Imprisoned journalists in Cuba . . . and the United State

The Miami Herald
Posted on Wed, Sep. 14, 2005
good yardstick for evaluating a country's freedom of speech is the presence of journalists in jail as a result of their work. When press freedom around the globe is analyzed from this vantage point, it is possible -- at first glance -- to conclude that this freedom has fared much better in the Americas than in other hemispheres.
Reports issued by many nongovernmental organizations show that a number of high-profile journalists languish in detention in some countries of Africa and Asia. Yet in the Americas there have been only isolated cases of journalists going to jail since the end of the region's dictatorships. In this hemisphere, however, there are many laws that could be used to threaten journalists, and some of these laws are in fact used for such an end. Public officials often use the phrase, ''If you say this or that, you can be put in jail.'' Still, there are only two countries in our hemisphere where journalists are now in prison. One is Cuba. The other is the United States of America.
It is difficult to understand how these two very different countries came to share this sad situation. Freedom of the press is a fundamental component of any democratic regime and Cuba is not a democracy. Cuba does not have independent judges, so the decisions of the judiciary follow the wishes of the totalitarian regime. Since its creation, the Office of the Special Rapporteur for Freedom of Expression at the Organization of American States has highlighted that Cuba is the only country of the hemisphere in which one can state categorically that there is no freedom of expression.
Evidently the United States is on the other side of the political spectrum. The country has a long tradition of democratic elections, an independent judiciary and a uniquely strong constitutional commitment to freedom of speech. It is perhaps for these reasons that the rest of the Americas has viewed the incarceration of The New York Times journalist Judith Miller, now in prison for more than two months because of her refusal to reveal confidential sources, with particular concern and alarm.
While it is easy to explain why an independent journalist could end his or her days in jail under a totalitarian regime, it is hard to see how the same could happen to a journalist in a democratic regime -- where freedom of expression is a cornerstone value -- simply because of his or her work.
At the same time, the significant differences between Cuba and the United States have led to very different government responses. Since 2003, Cuba has been increasing its efforts to block any possibility of an independent press within its borders: Not one, but many journalists are in jail in Cuba, and the government is tightening its position against the independent media. In the United States, meanwhile, legislators from both parties -- including Sens. Richard Lugar, R-Ind., Christopher Dodd, D-Conn., and Rep. Mike Pence, R-Ind. -- are pushing for a law to protect journalists' sources. This law could be used to reverse Miller's imprisonment and decrease the ''chilling effect'' on investigative and independent journalism created by this case.
In a democratic system, people can -- and should -- raise their voices to call on democratic institutions to correct deviations that might undermine democracy. But the presence of even one journalist in jail because of what he or she does is always bad news, whether it occurs in a society with a firmly rooted democracy or in one that is still striving to be free.
Don't abandon hope
In the United States, we should follow cases such as Miller's from the hopeful perspective that the country will not abandon its long tradition of protecting a broad range of freedom of expression and the press.
In Cuba, we should not abandon the hope that, sooner or later, the country will join the group of democratic countries in the Americas, and freedom of expression and the press will flourish for the benefit of Cuban society.


Press freedoms are under attack

The Miami Herald
Posted on Thu, Mar. 03, 2005

On Feb. 15, three judges of the U.S. Court of Appeals in Washington, D.C., upheld a trial-court decision that found two journalists in contempt of court last year. With this ruling, the journalists risk going to jail if they refuse to respond to questions before a grand jury in an investigation of a leak of a covert CIA officer's identity. The questions could be related to the confidential sources of information of the journalists.
News of the ruling quickly spread in the newsrooms of many media around the world. The possible incarceration of journalists because they decided to maintain the confidentiality of their sources is something that always concerns investigative journalists; however, this is a problem not only for journalists but also for society as a whole.
Last year, in relation to the case of Rhode Island TV newsman Jim Taricani, which involves a similar problem, my office publicly stated that the main foundation of the right to confidentiality is that within the scope of their work, and in order to provide the public with the information needed to satisfy the right to information, journalists are performing an important public service when collecting and disseminating information that would not be divulged were the confidentiality of sources not protected.
This right to confidentiality involves providing legal guarantees to sources to ensure their anonymity and to avoid possible reprisals against them for divulging certain information to the press. Confidentiality, therefore, is essential to journalists' work and to the role that society has conferred upon them to report on matters of public interest.
Unfortunately, the risk of going to jail for refusing to provide the identity of sources of information is a risk that many journalists have been facing not only in the United States but also in other countries in recent years. From time to time, judges or prosecutors elsewhere make rulings similar to the Feb. 15 ruling. But those decisions do not always have the same impact on the media around the world as those made by U.S. courts. Why?
The answer may lie in the American tradition of protecting freedom of expression through judicial decisions. The United States historically has taken a broad view on the right to freedom of expression, particularly during the Supreme Court's Warren era in the 1960s, when the right was given its most expansive interpretation. So any ruling by a U.S. court that could undermine that strong tradition, like the aforementioned ruling by the court of appeals, is received with alarm by scholars, journalists and others who have learned about freedom-of-speech protection through judicial decisions written by the U.S. Supreme Court.
As many international human-rights bodies, such as the European Court of Human Rights and the Inter-American Commission on Human Rights, have stated, freedom of expression is understood to encompass journalists' right to keep their sources confidential. Weakening that right in any country raises concerns because of the consequences for freedom of expression.
But a U.S. court decision in that direction has a particular impact on those around the world who have seen the decisions in this country as important precedents that should be followed by other countries. For this reason, for the impact here and abroad, it is worth continuing to look closely at these issues with the hope that the United States will not abandon its historical practice of protecting wide-ranging freedom of expression.
Eduardo Bertoni is the special rapporteur for freedom of expression, Inter American Commission on Human Rights, Organization of American States.