Law shouldl protect reporters' sources.

Byline: GUEST VIEWPOINT By Kyu Ho Youm For The Register-Guard

What makes our country exceptional in the world?

Some might say: "Freedom of speech and the press. We enjoy more freedom than anybody else."But that answer is not entirely correct.

In its freedom of the press as a journalistic right, our country is not as exceptional as you think. Under our Constitution, there is no such thing as a reporter's right to protect confidential sources. Nor do we have a national shield law for journalists.

By contrast, an increasing number of countries safeguard reporters from being compelled to disclose their sources. Nearly a dozen countries, including Sweden and Brazil, guarantee the reporter's privilege as a constitutional right. France, Japan and many other nations shield journalists'sources by law or as a result of court decisions.

Protection of journalistic sources is accepted as a human right. The European Court of Human Rights has declared that without such protection, news sources may be afraid to assist the press in informing people about matters of public interest.

In embracing the journalistic privilege in 2002 partly on the basis of U.S. law, the International Criminal Court for the former Yugoslavia in The Hague stated that war correspondents'vigorous reporting helps citizens gain as much, if not more, as reporters do from access to vital information from war zones.

Why does our country, "the land of the free,"lag behind many democratic allies in protecting reporters'sources? This and related questions will be discussed by judges, legal scholars, journalists and media ethics specialists on Friday at a day-long conference at the University of Oregon Law School.

The conference, "Confidential Sources: What Does Branzburg Mean Now?"marks the 35th anniversary of the landmark U.S. Supreme Court decision, Branzburg vs. Hayes. The court held in 1972 that journalists have no constitutional right to withhold information about their sources from a grand jury.

The First Amendment conference of the UO School of Journalism and Communication and the UO Law School could not be more timely and relevant to our ongoing debate about a federal law for protection of news sources. Congress is currently considering bills that for the first time would allow reporters limited privilege as a right under federal law. In early August, the House Judiciary Committee approved the Free Flow of Information Act of 2007. A companion bill is awaiting the Senate Judiciary Committee's vote.

Passage of a federal shield law would provide a uniform rule for journalists in the Internet era, when news reporting transcends state borders. It is true that nearly all the states and the District of Columbia recognize the reporter's privilege, either by statute or as a result of judicial decisions. Oregon's "absolute"shield law is more media-friendly than any other state law. But state shield laws, whether absolute or not, are rarely useful when federal courts address claims of reporter's privilege.

How to define a "journalist"under a federal shield law would challenge Congress. Should a blogger or "video activist"such asJosh Wolf be treated as a journalist, and thus protected by the federal law? (Wolf was jailed from Aug. 1, 2006, to April 3, 2007, for disobeying a federal grand jury's subpoena in connection with his videotape of a violent protest in 2005.) As the Supreme Court in Branzburg noted, judges would have difficulty determining who would deserve protection under the reporter's privilege.

Nonetheless, the seemingly thorny question of who is a reporter should not obscure the big picture of what underlies the reporter's privilege. The reporter's privilege is not necessarily for the news media as an institution. It is for everyone, in that it promotes the public's right to know. So it is heartening that the Senate bill opts for the functional definition of a journalist that would cover anyone who collects and disseminates information of public interest, including bloggers.

Meanwhile, let's be realistic: Our ongoing debate about a federal shield law will not answer myriad complex issues of the reporter's privilege. But we ought to revisit the Supreme Court's ill-advised flat rejection in Branzburg of the journalistic privilege. Indeed, foreign and international law shows that freedom of the press is no longer a one-way trade from us to the rest of the world.

Most important, the wider acceptance of source protection as a journalistic right outside U.S. borders showcases an intriguing irony in the U.S. vs. international law. Our law on the reporter's privilege helps expand press freedom abroad, but we are surprisingly niggardly in extending the privilege to our own press.

Not surprisingly, our often hallowed constitutional right of press freedom is not as exceptionally broad as we assume.

Kyu Ho Youm holds the Jonathan Marshall First Amendment chair at the University of Oregon School of Journalism and Communication.