Where the World's Views of America Come into Focus
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Where the World's Views of America Come into Focus
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By Danilo Arbilla 
October 12, 2005
The case of Judith Miller, The New York Times journalist who was imprisoned for refusing to reveal her sources of information, puts on the table a subject that has yet to be sufficiently debated.
It concerns nothing less than the freedom of expression - perhaps the most important of all civil liberties and, without doubt, the guardian of all other freedoms - and the right of each person to seek, receive and diffuse information.
This liberty guarantees freedom of the press, the free exercise of the media and, fundamentally, the right of the people to know about issues that affect the democratic system and what their elected representatives and public officials are up to.
The protection of sources - whether they are informants or people unable to reveal how they obtained certain information - is a tool for the fulfillment of these objectives.
A journalist uses this tool to disseminate information of extreme interest to society and to protect a source that, if identified, would be exposed to retaliation or in the future be limited in his or her ability to provide new information or expand upon what has already been revealed.
A journalist assumes this commitment - to protect the identity of a source - for the sake of obtaining information and disseminating it so that citizens can understand what’s going on.
The professional journalist, as a consequence, is obligated not to reveal his or her sources, even if that means going to prison. These are the risks of the profession. This is an ethical question par excellence, and to violate this code of conduct would be, above all, to discredit yourself as a journalist.
Does imprisoning someone who defends these ethical rules, accusing them of concealment or obstruction, constitute an attack or limitation on the freedom of expression?
At first glance one might say no; this neither prevents anyone from obtaining information, nor does it hinder its diffusion so that people can find out.
Nevertheless, this question presupposes an increased risk and the threat of legal retaliation for journalists who fulfill their professional responsibilities, and definitively conditions him and his colleagues. In addition, imprisoning the aforesaid journalist interrupts the flow of information that is his or her responsibility.
What then, is the solution, so that the sword of justice does not damage the people’s right to know? It would seem best for the public interest to nullify and even justify any fault on the part of the journalist. That is, if something is of benefit to society - to each and every citizen - then this should exonerate the journalist of any wrongdoing.
There has been much jurisprudence on this matter. In many countries, judges have opted for this solution, similar to what is already called for under laws regarding defamation: punishment yields before a superior good.
This formula has a side benefit in that it forces journalists to think very seriously about sources of information that request anonymity, to avoid being used by those seeking to manipulate them or to dispel the temptation to act with negligence and contempt for the truth.
But not all judges rule in this manner. This has required, in many countries, laws guaranteeing the right of journalists not to reveal their sources and in some cases, even establishing sanctions for those that do reveal them.
With these rules, doubtless, the flow of information is enhanced. But this also has a downside: if an idea becomes a legal requirement, it ceases to be an ethical imperative.
If protecting a source's confidentiality is a legal requirement, this also implies, for example, that judges have the ability to release the journalist of his obligation to keep the secret. Thus, the entire arrangement is undermined because the professional could no longer guarantee anonymity to his sources.