Journal of Business Ethics (2007) 76:413426 DOI 10.

1007/s10551-006-9291-2

Springer 2007

Dissolving the Moral Dilemma of Whistleblowing

Lars Lindblom

ABSTRACT. The ethical debate on whistleblowing concerns centrally the conflict between the right to political free speech and the duty of loyalty to the organization where one works. This is the moral dilemma of whistleblowing. Political free speech is justified because it is a central part of liberal democracy, whereas loyalty can be motivated as a way of showing consideration for ones associates. The political philosophy of John Rawls is applied to this dilemma, and it is shown that the requirement of loyalty, in the sense that is needed to create the moral dilemma of whistleblowing, is inconsistent with that theory. In this sense, there is no moral dilemma of whistleblowing. This position has been labelled extreme in that it says that whistleblowing is always morally permitted. In a discussion and rejection of Richard De Georges criteria on permissible whistleblowing, it is pointed out that the mere rejection of loyalty will not lead to an extreme position; harms can still be taken into account. Furthermore, it is argued that the best way is, in this as in most other political circumstances, to weigh harms is provided by the free speech argument from democracy. KEY WORDS: free speech, justice as fairness, loyalty, permission for whistleblowing, whistleblowing

Introduction Imagine that you have learned that somebody is planning to dump toxic waste in a lake not far from where you live. This information is not public. What would you do? It appears likely that you
Lars Lindblom is a Ph D. student in philosophy at the Royal Institute of Technology, Stockholm, Sweden. He has worked as a business ethics consultant and has written on efcency, workplace inspections and business ethics.

would alert the authorities or perhaps talk to the press. In some circumstances, however, we are told that doing this would be immoral. These are the cases in which you are employed by the perpetrator. Here our moral ideas about loyalty are supposed to kick in. Alerting the authorities would make you a whistleblower, and doing so without rst discharging your duty of loyalty to your employer would make you guilty of performing an act that is not morally permitted. Whistleblowing might seem like a peculiar ethical problem. Why would speech not be morally permitted? This has to do with what might be called the moral dilemma of whistleblowing; the conict between political free speech and our moral duties towards our workplaces. In this paper I will spell out a liberal argument against viewing whistleblowing as a moral dilemma, and in doing so I will argue against the idea that we need a set of criteria for deciding how to weigh loyalty against free speech. More specically, I will argue that we have a right to free speech, that includes a right to blow the whistle, the permissibility of which should not be restricted by a duty of loyalty towards the organizations where we are working. It should be pointed out that the fact that we have such a right does not imply that we have a duty to blow the whistle. Furthermore, in this paper I do not discuss the question of how certain the whistleblower must be that the information he or she has about possible wrongdoing is correct. This question is distinct from the issue of loyalty, that is my focus here. Finally, the argument presented in this paper is intended to cover standard cases of employment; I am not discussing the special problems that work in, e.g., the military or the security services present. The rst part of the argument concerns the prevalent understanding in the literature of whistleblowing as an ethical issue, whereas the second part

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Lars Lindblom importance of keeping apart considerations of loyalty from avoidance of unnecessary harm is emphasized. In my concluding remarks I spell out some implications of my analysis concerning what moral issues should be further investigated in relation to whistleblowing.

focuses on the criteria of permissible whistleblowing, and their justication, put forward by Richard De George (2006). The argument will be based on the political liberalism of John Rawls. The crucial point is that the workplace is a part of the basic structure of society, and as such its design as an institution should be constrained by the two Rawlsian principles of justice. The Rawlsian theory of justice is a theory of institutional design and it is an argument of this type that I am presenting, not an argument concerning how to act within institutions that are taken as given. The basic argument is that we should not conceptualize, and hence organize, the workplace in such way that it incurs a duty of loyalty that blocks free political speech. This means that employees will not have the relevant moral duty of loyalty towards the organizations in which they work that creates the moral dilemma of whistleblowing, and consequently that their behaviour should not be regulated by De Georgian criteria of justied whistleblowing. Furthermore, I will try to show that this permissive stance towards whistleblowing is not an extreme position to take, but rather that it is based on a fairly non-controversial view regarding free speech. The core of the argument comes down to a comparison between De Georges important theoretical views in business ethics and Rawls highly inuential work in political philosophy. These two perspectives are found, somewhat surprisingly, inconsistent when it comes to whistleblowing and it is argued that we should prefer the Rawlsian view. I am assuming that the reader that does not agree with this preference still should nd it to some extent interesting that these two inuential views are incompatible. In the next part of the paper I will present a denition of whistleblowing and spell out my understanding of the moral dilemma of whistleblowing. The third part of the paper presents a theory of free political speech and tries to show that situations where proper whistleblowing is a possibility are such that they ought prima facie to be covered by a quite minimal notion of free speech. The conict between freedom of speech and moral criteria for whistleblowing is then brought out in a discussion of Rawls theory of justice. There I seek to dissolve the moral dilemma of whistleblowing by showing it to be incompatible with such a theory of justice. The implications of this are outlined in a section on De Georges famous moral criteria for when whistleblowing is permitted. Here the

