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How Can You Blow a Whistle — But Not Make Any Sound?

Mark Ladov,
First Amendment Working Group
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January 15, 2009

Today the ACLU filed suit challenging secrecy provisions that hide an entire underground docket of cases from public view. The ACLU and the ACLU of Virginia filed the complaint on behalf of the ACLU, OMB Watch and the Government Accountability Project (GAP). The lawsuit asks for a declaration that these secrecy provisions violate the First Amendment, and an injunction against their enforcement.

These secret cases have been filed under the False Claims Act. We have no idea how many of these secret cases exist, but the Department of Justice estimated in 2007 that about 1,000 such cases are under seal.

The False Claims Act was enacted by President Lincoln during the Civil War to combat war profiteering and other contractor fraud against the federal government. As the press has reported during the current war in Iraq, war profiteering is still with us. The FCA allows whistleblowers with allegations of fraud against the U.S. government to file a lawsuit (also known as a qui tam lawsuit) on the government’s behalf, and to share in any money that is recovered by the suit. But because of the law’s secrecy provisions, these lawsuits must be filed under seal. The whistleblower who files the suit is automatically gagged from speaking about it to anybody.

Notably, these secrecy provisions were not added to the law until 1986. Until then, for over a century, all of these qui tam suits had been filed publicly, just like any other lawsuit.

The First Amendment protects the right of the public and the press to know about what is happening in our courts. Under the First Amendment, court filings must be publicly available, unless there is a compelling reason to seal the proceedings from public view. But under the False Claims Act, a complaint is automatically sealed, whether or not there is any reason to do so. Allegations of fraud remain hidden from the public for months, or even years, while the Department of Justice decides whether or not to intervene in the suit.

This law also violates the First Amendment rights of the whistleblowers themselves. The law gags whistleblowers as soon as they file their lawsuit — even if they want to tell the press and the public about their allegations. If a whistleblower believes that her employer has been defrauding the federal government, or threatening the public’s health and safety, she is free to tell the world about it — up until the moment that she goes to court with these allegations. After her complaint is filed, she can’t even confirm that her lawsuit exists. If she does discuss her allegations with a reporter, she could risk the possibility of criminal prosecution for violating the seal.

We expect this lawsuit to generate some controversy in the qui tam community. Some feel that whistleblowers won’t come forward unless the secrecy provisions are in place. We agree that, in some cases, a seal on a qui tam lawsuit may be justified. We certainly agree that some whistleblowers (like the “John Doe” and “Jane Roe” plaintiffs in cases on the ACLU’s docket) may need to take steps to protect their privacy when filing a qui tam complaint.

But courts must evaluate these crucial questions of privacy, secrecy and public access on a case-by-case basis. We can’t see how a blanket seal, applied without any justification, can be reconciled with the First Amendment’s protection of an open judiciary and a free press. The allegations raised by a False Claims Act suit are, by definition, allegations of fraud against our government and the misuse of taxpayers’ funds. We have a right to know about such allegations, and to debate their merits. This transparency is necessary to a free and democratic society. And it is protected by our First Amendment.

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