AN ANALYSIS OF HOW WHISTLEBLOWING FITS WITHIN THE CONTEXT OF CIVIL DISOBEDIENCE

(In light of the upcoming change in administration and the push for greater whistleblower protections I thought I'd publish my analysis of how whistleblowing fits within the context of civil disobedience. This article was originally written for my PhD studies.)

Dr. Martin Luther King Jr., Rosa Parks, Nelson Mandela, and Mahatma Gandhi were all used as prime examples of textbook civil disobedience. Daniel Ellsberg's Pentagon Papers and Frank Serpico's testimony against the New York Police Department up until recently were often the pinnacle examples of whistleblowers. Recently, there has been a surge in the whistleblower phenomenon. Edward Snowden, Julian Assange, David Grusch, and the more recent Boeing whistleblowers have captivated the world. Are these whistleblowers akin to the civil disobedience illustrated by Dr. King and Gandhi, or are they traitors and leakers worthy of prosecution under The Espionage Act?

William E. Scheuerman's work, “Whistleblowing as Civil Disobedience”, presents a compelling argument for the similarities and differences between the two actions. He asserts that understanding how the legal system and society view them is crucial. Scheuerman points out the increased prevalence of whistleblowing in recent history as a reason to investigate the distinctions between civil disobedience and whistleblowing. Scheuerman (2021) notes how society often views both in the same light, stating, “Whistleblowing is associated in the public mind with civil disobedience in part because whistleblowers often self-identify as such.” (p. 385). He further delves into the legal implications for whistleblowers, providing a comprehensive analysis.?"They do so because civil disobedience possesses a moral and political cachet that alternative terms (e.g., "leaker," "snitch,"?"traitor") lack." (p. 385).

One can merely do a cursory analysis of public discourse related to the civil disobedience displayed by Mahatma Gandhi compared to that of Edward Snowden to see a stark difference. Terms like "traitor"?or "leaker"?are not associated with Gandhi, just as "leader"?or "activist"?are equally absent from descriptions of Snowden. Clive Harfield dives deeper into whether Edward Snowden should be regarded as an activist or a traitor in his article “Was Snowden Virtuous?”. On the one hand, Mr. Harfield explains that Mr. Snowden's violation of his employment contract, at a minimum, shows a level of dishonesty. The information he chose to disclose, according to the government, put the nation in danger, thus running him afoul of the Espionage Act. The first provision of the Espionage Act, 18 U.S.C. § 793, (1950) prohibits certain activities related to gathering, receiving, or transmitting national defense information to one "not entitled to receive it."

Furthermore, the act prohibits obtaining information "with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation."?The argument made by the government is that Mr. Snowden, in transmitting national defense information to journalists who were "not entitled to receive it,"?caused "injury"?to the United States as it put covert missions and agents at risk. However, the public discovery of the government running illegal surveillance measures with zero oversight fundamentally changed how intelligence gathering was to be accomplished. Harfield (2021) distills these two competing truths into a need to weigh whether the moral public interests outweigh that of the government's interests. He writes,

…the public interest in preserving and upholding the rule of law and holding government agencies properly to account would seem to carry greater moral weight because government agency disregard for constitutional protections and evasion of proper governance are seriously detrimental and damaging to the legitimacy of the social institution of government in a liberal democracy. (p. 376).?

While Mr. Snowden's actions were unlawful, the question remains whether his unlawful actions were an exercise in civil disobedience to uncover more significant unlawful activity.

The worldview Mr. Scheuerman chooses to analyze the connections between whistleblowing and civil disobedience is a naturalist worldview in which laws originate from man and are enforced by the government through positive law. In the context of Mr. Scheuerman's analysis, this worldview does not consider any religious aspects, although he is not outright secular. He does emphasize that the judgment of whether a whistleblower is justified in their actions should be based on what civilized society would deem appropriate. This lens brings to life the central conflict addressed in the article. Regarding legal ramifications, Scheuerman writes,

One notable consequence is that state officials (e.g., judges, prosecutors) sometimes treat those viewed as falling under civil disobedience's rubric more leniently than other legal offenders. When successfully placing their efforts under the rubric of civil disobedience, whistleblowers can claim the mantle of iconic political figures and garner valuable accolades. (p. 385). ?

However, as the author notes, saddling their actions with that of civil disobedience does not always moor the whistleblower in a safe legal harbor.?"Absent a significantly more just and egalitarian social order (and more legitimate institutions), some acts of whistleblowing will assuredly generate duress for those pursuing them." (p. 401).

In the case of Edward Snowden, the argument that his actions were meant to disrupt unlawful activities and should thus put him in the same arena as Dr. King has yet to provide relief from the Department of Justice.

Scheuerman concludes that the similarities between whistleblowing and civil disobedience are too numerous to ignore. He further recommends that if organizations had more institutionalized methods and protections for whistleblowers, it would disconnect the similarity from civil disobedience in that it would no longer be illegal to "blow the whistle."?He writes,

Specifically, when private or public organizations possess well-functioning internal channels for whistleblowing, and those pursuing it are unlikely to face legal penalties or other negative repercussions, whistleblowing should not be characterized as "disobedience to the law within the limits of fidelity to the law. (p. 386).?