The moral dilemma of whistleblowing Let us start with a descriptive denition of whistleblowing. There are many attempts to provide such a denition, and Peter Jubb (1999) has done an exemplary job of collecting the most widely discussed of these. On the basis of this he put forward his own denition with the purpose of summarizing the issues of the debate:
Whistleblowing is a deliberate non-obligatory act of disclosure, which gets onto public record and is made by a person who has or had privileged access to data or information of an organization, about non-trivial illegality or other wrongdoing whether actual, suspected or anticipated which implicates and is under control of that organisation, to an external entity having potential to rectify the wrongdoing.1 (Jubb, 1999, p. 78)

You are engaged in whistleblowing, if you have gained information about some non-trivial wrongdoing or illegality in your work and you have proceeded to make this information public. Let us call a situation where an agent has a choice to make such an act of disclosure, as described in the denition, a potential whistleblowing situation. There is one aspect of illegality, which here creates a moral problem. To make public something that is against an unjust law qualies as whistleblowing. This would imply that an employee of Schindlers could have been justied in alerting the Third Reich authorities that he was helping Jews escape the holocaust. There is a close relationship between political justice and the problem of whistleblowing. But the question of whether such whistleblowing would have been justied also depends on what criteria of justiability one nds compelling. The standard view in the literature, which is De Georges, is quiet on the issue of the justice of the laws broken, and rather than trying to solve this complex issue here I will follow the

Dissolving the Moral Dilemma of Whistleblowing traditional route and assume that the laws are just, or at least not blatantly unjust. The debate on morality whistleblowing centres on the conict between the duty of loyalty to the rm or organization in which one works and the liberty to speak out against wrongdoing. This is the moral dilemma of whistleblowing. This dilemma comes about because we tend to think, like Beauchamp and Bowie, that [e]mployees have both legal and moral obligations to be loyal to their employers (1988, p. 262), and simultaneously hold that we should be free to do our part in stopping immoral or dangerous practices. In this paper I will discuss this moral duty of loyalty only, as I assume that a legal duty either would be motivated by such a moral argument, or it has a consequentialist justication that relies on some other value that has remained implicit in the ethical debate on whistleblowing. The ubiquitousness of the understanding of the issue as concerning loyalty can be seen in most business ethics books, where sections on the problem often have titles like Whistle Blowing versus Organizational Loyalty (Weiss, 2006, p. 407) or Whistle-Blowing and Loyalty (Chryssides and Kaler, 1996, p. 96). As there is more than one aspect of loyalty involved in some discussions on whistleblowing, it is important to keep different loyalties apart. Consider the following quote from Sissela Bok where she states that the would be whistleblower must weigh his responsibility to serve the public interest against the responsibility he owes to his colleagues and the institutions in which he works. (1988, p. 293) There are two kinds of loyalty involved here. One of them concerns personal relationships and responsibilities towards ones colleagues; this is a kind loyalty that one may owe to ones friends and family. The second kind of loyalty concerns ones duties to the organization where one is employed. It is this duty of loyalty that creates the moral dilemma of whistleblowing. It is this second type of loyalty that I will be concerned with in this paper. This focus is not meant to imply that other issues of loyalty should not be considered when thinking about whistleblowing, but rather that these are separate problems from the central dilemma between loyalty to the rm and the freedom of speech. I will return to this issue in when presenting Rawlss theory of justice. How should loyalty be understood? According to Nuyen the concept originally meant adherence of a

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subject to a sovereign (1999, p. 26), but we can assume that this view is not what makes us think that there is a moral dilemma of whistleblowing.2 Such an aristocratic ideal clashes too violently with a modern democratic conception of persons (cf. Muirhead, 2004). The notion of loyalty that is at the centre of the debate comes from John Ladd: loyalty is wholehearted devotion to an object of some kind (quoted in, for instance, Duska 1988, Corvino, 2002, cf. the discussion in Nuyen, 1999). Loyalty means that you make the interests of the object of loyalty your own and act in that objects best interest. To turn the attention more specically to whistleblowing, De George says that loyalty can be understood as a positive concern for the rm, if not full identication with it. (2006, p. 305) In a whistleblowing scenario, loyalty, then, means that the employee should be especially concerned with harms that might befall the organization if the press or the police were informed of its actions. Such harms are more important carry more weight than harms to the general public and should be afforded priority in the employees deliberations. Such an interpretation makes sense of the widespread acceptance of De Georges criteria of permissible whistleblowing, which should count in its favour. This leaves the question of what kinds of entities can we owe loyalty to. Ronald Duska famously denies that rms or organizations can incur a duty of loyalty. There is no moral dilemma of whistleblowing since one does not have an obligation of loyalty to a company, even a prima facie one, because companies are not the kind of things that are properly objects of loyalty. (Duska, 1988 p. 300) From this perspective, only persons can be owed loyalty. This is a difcult issue and Duskas argument has been challenged (Corvino, 2002). I think, however, that even if we want to deny that whistleblowing presents us with a moral dilemma, it is not very important to produce an answer to the question of what we can be loyal to. I will argue that even if we can have a duty of loyalty to companies, this duty is irrelevant when we stand before a potential whistleblowing situation. On the value of free political speech There are three central arguments for the value of free speech. Some argue for this liberty on the

