Whistleblowers and the Law

Most of the fields of law in which we are trained begin with an agreed ethical principle and the law develops from there. So contract law begins with the principle that we should keep our promises. Tort law begins with the idea that we should not do harm to our fellowman. Fiduciary law begins with the idea that we should not betray a trust. But the law governing whistleblowing begins with a confused set of contradictory principles: notions of loyalty, obedience, autonomy, integrity, transparency and secrecy, and privacy all conflict with each other and with competing notions of the legitimate role of a government that wants to be “of the people, by the people and for the people.”

This course will survey the principles underlying whistleblower law, and the various components of that law. It will begin by asking what a whistleblower is and by distinguishing whistleblowing from spying, stealing, and mere gossiping. It will then conduct a brief review of the history of the competing elements of the law: whistleblower protection statutes (both federal and state-based, affecting both private and government employees); and the competing statutes which are designed to protect secrets and to impose penalties on people who betray those secrets. It will ask whether there is such a thing as a “common law” of whistleblowing, or whether we must resign ourselves to the clumsy efforts to legislate which seem to dominate this area of the law today. And of course, it will dive into the relationship of whistleblowing to the First Amendment and to the law as it affects journalists (both full-time journalists and new age journalists).