Whistleblower Attorney Addresses International Journalists Under State Department Program

Sarah Masarweh also contributed to this article.

On March 8, whistleblower attorney Stephen M. Kohn addressed journalists from across the Indo-Pacific and Central Asian region as part of the U.S. State Department’s International Visitor Leadership Program (IVLP). This segment, titled the “Edward R. Murrow Program for Journalists: Research and Investigation for the Indo-Pacific and Central Asia,” looked to unite journalists in the effort to promote democracy and free speech in their home countries.

Kohn, a founding partner of the leading whistleblower firm Kohn, Kohn & Colapinto LLP and Chairman of the Board at the National Whistleblower Center, has been representing whistleblowers since 1984, presenting numerous times through the IVLP program.

One professional objective of this IVLP initiative was to “review the role that investigative journalists play in U.S. society as they raise awareness of issues of social concern and report on illegal, irregular, or abusive actions committed by government, politicians, criminals, or corporations,” which is where whistleblowing comes into play.

Kohn began by describing the 1968 Supreme Court Case, Pickering v. Board of Education, as a historical breakthrough for journalists and whistleblowers. The court found that disclosures of public importance to the news media by a whistleblower were protected under the First Amendment, in that both journalists and whistleblowers are protected from being sued for libel. This reaffirmed the anti-retaliation laws set to protect whistleblowers, as the prior standard only protected government workers, not the private sector.

“What the Supreme Court understood is that in terms of government misconduct, unless you have the workers within the government feeling that they can expose the wrongdoing, you don’t even have a democracy,” Kohn said.

He explains further that journalists or whistleblowers would have to knowingly or recklessly make a false statement to be sued for libel.

“The bottom line is without this type of protection against libel, it’s very hard to have an effective whistleblower,” Kohn says.

A journalist from Singapore asked if there was a legal definition of matters of public importance. In response, Kohn notes that there is no legal definition, but it is apparent on a case-by-case basis.

Kohn then described the revolution of whistleblowing, highlighting the Foreign Corrupt Practice Act (FCPA) and the Anti-Money Laundering (AML) Act. The FCPA covers different types of foreign corruption, including the payment of a bribe, which is defined as the giving of anything that has value in order to favorably obtain a contract or other business deal. Kohn clarified that many of the companies that are sanctioned under the FCPA are international and active in multiple countries.

Kohn said that the AML Whistleblower Improvement Act, passed in December 2022, will become the most effective and vital anti-corruption law, since most acts of corruption include money laundering. The AML Act sanctions those who attempt to hide beneficial ownership of a large sum of money, which is typically done through international banking systems.

Noting that these whistleblower laws are transnational, meaning that anyone outside of the U.S. can utilize them, Kohn stressed the importance of awareness of these laws within the IVLP participants’ own home countries. Whistleblowers can confidentiality and anonymously file cases under these laws, and since 2011, the U.S. Securities and Exchange Commission has received over 5,000 tips from more than 130 countries.

Under these laws, whistleblowers can be eligible for 10-30% of the sanctions obtained in a case, which have been in the millions and even billions of dollars. Kohn described that original information and voluntary reporting are key to qualifying as an official whistleblower with a possibility for an award.

The FCPA and AML have allowed whistleblowers worldwide to get monetary rewards that would not have been possible. With these American laws, whistleblowers worldwide can blow the whistle without fear of retaliation and the possibility of financial rewards. Journalists and everyday people alike must become aware of these laws and know their rights when it comes to exposing corrupt companies and government officials.