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Lars Lindblom agrees: Of course, the right to free speech extends well beyond politics. But at its core, that right is designed to protect political disagreement and dissent. In this way, it furnishes the foundation for democratic self-government. (2003, p. 98) He also points out that in terms of restricting the scope of the rst amendment to the U.S. constitution (congress shall make no law... abridging the freedom of speech.) government must show that the speech under consideration is intended or likely to cause imminent lawless action. (2003, p. 98) From these quotes we can distil three essential properties of free speech. It is a precondition for democracy, it concerns centrally political speech, and it can only under very particular circumstances be restricted. Freedom of speech is a precondition for democracy, because without free communication the people cannot properly rule. Generally, there are two aspects of this. Without being allowed to give voice, the people cannot control government. Without receiving information citizens will not know what problems there are, but citizens must try to understand issues which, incident by incident face the nation (Meiklejohn, 1996, p. 13). Furthermore, without free speech citizens will be hampered in evaluating the actions of the political bodies in charge, and they will have difculties in nding out what solutions are available and the likely effects of these solutions.3 The central aspect of free speech on this view is free political speech. Debates on free speech often concern issues like hate speech, commercial speech etc., or they deal with wider categories of expression such as ag burning. Our interest here concerns what is undoubtedly inside those limits. In regards to the First Amendment, the freedom of expression that it outlines protects the freedom of those activities of thought and communication by which we govern. (Meiklejohn, 1996, p. 13) Political matters, as pointed out by Dahl, include criticism of the socioeconomic order and fall within in the domain of freedom of speech, the purpose of which it is to protect disagreement. Let us then say that political issues4 are centrally protected by the freedom of speech. A political issue is a question of the function and operations of the basic institutions of society. To exemplify the idea of the function of an institution; think of the question of how energy should be produced in a society. In a democracy we

grounds of the importance or even inviolability of autonomy. (For an overview, and critique, of this literature, see Brison, 1998.) Other arguments are based on epistemological considerations such as the idea that free speech is the best way to discover truth. The central work in this genre is arguably John Stuart Mills On Liberty (1859). The third kind of argument is illustrated in the following quote:
[F]reedom of expression appears to play an especially fundamental role in a democracy in checking tendencies for government misconduct, facilitating the open debate that is a precondition for rational collective choice and well grounded condence in our own individual judgements, respecting the sovereignty of citizens (rather than governments) in a democracy, and/or treating citizens as free, responsible agents capable of arriving at independent judgements about practical affairs. (Cohen and Fung, 1996, p. xxiv)

In this section I will present some implications of the democratic view of free speech. This, somewhat diverse, way of arguing for freedom of speech stays clear of the question of its ultimate philosophical foundation, instead it identies free speech as a constitutive building block of democracy. This theory of free speech has the advantages of being widely accepted and not resting on controversial philosophical foundations. In this section I will assume that this theory is correct and proceed to spell out its implications for the question of whistleblowing. First, however, I will turn to characterizing the position in more detail. The central idea is succinctly stated by Alexander Meiklejohn: Political freedom is not the absence of government. It is self-government (1996, p. 12) Democracy theorist Robert Dahl presents freedom of expression in the following manner: Citizens have a right to express themselves without the danger of severe punishment on political matters broadly dened, including criticism of ofcials, the government, the regime, the socioeconomic order, and the prevailing ideology. (1981, p. 221) This should be read not as implying that minor punishment is acceptable, but as pointing out something that we should be particularly on guard against. Notice also that this view of what self-rule is about includes deliberations on the socioeconomic system of society. Constitutional jurist Cass Sunstein

Dissolving the Moral Dilemma of Whistleblowing are free within practical constraint to choose our institutions, such as the organizational framework for production of energy, and we must have the power to oversee if these decisions are good. We must also have the authority to correct illegal activity. But, is the information that whistleblowers generally make public, such that it is needed for the people to govern? Is it political speech? To investigate this, let us return to Dahls rather wide characterization of free speech. One reason for casting the net so wide is the following demand from the theory of democracy that it is the people itself that decide, within some important limits, what issues should be decide in a democratic fashion. (See Dahl, 1981, pp. 113114) The citizens of a democracy cannot choose to abolish the general suffrage or restrict freedom of expression without abolishing democracy with it. These are issues that should be taken of the agenda. A further reason for the wide interpretation of the domain of free speech is that restrictions of this domain would also restrict more everyday aspects of free political speech, such as speeches on the campaign trail or newspaper editorials. Let us now turn to the practice of whistleblowing and a look through some of the most famous cases. The question of whether whistleblower speech is political depends, of course, on what whistleblower actually make public. Classic cases such as the BART, Challenger and Ford Pinto cases all involve bodily harm. The more recent World.com and Enron cases involve nancial harm and illegality. Theses scandals have among them resulted in public uproar, Presidential Commissions, court cases, changes in regulations, improvements in infrastructure and safety procedures.5 What these cases have in common is that they are paradigmatic examples of whistleblowing situations and that they have resulted in public debate on policy and in some cases changes in public policy. I take this to indicate that whistleblower speech is political in the sense of Dahls wide characterization. This is, of course, not deductive proof. I must therefore make a qualication, the argument put forward in this paper is only valid to the extent that the speech of the whistleblower qualies as political, i.e. that it is such speech that potentially could change public perception and policy of a problem. There could in principle, be cases of whistleblowing that are not cases of political speech, but the paradigmatic cases are not of that

