, however, the lack of a national journalist’s privilege has resulted in “a hodge-podge of federal protection that undermines even the strongest state reporters’ shield laws.”
At the UO media law conference, Judge David Schuman of the Oregon Court of Appeals will examine how absolute Oregon’s “absolute” media shield law is. U.S. District Court Judge Lasnik will place the reporter’s privilege in a federal law context.
Without a doubt, the Branzburg conference will hardly resonate with the public if it is disconnected from real-life journalism. The journalists’ round table discussion will enable Oregon journalists to answer what the reporter’s privilege – or lack thereof – entails for their profession and for the public as well.
While the reporter’s privilege is more often considered a legal matter, it is also an ethical issue. Indeed, there is a high-level agreement among journalists around the world about “a near universal professional norm of protecting confidential sources.” So, it is a transcultural journalistic value not to reveal confidential sources. Three media ethicists on Friday afternoon will approach non-disclosure of news sources from an ethical standpoint.
Over the years, meanwhile, the reporter’s privilege has been increasingly recognized in international and foreign law – far more extensively than we might assume. The European Convention on Human Rights offers broad protection to journalistic sources. The U.N. war crimes court in The Hague refused to compel war correspondents to testify in 2002, when former Washington Post correspondent Jonathan Randal asserted his reporter’s privilege. ICTY Judge Kwon will elaborate on the seminal Randal case.
More countries find the reporter’s privilege essential to a meaningful exercise of press freedom. For an example, take Sweden. The Swedish Constitution criminalizes disclosure of a news source without the source’s permission.
Sweden and other countries’ experience with the reporter’s privilege should lead us to wonder if our nation practices what it preaches to others. Few of us would quibble about Sen. Richard Lugar’s remark in 2005: “If the United States is to foster the spread of freedom and democracy around the world, it is incumbent that we support an open and free press to help build democracies and protect human rights.”
The Branzburg conference on Friday will help us reexamine our commitment to a free press at home and abroad. It should truly force us to “imagine the past and remember the future.”
Kyu Ho Youm is professor and the Jonathan Marshall First Amendment chair at the University of Oregon School of Journalism and Communication