The importance of whistleblowers

It was the winter of 1777 and a small group of sailors and marines were meeting on the docked warship Warren in Providence, R.I. The objective was not revolution against British forces. It was to preserve the sense of democracy rooting itself in America. The men were discussing a naval commander, Commodore Esek Hopkins, and the part he played in the torture of captured British soldiers. As the sole commander in chief of the Continental Navy, Hopkins was a dangerous man to target. Yet, the men were disgusted by the lack of moral conduct Hopkins showed, treating prisoners “in the most inhuman and barbarous manner.” The men presented a petition to Congress requesting that Hopkins be suspended from his post. In response, Hopkins filed a libel suit and two of the men were arrested and jailed. The injustice of this arrest was obvious to Congress. The first law to protect whistleblowers was adopted promptly in response to the libel charges. The law stated, “That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or person in the service of these states, which may come to their knowledge.”Thus, whistleblowers — concerned citizens who report incriminating information regarding a governmental institution or company — became an acknowledged asset to American democracy. Since then, Congress has passed laws with greater power and scope than the original. But governmental recognition of whistleblowers as beneficial to our system of government is diminishing with the recent Supreme Court decision in Schindler Elevator Corp. v. United States, demonstrating the lack of governmental support. The case was brought by a former employee of the Schindler Elevator Corporation claiming it did not follow federal contracting rules regarding the employment of veterans. Part of the prosecution’s case was based on information obtained through a Freedom of Information request to the Department of Labor. The False Claims Act allows a citizen to bring antifraud lawsuits on behalf of the government. But this law also states that a suit cannot be filed if the allegations are made based on “publicly disclosed information” such as a government report. The court decided 5-3 in favor of the Schindler Elevator Corp. Justice Clarence Thomas, writing for the majority, used Webster’s Third New International Dictionary to define a report as “something that gives information,” thereby placing a “broad scope” (in his own words) on the exception to the False Claims Act, defining it to mean anything attained through a Freedom of Information request.To those who see whistle-blowing to be an essential component of democracy, this ruling is frightening. Defining “publicly disclosed information” as anything obtained though a Freedom of Information request means many lawsuits will fail the False Claim’s Act’s test and whistleblowers, hoping to expose fraudulent practices, will be without protection or support to report abuses.In her dissenting opinion, Justice Ruth Bader Ginsburg argued that “publicly disclosed information” should not be that broadly defined. It should be reviewed to determine for the nature of the document. She also stated that, since the government typically hands over copies of records without analyzing the information, only a small amount would qualify as a report. The False Claims Act is a step forward for whistleblowers, providing support from the federal government in exposing unfair practices and fraud. This ruling is a step back. Since our country’s beginnings, the mentality of whistleblowers, that wrongdoing should be exposed without considering the consequences of doing so, has been interwoven into our idea of democracy and equality. Today more than ever the government is making this challenging and dangerous task even more difficult for those brave enough to consider it. The democracy the men aboard the warship Warren represented in 1777 is still alive today in many people, as is the secrecy they had to employ. This ought not to be the case. Years of legislation have attempted to pave the way for whistleblowers in our country, and it is a disgrace to see it degenerate.Sage Hahn is a recent graduate, with high honors, of Northwestern Regional High School in Winsted. She is attending Bennington College in Vermont in the fall. She has worked as an intern in the Office of the Community Lawyer for the past three years.