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Whistleblowers Contacting the Media

The First Amendment protects both individual free speech and the free press, among other valued liberties. Sometimes they come into conflict. On the one hand, the press (including broadcast media) disseminates information. Whether conveying the agency line of a press release or investigating and exposing scandals--that function remains crucial in any democratic society. The media can also trample on individuals' privacy and reputations. The recent Joseph Wilson/Robert Novak scandal (a journalist identifying a dissenter's wife as a CIA operative) highlights this issue. Media figures can seek to promote a political agenda (including contrary to a whistleblower's interest), personal publicity, or advertising sales. Remember, constitutional due process applies limits only to governmental officials (including the courts), not the press.

A First Amendment Shield?

The First Amendment shield for the press is considerably stronger than for people who talk to the media. It is not absolute--courts have often excluded the media or forbidden media contacts to protect the fairness of a trial. One Supreme Court case, Givhan v. Western Consolidated School District, says that internal whistleblowing (reporting up the chain of command), is protected by the First Amendment.

The box at the left lists Supreme Court cases discussing First Amendment rights and government employee speech. Their bottom line is uncertainty. While reporters may trumpet the "public's right to know," courts protect many government secrets--from intelligence data to confidential law enforcement information to proprietary contract bids. A WWII jingle summarized the reason: loose lips sink ships. Revealing certain confidences may constitute treason, theft of government property or other criminal offenses. Of course, this uncertainty chills internal reporting, rather than providing guidance to government employees who see fellow employees giving valuable non-public information to illegally favored friends, or otherwise violating their ethical obligations. Balancing duties and fears becomes the whistleblower's conundrum.

Even outside the national security/criminal context, media-based (a/k/a external) whistleblowing involves complex tradeoffs. Because agencies invariably have press offices and other bureaucratic means of distributing their views, outside media contacts often violate numerous agency policies. Unauthorized news stories generate the most controversy within an agency, and thus the most extreme responses against employees suspected of embarrassing leaks. Oftentimes source identities can be guessed (not always correctly--remember Deep Throat) from the news story or other publication. This defeats confidentiality and throws talkative (as well as unfairly targeted) employees into Working Inside the System.

Press investigations

Did the Watergate scandal three decades ago show that our Constitutional system worked (from the judicial cases to legislative and executive investigations)? Or did the press "break" the story and dethrone President Nixon? Openness in judicial and legislative proceedings, and publicity combined in the short run to inspire government investigators and sway reluctant witnesses. However, Watergate's long run legacy may well not be legislation protecting whistleblowers, but rather reluctance to report.

Fears of intrusive reporters once a scandal begins (or even a media frenzy) may discourage even internal reports to law enforcement. Few today consider Watergate's convict-whistleblowers heroes to emulate, yet at least they eventually received fair trials. Many caught in the "court of public opinion" do not, like the Wilson family. Scandal mongering is not new--the old name, muckraking, hints its effects on the embroiled or accused.

Because newsworthiness is often fleeting, reporters cultivate sources within agencies, Congress and non-governmental organizations, as well as assign reporters to courthouse beats. Whistleblowers and their attorneys are potential media tipsters, as are the managers and press officers involved. Confidentiality promises are common among government investigators as well as media representatives--which actually mean something is another matter.

Self-proclaimed whistleblower organizations trumpet the media route and may well screen cases they accept through this lens. Because their resources are limited and top level scandals remain rare, such advocacy can operate to the detriment of ordinary internal whistleblowers. Most government waste and mismanagement is considerably less titillating than a sex scandal or the latest murder or tragedy. Advocates might well not be interested in garden-level internal whistleblowing: few reporters will investigate and of those, most will run (remain neutral) if retaliation begins. Still, news coverage may generate change.

Contents




Select Supreme Court Cases Concerning Employees' First Amendment Rights
Pickering v. Board of Education, 391 U.S. 563 (1968)
Arnett v. Kennedy, 416 U.S. 134 (1974)
Mt. Healthy City Board of Education v. Doyle, 429 U.S. 410 (1977)
Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979)
Snepp v. U.S., 444 U.S. 507 (1980)
Connick v. Myers, 461 U.S. 138 (1983)
Bush v. Lucas, 462 U.S. 367 (1983)
Rankin v. McPherson, 483 U.S. 378 (1987)
Waters v. Churchill, 511 U. S. 661 (1994)


First Amendment Cyber-Tribune
w3.trib.com/FACT/
(summaries of recent First Amendment cases)

Media ethics

http://www.poynter.org

(especially columns 4349, 4346, 4352)


The advocacy perspective
(favoring consideration of press coverage rather than internal whistleblowing)
http://www.tidalwave.net/~helpline/steps10.html


Government Accountability Project,The Whistleblower's Survival Guide: Courage without Martyrdom (GAP, 1997).
www.whistleblower.org.
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