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kind. It seems to me that theories of applied ethics should be designed to handle the central cases we are interested in, and I will proceed on that assumption. It may be unclear how this relates to the question of harm. Let me make clarication concerning the use of the term harm in this paper and generally in the literature, before we proceed. This term should be understood in a wide sense including bodily harm nancial harm and non-trivial illegality. If harm is understood in the more standard sense of only referring to bodily harm, the debate on whistleblowing becomes rather confused. The project of weighing harms to the public against harms to the workplace becomes incoherent. Organizations cannot suffer bodily harm. Most cases of non-trivial illegality probably concern bodily or nancial harm, but it is also included here to cover cases of e.g. rights infringements. Arguably non-trivial illegality can also be considered harmful, in a very wide sense, to the extent that it undermines the possibility of efcient self-rule. Let us now turn to restrictions of speech. Whistleblowing does not involve enticement to conduct imminent lawless action, quite the contrary, but speech can still be constrained under particular circumstances. Sunstein (2003) partitions possible restrictions into three categories: Content neutral restrictions do not, obviously, depend on the content of speech, but concern issues such as the restrictions on holding political rallies at three oclock in the morning. Viewpoint-based restrictions concern bans on particular political views. These two justications of restrictions are plainly not relevant to the moral dilemma of whistleblowing. However, whistleblowing might be subject to viewpoint neutral restrictions. These are cases where we need to know something about the content of the speech in order to know if it should be protected or not, because we need to weigh different values against each other. The question of the regulation of political advertisements is such a question, where free speech could be in conict with the value of political equality. Two other such interests that should be weighed are the duty of loyalty and the right to free speech. The workplace is a basic institution in society; it is a part of the basic structure in the Rawlsian sense. The basic structure comprises of societies main political and social institutions (Rawls,

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Lars Lindblom At the beginning of Theory Rawls states that justice is the rst virtue of institutions. (1999, p. 3) This is often cited, but what does it mean? It stands for the idea that the rst issue in trying to achieve a just society is to develop just institutions. Due to the immense importance of societys basic structure, the main political and social institutions, the justice of these institutions is of paramount importance. The basic structure supplies the background of individual transactions and it affects us through the socio-economic structure of society with its impact on how we develop our native endowments and on how our lives turn out. The ideal, for Rawls, is to achieve pure procedural justice. This means that our ideal should be a basic structure such that when everybody follows the publicly recognized rules of cooperation, the particular distribution that results is acceptable as just whatever that distribution turns out to be. (Rawls, 2001, p. 54) To achieve this ideal of pure procedural background justice we must consider the design of the institutions that make up the basic structure. One such institution that affects our lives is, then, the institution of the workplace. A Rawlsian perspective on whistleblowing means that we must rst nd out what a just place of work is like how the institution of the workplace should be designed before we can investigate the moral dilemma in full. Rawls understands justice as having three levels; global, domestic and local justice. (Rawls, 2001) Global justice involves international relations. Justice as fairness is a theory of domestic justice and deals with justice within a society. Deliberations on justice start here and work outward to global justice and inward to local justice. Local justice concerns principles applying directly to institutions and associations. (Rawls, 2001, p. 11) In order to give an intuitive sense of the relationship between local and domestic justice Rawls exemplies by discussing ecclesiastical governance. From the perspective of the domestic theory of justice, churches cannot persecute heretics but they can choose bishops in the manner they see t. The question of how bishops should be chosen is an issue for the principles of local justice for churches. The principles of local justice are to be set up for each institution on the basis of their own aims and purposes. Rawls here agrees with the point made by Phillips and Margolis (1999), that in order to do business ethics properly we need to develop a theory of organizational ethics that handles

2001, p. 10). Whistleblowing concerns situations where organizations are in position to do harm to the public. The organization where the whistleblower works is either a corporation or part of (central or local) government.6 I shall call this the institution of the workplace. It is obvious that on any more specic reading of what counts as an individual institution, government and corporations would count as different institutions, but there are two important aspects that they share. First, we must work as employee or employer in one or the other and this means that as little as we can leave society, as difcult it is to stop working. Second, it is clear that the operation of government is a political issue, but it might be less obvious that speaking about a corporation is conducting political speech. What could be more private and natural than transactions in the market? The rst reply to this is that the corporation is a legal construct. Consider the fact that corporations have limited liability.7 More basically, and as we have seen above, the operations of workplaces take place is within the domain of what can reasonably be politically regulated. In other words, whistleblowers speech falls under the description of free political speech as they speak out about one of the basic institutions in society. Therefore, the speech of whistleblowers should prima facie be protected. However, the moral dilemma of whistleblowing now reappears; how should we weigh loyalty and free political speech against each other? There are restrictions of speech in any society, but does whistleblowing, in this context demand such, viewpoint neutral, restrictions?8 In the next section I will attempt to dissolve the moral dilemma of whistleblowing.

