Paging Mr. Obvious – The Media Is Not The Government

That headline might be a little harsh. But it is actually a pretty accurate summary of what the US Court of Appeals for the Ninth Circuit held in a case it decided earlier this week. The case, Tides v. Boeing, concerned two former Boeing auditors who communicated their concerns with Boeing’s business practices to a reporter for the Seattle Post Intelligencer. When Boeing discovered the leaks, it fired both employees. They contended however, that they were protected from retaliation by the whistleblower provisions of the Sarbanes-Oxley Act. But they ran into a problem. That provision protects employees who provide information to: (1) a federal regulatory or law enforcement agency, (2) a member or committee of Congress, or (3) a supervisor or other individual who has the authority to investigate, discover or terminate such misconduct. And the Post Intelligencer is, uh, none of the above. The employees really didn’t have much of an argument. Even when they tried to say that Congress meant to protect leaks to “any person” they were rebuffed. The Court noted that the federal Whistleblower Protection Act prohibits retaliation against government employees for any disclosure. In the Court’s mind, this demonstrated that when Congress intends to give unlimited protection, it knows what words to use. Sarbanes-Oxley used more limited language, and offers more limited protection. Again, kind of obvious. Although the National Whistleblower Center (there really is one) would respectfully disagree.