Whistleblowers, journalists and the public’s right to know
There appears to be a movement towards criminalization of whistleblowers. What are the implications for whistleblowers, and the journalists who cover them?
By Cecil Rosner
Blowing the whistle on illegal or immoral behaviour has never been an easy task.
It usually results in loss of income, possible prosecution, and in extreme cases, it can be deadly. It's safe to say that a whistleblower's life is never quite the same after that fateful decision to speak out publicly.
Just ask Edward Snowden, the NSA leaker who is currently scrambling to find a country willing to protect him from prosecution in the U.S. Snowden, like Julian Assange, Bradley Manning, Jeffrey Wigand, Daniel Ellsberg and dozens of others like them, is finding out the hard way that shining a light in dark places is not always to everyone's liking.
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Journalists have a particular interest in whistleblowers, because they are often instrumental in uncovering stories of great public interest. The CBC and most other media outlets have relied repeatedly on whistleblowers to gain insight into how government, industry and other powerful interests conduct business. Sometimes those whistleblowers wish to remain anonymous, and the media does its best to protect their identities.
At other times, the identities are public from the outset, and that gives rise to another common phenomenon. Not only do the whistleblowers come under attack by the people whose secrets are being revealed, but so do the journalists who report the stories.
Glenn Greenwald, the Guardian journalist who broke the Snowden stories, has been accused in some quarters of "aiding and abetting" the former intelligence employee. Some U.S. politicians have suggested he should be prosecuted alongside Snowden. Other commentators have questioned whether Greenwald is really a reporter, suggesting he is an activist or at best a "blogger." A concerted campaign seems to be underway to spread innuendo about aspects of Greenwald's past, with the suggestion that such revelations should somehow call his journalism into question.
"When I made the choice to report aggressively on top-secret NSA programs, I knew that I would inevitably be the target of all sorts of personal attacks and smears," Greenwald wrote in the Guardian. "You don't challenge the most powerful state on earth and expect to do so without being attacked."
It is not the first time this has happened. There are many Canadian examples of reporters facing accusations of bias, lawsuits and court orders to disclose confidential source information, all because they reported on what a whistleblower had to say.
But one of the most instructive examples is that of Daniel Ellsberg, a former Pentagon and state department employee who leaked an internal government analysis of the Vietnam War called the Pentagon Papers in 1971. Ellsberg was subjected to the familiar litany of threats and smears, and U.S. intelligence officers even staged an illegal break-in at his psychiatrist's office to find material to discredit him. He was accused of theft, espionage, and endangering U.S. security interests. Sound familiar?
Ellsberg gave the papers to the New York Times, and lawyers for the Times advised against publication. But the newspaper published the story amid risks of injunctions, lawsuits and dire threats. The newspaper's right to proceed was eventually upheld by the U.S. Supreme Court. Here is what Supreme Court Justice Hugo Black said:
"Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people, and sending them off to distant lands to die of foreign fevers and foreign shot and shell. … The government's power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people."[node:ad]
Ellsberg, by the way, eventually had all charges against him dismissed. And it's difficult to find anyone today who thinks the disclosure of the Pentagon Papers was a bad idea.
Anyone who has seen the movie The Insider also knows about the case of Jeffrey Wigand, who blew the whistle on big tobacco's practice of increasing nicotine content in cigarettes. In reporting the story, CBS was also accused of aiding and abetting Wigand's purportedly illegal breach of contract, and faced the prospect of a crippling lawsuit if it proceeded.
What should Canadian journalists learn from the cases of Snowden, Ellsberg, Wigand and the journalists who covered their stories? It would be unfortunate if they concluded such coverage was somehow improper or too dangerous to risk. That attitude would not serve the cause of journalism, or the public's right to know, terribly well.
Whistleblowers who speak out must carefully assess the risks. They should know the consequences of their actions might bring job dismissal, or government persecution, or jail. Often, as Ellsberg did, they hope that public opinion will judge their act of defiance so important as to trump any contractual or legal bounds they might have overstepped.
As for the journalists who deal with these whistleblowers, they need to consider that their primary obligation is to their audiences, who are interested in the inner-workings of powerful institutions that hold sway over their lives. Even if a whistleblower is breaking a contract, or breaking a law, it need not disqualify the importance of reporting the information.
In a 2010 ruling, Supreme Court of Canada Justice Louis LeBel commented directly on this type of issue.
LeBel noted that "in order to bring to light stories of broader public importance, sources willing to act as whistleblowers and bring these stories forward may often be required to breach legal obligations in the process. History is riddled with examples. In my view, it would also be a dramatic interference with the work and operations of the news media to require a journalist, at the risk of having a publication ban imposed, to ensure that the source is not providing the information in breach of any legal obligations. A journalist is under no obligation to act as legal adviser to his or her sources of information."
Even though many levels of government around the world have enacted whistleblower protection legislation, the climate for people who are considering blowing the whistle is decidedly chilly these days. Journalists might also be thinking twice about what they can safely report.
The criminalization of whistleblowing is unlikely to result in a more open and transparent society. In the end, it's the public that is usually in the best position to judge whether we should punish or reward the people who are stepping forward to shine the light. And the only way the public can make that judgment is by being armed with all the available facts.
Originally published at CBC News' Editor's Blog