Whistleblowing in the dark

I think the Supreme Court’s ruling today against government whistleblowers — deciding that they have no First Amendment protection for their complaints if those complaints are part of their jobs — will result in more anonymous leaks of information not through the press but through the many means of anonymity that the internet provides. That is, Deep Throat would blog.

Jack Balkin and Marty Lederman each explain this decision well at Balkinization. Says Lederman:

Today, the Court took that very signifiant step, holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of “public concern” — a very significant doctrinal development.

So you won’t see people blowing the whistle through the press because the government may well take reporters to court and jail and find out their identity. As Jack explains, you won’t see them going through channels because that loses them their First Amendment protection. You won’t see them compaining publicly because they’ll lose their jobs.

Who loses? We the people, on two counts: Our government is less accountable and our First Amendment has a new boundary.

  • If a tree falls in the forest, does it make a sound? If Deep Throat blogs, and for whatever reason bigger bloggers don’t notice (the story’s too complicated, doesn’t fit our best talking points, can’t prove it’s not some wingnut just pretending to be in the loop, etc.), is that a better filter than mainstream reporting? Hard to say!

  • Thedude

    Bush fans get what they want with Alito. He cast the deciding vote. The damage to our freedom this court is going to do is chilling. Anyone left proud of W?

  • Undertoad: Good point. But remember the case of the then-anonymous Lawrence Livermore scientist who blew the whistle there (and, once the coast was clear, came out with his identity). If you know who to send it to and if they think there’s something there, what you hope for is that someone will look into it. The whistleblower doesn’t necessarilly reports the story but exposes it.

  • It is getting increasingly difficult to remain anonymous when using electronic media. Perhaps whistleblowers will have to start using old media like the US mail to alert people.

    ISP’s now keep records of traffic, phone companies know which numbers connected on both sides of a conversation, etc.
    Wiretaps allow contemporaneous monitoring and, apparently, without any warrants.

    Anyone willing to risk career and/or imprisonment could always come forward, but they still need a platform from which to make their announcement. The willingness of the press to withhold information at the request of the government may make this more difficult as well.

  • Angelos

    This government? Accountable? Since when?

    Who’s been punished for what? Well, other than those that disagreed with BushCo.

    But yeah, what Feinman said. Nothing like a package full of damning info mailed anonymously to the newspaper.

  • hey

    if you actually look at the case, the major motivating factor was that the prosecutor disclosed the memo to the defence as well as sending the memo to his bosses. As to the substance, the judges rightfully wanted to avoid delving into the business judgement of the day to day operation of the government, just as they give a (wider) immunity to regular business judgements in many aspects of corporate law for private firms.

    This is the prototypical bad case that could very, very easily have made bad law. The justices should be thanked for avoiding the easy call that would come to bite us in the ass. Much better than the people that voted for SarbOx or those that made salaries over $1M non-deductible (and thus fueled non-salary compensation like stock options).

    Jeff you really need to calm down and actually think this through!

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