Impact of the Press in Whistleblower Cases

Whistleblowers quite naturally want to cooperate with the press. Indeed, there are some people who believe that the First Amendment rights enshrined in the Constitution are in fact the original basis for, if not, the altogether original whistleblower law in the land. It is therefore quite natural to think that important allegations of wrongdoing are appropriate to bring to the press, so the press can publicize these issues and achieve some level of justice on behalf of whistleblowers.

However, the impact of going to the press on whistleblower’s case is not always a positive one. In reality, it can weaken your case and even impact your protections as a relator. If you want to know more about involving the press in whistleblower cases, consult a determined whistleblower lawyer in DC.

Impact of Press on Public Opinion of Whistleblowers

Whistleblowers are a great source of information to the press and to the public, and whistleblowing has become a more accepted practice in the public eye because of the public depiction of whistleblowers as fighting fraud and wrongdoing. In fact one of the benefits of whistleblowers talking to the press about their case is that the press, in turn, can shine a light on the good that whistleblowers do.

In that sense, the publicity that whistleblowers have gotten over the past five to ten years has been helpful. The public depiction of whistleblowers has improved and, therefore, sympathy to whistleblowers, including in Legislation and expanded state False Claims Acts, are important results.

Importance of Press and Whistleblower Relations

Going to the press is not usually the first resort for a whistleblower. Instead, any whistleblower with serious allegations should first determine what their claims are and how serious the evidence is that they can bring forward.

The press does need sources in order to keep individuals informed, and the press often has to rely on anonymous reports and whistleblower tips to do so. It is especially difficult for whistleblowers who are reporting a major case of fraud committed against the government, because such cases are filed under the False Claims Act, and that law requires that whistleblowers keep their allegations confidential while the government conducts its investigations.

Impact of Disclosure on a Whistleblower’s Rights

Unfortunately, the impact involving the press can have on a whistleblower’s case can do significant damage to the whistleblower’s rights, especially if they have serious allegations of fraud to present for which the whistleblower may be entitled to a reward. The clearest example of this is a public disclosure bar, which is part of the Federal False Claims Act.

It becomes much more difficult to succeed with a case based on public allegations than with allegations of fraud committed against the government that have not been disclosed in any public media. It can still be possible for a whistleblower to succeed as an original source of those allegations, but the whistleblower’s strongest position is to file a case that has not been publicly disclosed.

The Securities and Exchange Commission (SEC) Whistleblower Program similarly rewards whistleblowers who bring new information that the Government would not otherwise know about. The Commodity Futures Trading Commission (CFTC) Whistleblower Program and the Internal Revenue Service (IRS) Whistleblower Program are also willing to reward for original information that is not publically known.  It is therefore not usually advisable to go to the press with these kinds of allegations, at least until discussing the possibility of pursuing such claims under a Whistleblower Reward Law.

What Is the Impact of Repeatedly Going to the Press?

As a practical matter, it can be difficult to go to the press more than once. It is not a forum that lends itself to repeatedly addressing the same story through multiple press releases. Therefore, while going to the press may make sense at some point during a case, initially it may not.

If the case is successful in a Whistleblower Reward Law Program or under a False Claims Act, either federally or under one of many State False Claims Acts, the media is likely to learn about it that way. While that requires waiting a considerable period of time for the judicial or the administrative processes to deal with the allegations of the case, it also means that the press is likely to take such allegations more seriously than they would if they had not been presented and acted upon with the Government.

Of course, there are plenty of allegations of serious whistleblower issues that fall outside of a specific Whistleblower Reward Law, and there are many types of allegations which do not necessarily lend themselves to a court case. It is often the case that the whistleblower’s best opportunity to prove serious wrongdoing and affect change is good press.

This is not meant to be an attack on the rights of whistleblowers to involve the press in their case. It is just that for most whistleblowers, going to the press is not the first action that should be taken.

Violating the Seal

False Claims Act investigations are conducted under the seal of the court. Violating the seal not only may damage the whistleblower’s right to collect, but also may be considered interfering with the Government’s investigation.

This period of time, which can last for more than a year or even a few years, can be extremely frustrating for the whistleblower to endure. It is not sufficiently appreciated, the degree to which holding such facts, knowing such facts, and not being able to publicly discuss such facts, wears on a whistleblower. It is yet another reason why they earn any award they obtain. These facts are usually not easy to live with, know about, and still not be able to discuss with others for years.

Contacting a Lawyer About Involving the Press in a Whistleblower Case

Coming forward as a whistleblower, you might feel the urge to contact the press in order to expose the wrongdoing you have witnessed. While it makes sense a whistleblower would want to disclose that information publicly, it is not recommended at least until you discuss the matter with counsel, as the impact of involving the press in whistleblower cases can be very negative.

By disclosing your information early on, you weaken your case and decrease the value of the information that you have to share. Furthermore, by disclosing this information, you could end up negatively impacting your own rights as a whistleblower. A qualified qui tam lawyer in DC can help you work out what the best course of action is for you.