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.
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.
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
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
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.
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
(summaries of recent First Amendment
(especially columns 4349, 4346, 4352)