Dissolving the moral dilemma John Rawls way of framing the issue of social justice has, since at least the publication of A Theory of Justice in 1971, explicitly or implicitly inuenced most of the political philosophy of the last 30 or so years. I take it that an argument based on his conception of justice also will be relevant to those who subscribe to other liberal approaches to justice. In this section I will take Rawlsian theory as a starting point for discussing whistleblowing.

Dissolving the Moral Dilemma of Whistleblowing the distinctive problems of the workplace. Rawls points out that [o]ne should not assume in advance that the principles that are reasonable and just for the basic structure are also reasonable and just for institutions. (Rawls, 2001, p. 11) However, it must be emphasized that this theory of organizational ethics must be developed within the constraints that are set by domestic social justice. The argument in this paper says that one such constraint is that we should not conceptualize workplaces so that they demand loyalty in the sense that it creates what I have called the moral dilemma of whistleblowing. This is not a thesis in organizational ethics, but in political philosophy. Thomas Pogge describes the upshot of the distinction between domestic and local justice well: we must keep sharply distinct...our subject, how the ground rules of a social system ought to be assessed/designed, from the secondary subject of how actors (individuals, associations, the government) may and should act within an ongoing scheme whose terms are taken as xed. (Pogge, 1989, p. 17) The Rawlsian idea of institutional design means that the question of what institutions there should be comes prior to the question of morality within these institutions. The Rawlsian theory of domestic social justice says as little about the best ways to raise children, as it does about the best way to run a corporation, but it sets the limits within which both endeavours may be carried out. In order to know if rms and other organizations can incur a duty of loyalty on their employees, we must then nd out how to conceive of these organizations. How would they be designed in a just society; what is a just place of work? Does the institution of the workplace demand loyalty in a way that creates a moral dilemma of whistleblowing? In order to answer these questions we must turn to applying Rawlss normative theory, justice as fairness, with its two principles, to the basic structure of society, and in particular to the institution of the workplace. Before doing so, however, we must notice that the design of institutions is not only decided by normative considerations. Socially necessary labour is a necessity that limits all arrangements of the basic structure. (See Rawls, 2001, pp. 162163) We must keep in mind that the function of the institution of the workplace must not be allowed to be undermined by the argument presented. These constraints and the two principles of

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justice will decide the design of the institution of the workplace, the arena where whistleblowing can take place. In their nal formulation the two principles read as follows: (a) Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and (b) Social and economical inequalities are to satisfy two conditions: rst, they are to be attached to ofces and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benet of the least advantaged members of society. (Rawls, 2001, pp. 42 43) These principles concern the distribution of primary goods over a complete life and, most importantly, they are lexically ordered, which means that we cannot trade off our liberties for better opportunities or a higher standard of living. In what follows, we will be concerned with the liberty of free speech and this means that for our purposes we can ignore the more famous second principle. Fair equality of opportunity and the difference principle have important roles in the work of setting up a just basic structure, but these principles are lexically ordered after the basic liberties. Therefore it is not possible to argue for a duty of loyalty on consequentialist grounds, such that it would improve the economy and hence make the least advantaged members of society better off. When one is blowing the whistle, one is practicing political speech and only trade-offs within the basic liberties are allowed.9 This means that we can focus on the rst principle alone. All citizens should have equal basic liberties. To investigate possible trade-offs, we must examine the contents of the rst principle. Notice, however, that these trade-offs are not for the individual, situated within a given set of institutions, to make. We are here dealing with an issue in domestic justice. These are trade-off that we might make while we are attempting to design a just basic structure. The contents of the rst principle are given by the following list:
[F]reedom of thought and liberty of conscience; political liberties (for example the right to vote and

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Lars Lindblom impossible for organizations to have business secrets and the like, and that these secrets are essential to the function of organizations. This would then be an argument that whistleblowing would make impossible the socially necessary labour of organizations. It is hard to see how keeping illegality and other wrongdoing secret would be an essential part of organizations, perhaps with the exception of those institutions involved with national security. In order for such an argument to go through, it does not sufce to show that some rm will go into bankruptcy, rather it must be showed that it undermines the institution of the workplace. It easy to see that some institutions, such as the family and marriage, would be undermined if loyalty could not be invoked. The value of loyalty is constitutive of these institutions. However, when we consider institutions in the economic sphere, it is harder to see the necessity of that value. It is not from the loyalty of the baker that you get your bread. Rather, the foundational value in the economic sphere would be economic reciprocity. This is how a ban on selling a companys trade secrets to the competition can be upheld, while still allowing for the permissibility of whistleblowing. One should be suspicious of the idea that we should base our view of the workplace on the family. Are we prepared to say that since all children in a family should get the same allowance regardless of productive skills, there should be equal wages in rms?10 We can, in absence of empirical studies that show the necessity of loyalty, even in potential whistleblowing situations, conclude that there is no basic liberty that implies a right of employers to expect loyalty, when performing harmful activities, from employees. It is, hence, difcult to see how one could develop the moral dilemma of whistleblowing from these basic liberties. It might be thought that the idea of property is what motivates the demand of loyalty. But, the right to private property entails a right that others respect the owners rights versus the owned goods; it does not entail a right to loyalty.11 Even if we choose to include a basic right to ownership in the means of production in the principles of justice, the right to loyalty would not follow. We can conclude that even if our basic ideas of economic life somehow included a duty of loyalty, in the fashion needed in order to get the moral dilemma of whistleblowing

participate in politics) and freedom of association, as well as the rights and liberties specied by the liberty and integrity (physical and psychological) of the person; and nally, the rights and liberties covered by the rule of law. (Rawls, 2001, p. 44)