Within his recommendation of institutionalizing the act of whistleblowing, thus making it no longer possibly afoul of the law, he proposes that these individuals should no longer be considered "heroic"?or "acting on the basis of conscience." (p. 400).?The argument asserts that this "solution"?would compel individuals to report wrongdoing as a moral duty and a civil requirement. In the example of Edward Snowden, Younger (2020) notes he technically had no whistleblower protection as a contractor because there was no availability for intelligence contractors to report wrongdoings. (para. 5). Had there been a conduit for Mr. Snowden to report what he had discovered, perhaps according to Scheuerman's conclusion, he would not be a hero or a traitor but merely a man doing his job.?

Separate from the legal implications and textbook definitions that surround whistleblowing and civil disobedience are the societal assumptions levied on both. Scheuerman touches on this interesting component when highlighting the societal expectations for both actions. He writes,

Whistleblowing's academic defenders often posit that illegal, immoral, or illegitimate practices need to be sufficiently serious for whistleblowing to be justified, just as civil disobedience's exponents frequently require that protested injustices need to be genuinely egregious for lawbreaking to be legitimate. (p. 388).?

How does society define what is "sufficiently serious"?or "genuinely egregious"? In a secular society, those definitions can evolve with civil temperaments and competing societal priorities. Additionally, the environment and circumstances surrounding civil disobedience versus whistleblowing have unique characteristics. Whistleblowing generally involves an often-anonymous individual releasing information obtained as a private employee with a private organization or government entity. Civil disobedience almost always involves a group of individuals creating unrest or societal discomfort via lawbreaking to affect public practices or government policies. According to Scheb and Sharma (2020)

Belief in a higher law or some higher standard of justice permits us to evaluate the operations and policies of our legal system, to object when a particular legal rule is established or a particular legal decision is rendered, and to argue for the need for legal change. (p. 5).?

The "higher law"?often quoted in the United States is that of The Constitution. Scheb and Sharma continue to explain the role of civil disobedience in this belief system. "In extreme circumstances, belief in a higher law may provide a justification for violating the positive law, as long as the violator is willing to accept the consequences of disobedience." (p. 5).?In this instance, those consequences are laid out by positive law written by man and exercised by the government. Unfortunately, that very worldview creates the illusion of ambiguity surrounding the appropriateness of both civil disobedience and whistleblowing.

To justify an act of civil disobedience or whistleblowing, one must first understand where the motivations for both commonly come from. Many whistleblowers have argued that they felt they had a duty to expose the information they chose to come forward with. Henry David Thoreau famously claimed citizens must participate in civil disobedience if their conscience dictates it. So, where does conscience come from? If one follows the secular worldview, conscience comes from societal norms that dictate right from wrong and moral from immoral. However, societal norms are subjective and malleable to the changing currents of trends influenced by outside factors unrelated to natural law. However, if one follows a Christian worldview, that justification for civil disobedience and, in turn, whistleblowing becomes much more precise.

Herbert Titus (2008) illustrates this in his lecture on The Bible and American Law. He explains, "Peter and John were arrested and charged with teaching in the name of Jesus. These two were unlearned men – they had not gone to law school – but they knew the law." (p. 307).?How did Peter and John know the law if they were unlearned men? Because the law they knew was God's law which is the law for all mankind regardless of whether he is believed in or not. After being released, Peter and John continued to teach in the name of Jesus, and then again, they were brought before the high priest. In Acts 5:28, the high priest says, "We gave you strict orders not to teach in this name…Yet you have filled Jerusalem with your teaching and are determined to make us guilty of this man's blood."?Peter responded, "We must obey God rather than man!" (Acts 5:28, Revised Standard Version).?This statement shows that Peter and John understand that the only valid law is God's law, and any man-made law that goes against God's law is inherently unlawful. In turn, to be lawful is to be disobedient towards any unlawful law that opposes God's law.

Scheb and Sharma tell us that Mr. Thoreau believed "the conscience of the individual is superior to the law of the state and that individuals have the right, indeed the duty, to violate the law when the law contravenes conscience." (p. 5).?However, the argument in secular society could claim, as they continue to write, that "An individual conscience provides an insufficient basis for disobedience – that an individual cannot be permitted to become a law unto himself or herself."?(p. 5 – 6). However, a Christian worldview would argue that the individual conscience is not individualized but guided by the Divine. Therefore, an individual using the Christian worldview to guide their actions either through civil disobedience or the more formal institutional whistleblowing is not acting as if the law is inherent within them, but inherent within God, compelling them to follow in the path of lawfulness versus a man-made unlawful path.?

In closing, when considering Edward Snowden's case through the Christian worldview, the argument could be made that the results of his actions were righteous. However, the method was less an act of civil disobedience and more an act of contractual lawlessness in the name of the greater good.?

References

The Espionage Act, 18 USC Chapter 37 §793 (1950). https://uscode.house.gov/view.xhtml?path=/prelim@title18/part1/chapter37&edition=prelim

Harfield, C. (2021). Was Snowden Virtuous? Ethics and Informational Technology 23, 373 –?????????????????????????????????????????????????????????????????????????????????? 383. Retrieved from https://doi.org/10.1007/s10676-021-09580-4

Scheb, J.M., Sharma, H. (2020). An Introduction to the American Legal System (5th ed,). New York, NY: Wolters Kluwer.

Scheuerman, W. E. (2021). Whistleblowing as Civil Disobedience. The Cambridge Companion to Civil Disobedience, 384 – 406.

Titus, H. W. (2008). The bible and American law. Liberty University Law Review, 2(2), 305 – 328

Younger, N. (2020). The case of Edward Snowden. National Whistleblower Center Retrieved from https://www.whistleblowers.org/news/the-case-of-edward-snowden/

?

?

?