Sunday Read: Whistleblowers and the Media — What You Need to Know
The news media plays an essential role in safeguarding our democracy and can be a critical catalyst for spurring government action. Whether due to a lack of resources, bureaucratic constraints, or politics, the federal government is not always able to address whistleblower concerns. In these instances, the media can foster public scrutiny and galvanize support, urging much needed government action.
This is why the news media is frequently referred to as the “Fourth Estate” in American politics, wielding significant influence over the actions of both the government and its regulators.
Without adequate information in the public about reporting, whistleblowers turn to the media to expose public and private corruption, fraud, and other forms of wrongdoing. Many times, this is done at the whistleblower’s risk and without meaningful legal protections.
In this Sunday Reading, we will look at some of the ways whistleblowers have effectively raised awareness through the media.
The whistleblower provisions of various federal laws such as the False Claims Act, the Internal Revenue Code, the Securities Exchange Act, and the Commodities Exchange Act prohibit employers from retaliating against employees who engage in “protected activity.” The quintessential forms of protected activity typically involve reporting misconduct to a supervisor or to a law enforcement agency. Though courts have held that media communication is a protected activity, it can be confusing for whistleblowers to figure out exactly what media disclosures are protected.
In the famous whistleblower case Pickering v. Board of Education, the Supreme Court held that the First Amendment protected a schoolteacher who wrote a letter to the editor of his local newspaper criticizing the school board.
Another notable case involved Maj. Michael Andrew who served thirty-one years as a member of the Baltimore Police Department. After witnessing police use deadly force against a man barricaded in his apartment, Maj. Andrew wrote an internal memorandum expressing concerns over the misuse of force. When upper management tried to cover up the potential misconduct surrounding the killing, Maj. Andrew took his concerns to the Baltimore Sun, and was subsequently fired.
The district court held that the disclosure of the memorandum was not protected and upheld Maj. Andrew’s termination. However, the U.S. Court of Appeals for the Fourth Circuit disagreed. As Judge J. Harvie Wilkinson wrote in his concurring opinion, to “throw out” a case because an employee “took his concerns to the press” would have “profound adverse effects on accountability in government.” He added, “It is vital to the health of our polity that the functioning of the ever more complex and powerful machinery of government not become democracy’s dark lagoon.”
Other instances of whistleblowers resorting to the media to expose wrongdoing abound. When employees at the failed blood testing startup Theranos learned that blood testing devices were failing to live up to the company’s public statements, they reported their findings to senior company officials, and were silenced. These whistleblowers then decided to take their concerns to the Wall Street Journal, culminating in a groundbreaking story that precipitated the company’s downfall and the indictment of senior executives.
And when former Facebook product manager Frances Haugen learned that the company was causing substantial harm to its users and misleading investors, she shared thousands of internal documents with the Wall Street Journal, in addition to the SEC, detailing pervasive wrongdoing within the company.
Despite these high-profile cases, going to the media can have significant pitfalls, and potential whistleblowers should use extreme caution. For one, not all disclosures to the media are protected. Public sector employees can be criminally prosecuted for publishing confidential government information. While private sector employees are free to share information with the government, they may still be sued by their employer if they disclose company trade secrets to the press.
Additionally, to be eligible for an award under many whistleblower statutes, the whistleblower must be the “original source” of the information concerning the alleged wrongdoing. If a whistleblower goes to the news media before reporting to the government or before filing a claim in court, they are disqualified as an original source.
Lastly, many whistleblower laws require government agencies to protect the confidentiality of whistleblowers who report wrongdoing. Journalists, on the other hand, have no such legal requirement, and if a whistleblower’s identity becomes public there could be significant legal, professional, and reputational consequences.
It is for this reason that potential whistleblowers would be well-advised to consult with an experienced whistleblower attorney before taking any further action.