Could there be a trade-off that affects whistleblowing? Due process and equality before the law do not imply loyalty. The rule of law does not provide the right materials either. It is obvious that freedom of thought and conscience cannot create such a conict and neither can the political liberties. The freedom of association gives individuals rights to form associations, as well as rights to enter into and exit from them, but it does not give associations rights over their members. But would not such a liberty imply that people have a right to agree to any contract they see t? And would this not mean that employment contracts that rule out whistleblowing should be respected and upheld? First of all, notice that if this story about whistleblowing were correct, then whistleblowing would only be morally problematic if it would be a breach of contract. Loyalty would not play a part; instead we would have an autonomy argument against the permissibility of whistleblowing. So, even if we should allow employees to contract away their freedom of speech in this manner, it would not show that loyalty is an important value in the employment relationship. Second, any plausible theory of political liberty draws some limits on the alienability of rights and the domain of justiable contracts. We are not allowed to sell our vote and contracts to perform illegal acts are generally considered void. What these rather clear-cut examples have in common is that they concern political liberties. If we believe that the right to participate in democratic self-rule is inalienable and contracts that facilitate illegality lack legal merit, then we should not approve of contracts that restrict whistleblowing. Let us then turn to the integrity of the person; perhaps it could give rise to a ban on whistleblowing. We must be able to have some secrets, some privacy, in order to be well-functioning persons. This argument must be somewhat modied, before it becomes applicable. It would be rather difcult to argue that an articial person such as the corporation, or government, would have a need for privacy in the psychological sense. The argument should be that if we allow whistleblowing this would make it

Dissolving the Moral Dilemma of Whistleblowing started, such a duty would not be able to trump a political liberty so basic as free speech. However, one may still wonder if there might not still be a duty of loyalty to the workplace that could survive my argument this far. A critic could argue that a proper reading of Rawls would show that the subject of justice is the whole framework of institutions that make up the basic structure. We can say this, of course, but what would be the point? If free speech takes precedence over loyalty, this means that the effects of the latter institutions must fully cancel out the constraints on free speech. Such a counterargument would come to the idea that there is a duty of loyalty, but this duty should never be allowed to come into effect when its object would need it, such as in potential whistleblowing situations. The institution of the workplace must be organized so that it is compatible with the basic liberties. Therefore, there will be no duty of loyalty in potential whistleblowing situations. On the Rawlsian approach, there is therefore no moral dilemma of whistleblowing. Unfortunately, the prudential question of how to do it without ruining ones life remains.12

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morally preferable alternatives or perhaps even morally required alternatives. (De George, 2006, p. 306)

Therefore, a positive regard for the organization, i.e. loyalty, is justied. The employee should aim to avoid the harm that would be aficted on the organization if knowledge of its actions were to become public. To take the extreme approach is to fail to consider whether there are preferable alternatives to whistleblowing and it shows a disregard for the harms that might result from going public. According to De George a more reasonable standpoint on when whistleblowing is permitted, that considers these potential harms, would require that the following three conditions be fulled: 1. The rm, through its product or policy, will do serious and considerable harm to the public, whether in the person of the user of its product, an innocent bystander, or to the general public. (2006, p. 308) 2. Once an employee identies a serious threat to the user of a product or to the general public, he or she should report it to his or her immediate superior and make his or her concern known. (2006, pp. 309310) 3. If ones immediate superior does nothing effective about the concern or complaint, the employee should exhaust the internal procedures and possibilities within the rm.13 (2006, pp. 310311) Unless these criteria are satised, making information about wrongdoing public would be unjustied. Only then would whistleblowing be permissible. De George has two further conditions that regulate when whistleblowing is mandatory, but as they are not directly relevant to the issue of permission, they have been relegated to a footnote.14 It is not clear, however, that these three criteria will lead the employee to look for further alternatives in the potential whistleblowing situation than other alternative approaches. In comparison with the view propounded here, it even forecloses on one option; going public directly. To say that going public is permissible, does not commit one to saying that going through organizational channels is impermissible. De George is thus wrong in saying that the

De George and the justification of whistleblowing The position outlined here may be seen as an expression of what Richard De George has labelled an extreme view (2006, p. 306); it comes to saying that that there is no duty of loyalty that can restrict whistleblowing. There is no moral dilemma of whistleblowing. By discussing how loyalty comes into play in De Georges criteria of when whistleblowing is permitted and what is left of them when loyalty goes, we can get a clearer understanding of why just discarding loyalty in potential whistleblowing situations does not lead to an extreme position. The problem of this position is the following:
This extreme position has much to recommend it. But it is extreme because it makes the right of free speech always overriding, and it fails to consider the harm done to ones rm or fellow workers by the usual kind of whistleblowing. In denying any obligation of loyalty, it implicitly denies any consideration of the harm that ones actions may do to those with whom one is associated, and fails to consider whether there are

