Abstract
How should one qualify political whistleblowing within a democratic system, governed by the rule of law? Whistleblowing is often considered a form of principled, sometimes even democratic dissent. In this last chapter, we discuss what kind of dissent whistleblowing is. We discuss various forms of dissent and argue that whistleblowing is neither a case of conscientious objection nor a case of civil disobedience. However—we conclude—it is a distinctive form of civil dissent against the threat of unruled government secrecy.
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- 1.
Joseph Raz defines revolutionary disobedience as ‘a politically motivated breach of law designed to change or to contribute directly to a change of government or of the constitutional arrangements (the system of government)’ (1979: 263).
- 2.
Strong protection means that free speech overrides other considerations of societal benefits that may result from limiting such right.
- 3.
Of course, employees may also decide to speak as citizens on matters they become aware of as employees. However, this argument seems to conflate different statuses of the person, as a citizen and as an employee. A whistleblower enjoys the right to free speech, but as an employee that right does not excuse, nor justify the violation of her contractual obligations . If there is a right to whistleblowing , it should apply to the person disclosing information qua member of the organization , not as a citizen . Another case is when the whistleblower is not a member of the organization and discloses information she has come to know indirectly from a primary source within the organization. These are the so-called third-party whistleblowers, who reveal classified material but are not part of the organization who claims ownership of the material. Third-party disclosures might be justified by free speech or freedom of the press; they may also be justified by a more general right to know , as in the case of Wikileaks when it publishes material obtained from its sources. But from the fact that the third-party exercises the right to free speech, it does not follow that there is a right to whistleblowing. It only follows that there is a valid legal justification for protecting the whistleblowing source and not revealing its identity.
- 4.
For a conception of side constraints, see Nozick (1974: 31–35).
- 5.
In this sense, free speech is a more fundamental right than personal liberty : personal liberty can be alienated by incarceration, whereas a person sued for defamation does not lose her right to speak freely.
- 6.
In the aftermath of the revelation , many have in fact accused Snowden of treason (see Keck 2013). Former director of the NSA Michael Hayden even called Snowden ‘a traitor’ (see Foley 2013). Some have claimed he had committed espionage (see Epstein 2014), while the CIA asserted that his leaks helped the ISIS Paris terrorists in avoiding detection (See Austin 2015; Simcox 2015). Some authors, especially in academia, have defended these acts as cases of conscience (see Berkowitz 2014), and conscientious objection (see ‘Edward Snowden: More Conscientious Objector than common thief’, The Guardian June 10 2013; see also Friedersdorf 2014; Bromwich 2014), or civil disobedience (Brownlee 2016; see also Scheuerman 2014a, b, 2016; Celikates 2016).
- 7.
The same view sometimes appeals to moral perfectionism, when conscientious objection is a way for a person to identify with who she really is, with one’s own character (Blustein 1993: 294).
- 8.
- 9.
To elaborate: respect for diversity demands the state protect conscientious acts that have great consequences for its citizens, if such protection does not impose great costs on the state. Such protection honors variety in the community in manner, moral conviction , and style of life that ‘not only adds richness and interest to the life of the whole but may prove essential to the long life of the community’ (Cohen 1968: 270). An autonomy based view demands protection of those actions that reflect ‘essential personal goals’ and are crucial to the sense of identity and self-respect of citizens whereby they are not forced to be ‘false to their moral convictions ‘(Raz 1979: 280–281). A freedom of conscience view, on the other hand, demands the state to avoid interference in action or thought that arise out of deeply held convictions. For instance, Martinez Torrón argues that such freedom consists not only ‘in the individual’s right to choose the moral principles that guide his life; it also entails the right to maintain behavior in conformity with the binding rules stemming from those moral choices—both in ordinary and in extraordinary circumstances’ (2015: 191). Freedom of conscience has yet another important epistemic function: policies and laws may be based on erroneous or false presumptions or might be simply wrong (see Mill 2003, chapter 2). When conscientious objection is defended as witnessing the wrongness of a policy , its democratic function bears a stronger resemblance to our account of whistleblowing.
- 10.
Doctors refusing to perform abortion or euthanasia on religious grounds, or soldiers refusing conscription based on their religious convictions are examples of conscientious objection. The right to refuse service is often allowed by the law when exemptions are a relatively costless measure that does not entail a substantive threat to the policy itself since there is a general expectation of sufficient compliance by other members of the community. For a discussion of conscientious objection in health care see Wicclair (2008, 2011), Savulescu (2006), Greenwalt (2006), R. F. Card (2007, 2011, 2014), Meyers and Woods (2007).
- 11.
- 12.
Joseph Raz argues that ‘laws protecting public interest have traditionally been the main focus of attention of those who claim a right to conscientious objection ’ (1979: 286). This is because laws protecting public interest have similar characteristics to those laws that provide for common goods (ibid.). He further argues that: ‘laws protecting the public interest normally allow for certain flexibility because of the insignificance of each individual’s contribution. Consider taxation , anti-pollution laws, etc. Most of the time exempting a single individual from the duty will make little or no discernible difference to the protected good. This is generally the case in all public interest laws concerned with the provision of common goods, whose availability to an individual does not depend on his personal contribution and where the value of individual contributions to the generally available benefits is small.’ (ibid: 285–6)
- 13.