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Lars Lindblom blowing the whistle into consideration. The rst criterion, without the bar raised, could remain as a general consequentialist rule, even if considerations of loyalty are rejected, and the charge of extremism would be weakened considerably. We could then say that all harms are important, not just harms to the organization where one happens to be employed. Let us now turn to the second and third conditions. Why is exactly this the way of showing loyalty? Why not, say, go directly to top management? De George presents three general arguments. First of all, reporting ones concerns is the most direct, and usually the quickest, way of producing the change the whistle blower desires. (De George, 2006, p. 310). What could be more effective than speaking to the nearest person in charge when trying to stop some illegality from happening, and what could be more reasonable as a next step than going to that persons boss? Second, it is a good way of taking organizations interests into account; it gives them several chances to improve their behaviour. The argument from loyalty also supports the requirement that the rm be given the chance to rectify its action, procedure, or policy before it is charged in public. (De George, 2006, p. 310) Here loyalty comes into play. Third, De George adds that whistleblowing does harm to the rm, harm in general is minimized if the rm is informed of the problem and allowed to correct it. (De George, 2006, p. 310) This argument also seems motivated by the demand of efcient harm-minimization. As we have seen above the loyalty perspective says that the employee should assign extra weight to harm to the organization. The goal of avoiding harm to the workplace is different from the goal of minimizing harm in general. To argue against loyalty is not to argue against the position that it is important to minimize harm. We can without contradiction say both that harmful consequences should be minimized, and that harms to ones workplace should not be given extra weight. However, notice that even if the loyalty-based argument is disqualied, the three criteria could remain, if they are efcient means to the goal of minimizing harm. We could then conclude that even if loyalty is discarded there is still room for something like all three criteria. The view that we do not have a duty of loyalty to the organization where we work does not seem very extreme at all.

extreme position forces us to disregard the question of whether there are any preferable alternatives. It is important to see that these conditions concerning the duty of loyalty only make sense if we are concerned with loyalty to the organization. If we read the criteria as a way of discharging our duties of loyalty to our families or co-workers they make little sense. In what sense would it protect our colleagues to talk to someone else e.g. middle management? Principles like, only blow the whistle if it does not hurt your colleagues careers or only blow the whistle when you can make reasonably sure that you will not be retaliated against in a way that will affect your family would seem more appropriate for such an interpretation. In other words, De Georges criteria are best understood as a solution to, what I have called, the moral dilemma of whistleblowing. What role, then, does loyalty to the organization play in the rst criterion? De George motivates it on the plausible ground that whistleblowing will do damage to the rm and argues that a harm must be offset by a good at least as large or larger, but then, to be on the safe side, he raises the bar so that what is needed is a serious and considerable harm to the public. There are three arguments for this: slight harms with large aggregate effects should not count, whistleblowing must be understood as a heroic act lest its efciency would be reduced, and the employee might make mistakes so there should be a safety margin. (See De George, 2006, pp. 308309) This may after all seem basically like a consequential condition: Make sure that the good effects of your actions outweigh the bad effects. Loyalty enters the picture here for the reason that we are to make its subjects interests ours and this species the consequences we are to consider before blowing the whistle. The ban on taking small harms into consideration and the safety margin argument would only seem justied if we nd it more important to protect the organization than the public. This is where loyalty gets its bite. Harms to the object of loyalty, i.e. the organization, are more important than harms to other people or organizations that are not owed the same consideration. The argument concerning heroism seems to be entirely motivated by efciency concerns. If my interpretation here is correct it seems to follow that if loyalty goes, we are free to take other, or perhaps all consequences of

Dissolving the Moral Dilemma of Whistleblowing However, there are good reasons to think that efciency considerations cannot motivate the second and third criteria. Reading them as a set of general rules, it seems implausible that they would be more efcient than going public directly. It surely cannot be the case that it is always most efcient to run through the organizational hierarchy. Consequently, we cannot say that harm is minimized as a rule by rst alerting the organization. The loyalty reading here would mean that even if it were inefcient to run through organizational channels before going public, we should still do so. This would seem extreme from most perspectives. If we are interested in the consequences of whistleblowing, we should turn to a general consequentialist principle here as well. In other words, if we drop loyalty, but retain the implicit concern for consequences in De Georges criteria, we should ask before blowing the whistle whether the good consequences of going public outweigh the bad. We have now reached the conclusion that whistleblower speech is permitted when there is on balance more good consequences than bad. Direct consequentialism is, however, a rather counterintuitive criterion of justied speech. It would imply, for instance, that if your criticism of the government has slightly bad consequences, you would have been unjustied in participating in politics. Generally we tend to think, to use Waldrons apt phrase, that we have a right to do wrong (1981, p. 21) when it comes to political speech. The important issue, then, is what an appropriate view of the consequences would be. To begin with, consequences need not be evaluated on a case-to-case basis; we could focus on the practice of whistleblowing. It is quite easy to conceive of situations where going public does not help in that particular case, but where the act of blowing the whistle may be a part of a more widespread phenomenon that stops whatever non-trivial wrongdoing that is the case. For instance, think of a situation where going public does not lead the implicated company to stop polluting the lake not far from where you live, but it helps stopping it from polluting other lakes in the future, or stopping other rms from polluting other lakes. To take part in such a practice might well over time lead to less serious wrongdoing, whereas a single act of whistleblowing may fail to have any direct effect on the issue at hand.