- 14.
The story dates back to April 2017. For details, see Bêche-Capelli (2017).
- 15.
Henry David Thoreau is an exception to this claim; he refused to pay taxes because the state imposing taxation promoted slavery, and he therefore thought that the tax was illegitimate. He thus refused to let his own income be used to advance what he considered to be unjust. See Thoreau (2002). See also Bedau (1970), Lyons (1998), Herr (1974) for a different interpretation of Thoreau’s stance.
- 16.
For a detailed investigation of the problems related to the right to conscientious objections, see Raz (1979: 286–89). See also Greenwalt (2010b). Greenwalt (2010a) claims that evidence regarding the sincerity of beliefs is very hard to gather. It is easier in cases where the individual has already suffered losses but to test whether a claim is sincere would be difficult to assess by others (906). Reflecting on conscientious objection in healthcare, R.F. Card argues that conscientious objection can only be honored if the agent is also able to demonstrate to others (not necessarily convince) the reasonableness of her views (2014: 321–322; see also 2007, 2011)
- 17.
Markovits calls it democratic disobedience. Unlike the liberal view, whose primary concern is to oppose unjust laws or policies, democratic disobedience seeks to counter ‘democratic deficits’ in both laws and policies that threaten every democracy. Deviation from collective wills or manipulation causes deficits in the democratic process, and sometimes cannot be filled through institutional processes since these are inadequate and petitioning is frustrating at best (ibid.: 1934–35). When political institutions are caught in the inertia and thus inimical to change, citizens have no alternative other than to disobey them; such disobedience not only removes inertia but also, when applied properly, can enhance democracy (ibid.: 1928). By limiting people’s awareness of the intentions and actions of the government, secrecy generates a democratic deficit by compromising democratic checks and balances. An act of whistleblowing that uncovers illegitimate acts would thus constitute a form of civil disobedience under a Republican conception. For a deliberative account of civil disobedience see Habermas (1985) and Smith (2004, 2011, 2013), for a communicative account see Brownlee (2012a). For other general liberal accounts of civil disobedience see Cohen (1969), Bedau (1961), Raz (1979).
- 18.
In Smith’s account, civil disobedience upholds the norms of deliberative democracy and thus is a way of publicizing issues that receive scant attention due to the ‘stifling effects of prevailing orthodoxies’ (ibid.). Civil disobedience is thus justified as an act of protest against the failure to respect principles of deliberative democracy in three cases: when deliberation is insufficiently inclusive; when it is manipulated by powerful participants; and when it is insufficiently informed (Smith 2004: 363–64). Civil disobedience is also a way to counter the inertia that arises when a ‘law and policy is determined by discursive frameworks that are less adept at identifying and resolving vital policy issues than marginalized alternatives’ (Smith 2011: 154). Such inertia inhibits the ‘cognitive function of the public sphere’ by limiting the likelihood of alternative perspectives to have a say in the deliberative process, and by excluding important discourses from participating in the policy-making process (ibid). A deliberative act of civil disobedience is carried out ‘not with the aim of self-promotion, but with the intention to publicize discourses that identify and address problems of demonstrable and urgent import to the democratic community’ (ibid: 156). It is an act of ‘will formation’ geared towards enlisting the support of citizens to force the government to take note of issues of urgent import (ibid: 158).
- 19.
Sissela Bok (1983) had indeed already touched upon this issue, arguing that whistleblowing and civil disobedience are two distinct forms of dissent.While they resemble each other in their openness and intent to act in the public interest , whistleblowing does not often constitute a breach of law and is protected by the right to free speech. Whistleblowing is a violation of loyalty and an accusation against specific officials. Neither of these features is a case of civil disobedience. However, the two can be combined in the case of ‘former CIA agents [who] publish books to alert the public about what they regard as unlawful and dangerous practices, and in doing so openly violate, and thereby test, the oath of secrecy they have sworn’ (Bok 1983: 214ft). Interestingly, for Bok, whistleblowing is a case of civil disobedience when the disclosure of information is an open violation of the oath of secrecy to reveal information that the whistleblower feels is unlawful and dangerous. Frederick Elliston makes a similar comparison between civil disobedience and whistleblowing, by using civil disobedience to shine a light on whistleblowing. For more see Elliston (1982).
- 20.
In another paper, Scheuerman elucidates this argument further by arguing that ‘[w]hen criminal proceedings potentially violate basic legal virtues (generality, clarity, and publicity), or where the independence of courts is badly compromised, sound reasons can be adduced for avoiding criminal punishment . A dissenter who accepts the legitimacy of criminal proceedings which are secret, irregular, or arbitrary does not, in fact, necessarily help to uphold law’s highest aspirations. On the contrary, by participating in them, they inadvertently risk becoming complicit in the regime ’s assault on the rule of law ’ (2015: 446).
- 21.
Evgeny Morozov argues that DDOS attacks cannot be construed as an act of civil disobedience because they do not fulfill the fidelity to law criteria laid down by Rawls . See Morozov (2010)
- 22.
The literature on publicity is quite contested. While on one hand Carl Cohen (1966) and Marshall Cohen (1969); Gewirth (1970); Habermas (1985); Bedau (1961; 1970); Singer (1973); Smith (2013); Childress (1985) argue for advanced warning as a commitment to sincerity and seriousness, Raz (1979), Smart (2002), Simmons (2010), Brownlee (2004) disagree. They argue that sometimes advance warning can inhibit the act of disobedience, thus in such circumstances, the requirement of publicity should be relaxed. The dissenter should instead be required to explicate their motives ex-post.
- 23.
Like most features of Rawlsian civil disobedience, fidelity to the law has also sparked major debates. Fidelity to the law is supposed to demonstrate the sincerity of conviction , concern for other law-abiding citizens , and public mindedness (Rawls 1999). Andrew Sabl defends fidelity on the basis of the benefits for future cooperation that it entails (2001: 317). Robin Celikates argues instead that fidelity to law is inimical to political and social changes that are transformative in character. Fidelity shows bias towards constitutional and legal systems that are badly in need of an overhaul (Celikates 2014: 216). On the other hand, David Lefkowitz (2007) argues that while the protester need only submit to the law for strategic reasons, the state should have the liberty to penalize, but should refrain from punishing dissenters. See also Brownlee (2008) for a critique of Lefkowitz suggesting that accepting a moral right to public disobedience also includes claims against penalization by the state. On the same debate, see also Brownlee (2007), Zinn (1968).
- 24.
See also Brownlee (2012a) on the communicative aspect of civil disobedience.
- 25.
She primarily deals with the conception of civility proposed by Smith (2013).
- 26.
Piero Moraro (2014) argues that sometimes road-blocks or forcing people to take notice of a protest by inconveniencing them does not undermine their autonomy because the mode of protest is aimed at seeking attention, and thus enhances dialogue with others who in ordinary circumstances would not take note. The process of dialogue can be a way for the protesters to help others to identify with their desires and choices which would not have been possible if not for the forced dialogue. The use of force, in this case, allows others to access a wide variety of choices which would not have been available to them due to lack of information or other factors which they would not consider in making a choice. Moraro cites the blockade of Stansted Airport in 2008 by protestors to draw attention to the dangers to the ecosystem within it. See Moraro (2014).
- 27.
Secrecy disclosures can also be instrumental to civil disobedients as in the case mentioned above of the Arab Spring. Disobedience can also arguably be a product of policies that deprive citizens of assessment of certain secret actions of the government . In this case, disobedience may take the form of a demand for general transparency .
- 28.
The recourse to violence is debated in the literature on civil disobedience. For Rawls (1999) a justified act of civil disobedience should be non-violent since as a mode of address ‘civil’ disobedients cannot resort to threatening the rights of others. Andrew Sabl adds that resorting to violence is also not pragmatic since it can invite retaliation from the majority and preclude any form of just cooperation in the future (2001: 314–15). However, rational persuasion can often fail when the majority is unwilling to address the concerns of the disobedient groups. Protesters can use violence as a mechanism to draw attention to issues they feel are important, where either the majority or those in power would not take note if not for the inconvenience caused due to the violent action. Thus certain forms of disobedience such as sit-ins, mass tax-refusals, and public disruption would constitute a legitimate form of action if they helped in furthering the cause, initiating a hitherto non-existent dialogue, or when violence may help to stop the oppression of innocent persons (Morreall 1976). Recourse to violence sometimes does not undermine demands of equal opportunity or deny the legitimacy of the state machinery (Smart 2002: 205–6). Rather, at times, recourse to non-violent lawful action can have even more harmful consequences, such as in the case of strikes by ambulance workers (Raz 1979: 267). Violence, if used discriminately, with prudence , and with great reluctance, can communicate the dissenter’s frustration and the importance of the issues being addressed, and to that extent, it is non-coercive given the enormity of the issue at hand (Brownlee 2004: 349–50). A.J. Simmons considers violence to be an appropriate political act when it is ‘carefully presented to the public as protest , if it is isolated (an unusual act in an otherwise non-violent life), if it has been preceded by passive political efforts, and if it is followed by non-evasion and acceptance of punishment ‘(Simmons 2010: 1808).
- 29.
Whistleblowing can also represent a direct manifestation of a wrong or injustice when it signals the wrong conducted by colleagues or members of an institution . In this case, the violation is directly related to the law one is bound to comply with. This is chiefly the case of civic whistleblowing .
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Santoro, D., Kumar, M. (2018). Charting Dissent: Whistleblowing, Civil Disobedience, and Conscientious Objection. In: Speaking Truth to Power - A Theory of Whistleblowing. Philosophy and Politics - Critical Explorations, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-319-90723-9_6
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