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This practice account can be seen as an aspect of the general account of free speech that was provided above. If we are to have self-governance, then political speech must be free. Only the risk of imminent lawless activity and threats to democracy itself should be considered harmful enough to outbalance the desirable consequences of free speech. In other words, to argue against what De George calls the extreme view implies a commitment to argue against a pillar of liberal democracy. This must be awkward company to keep for a moderate position. When we are considering the permissibility of speech in a potential whistleblowing situation, the best way to take the consequences into consideration is to give blanket permission. To give such permission amounts to saying that the employee has a right to blow the whistle. Such a right entails that employers, or for that matter co-workers or the state, are not allowed to interfere with the whistleblower and his or her speech. This point concerning rights is well put by Waldron:
The cutting edge of the claim that P has a right to do A is the correlative claim that other people are morally required to refrain from interfering with Ps performance of A. If P has a right to do A, then it follows that it is wrong for anyone to stop P from doing A. Thus the assertion, I have a moral right to do A, is entirely appropriate when my act is challenged in the sense that somebody threatens to interfere coercively. (Waldron, 1981, p. 29)

On such an account, the moral mistake most probable to occur in the course of whistleblowing is not that whistleblowers speak without justication, but that other parties interfere with them. Disloyalty is not a valid reason to re a whistleblower. If there is a need for a rule of thumb concerning the moral permissibility of whistleblowing, our best replacement for De Georges criteria would be to return to Jubbs denition and say that for whistleblowing to be morally permitted, there must be a potential case of whistleblowing. To say that the whistleblower has a right to speech is not to say that he or she has a duty to blow the whistle. The extreme position on the permissibility of whistleblowing does not imply a disregard of harm. It is in fact consistent with making a full investigation and evaluation of all possible

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Lars Lindblom Let me also note what has not been my conclusion. First of all, I do not argue that loyalty to companies is a category mistake or impossible, but rather that even if there is such loyalty it has lower priority than free speech. Second, I have not argued that loyalty lacks value. When loyalty is expressed in situations that do not conict with the free political speech, or when loyalty is essential for the continued existence of an important institution, there is nothing in this argument that would disallow it. We can still be loyal to our families. The point is that loyalty should not be used as a principle of institutional design in the case under consideration. Third, I have not argued that employees have a duty to blow the whistle. Fourth, from my argument that free speech takes precedence over loyalty it does not follow that one should never talk to ones superiors before going public. There might be, and are probably often, efciency considerations that speak in favour of doing just this. The basic point I have been trying to make is that the right to free political speech should not be restricted by the value of loyalty. Furthermore, I have not showed that there cannot be any justication for restriction on whistleblower speech. My point has been that the widespread idea that loyalty would provide such justication is mistaken. Other issues concerning whistleblowing remain even after we have agreed that there is no moral dilemma of whistleblowing. If there is a right to blow the whistle, then others are morally obligated to refrain from interfering with the whistleblower. How should rms deal with whistleblowers? It seems to me that organizations are in more need of moral guidance than the average whistleblower. It seems clear that no one should be dismissed for using his or her right to free speech, but other difcult questions remain. For instance, what should be done if colleagues refuse to work with the whistleblower? Are there any morally acceptable reasons for not promoting whistleblowers on exactly the same ground as other employees? Consider the case where the whistleblower could become the next CEO. Such questions are seldom asked in the literature. My guess is that the reason for this is that we have been too busy with the wrong agent. In cases of whistleblowing, the party in need of moral guidance is not the employee but the employer.

harms before going, or not going, public. Furthermore, this permissive stance is founded on a moral argument that takes into consideration the gains and losses of restricting speech. This is not showing a disregard concerning harms. In other words, the extreme position is not extreme.

Concluding remarks: whistleblowing as a moral question I have argued that cases that satisfy the denition of whistleblowing also full a rather uncontroversial account of political speech; when we have whistleblowing we have political speech. I have tried to show that according to a Rawlsian view of justice, there is no such thing as the moral dilemma of whistleblowing. In a potential whistleblowing situation, there is no need for further loyalty conditions on the permissibility of whistleblowing, because even if the institution of the workplace incurs a duty of loyalty the right to free speech overrules this duty. In such situations whistleblowing is permissible. It might still be the case, of course, that employees still feel a sense of loyalty when they are considering blowing the whistle. This is where the business ethicists should assist. I have tried to make plausible that one way we should not go about addressing this problem is by devising theories or rules of thumb that are built around the idea of a moral dilemma between loyalty and free speech. I have also argued that we should not design, or conceptualize, institutions to conict with our basic liberties. This position should not be considered extreme, as it is consistent with arguments that are considered to settle the issue in favour of free political speech in all other public spheres. The argument, however, is not only relevant for Rawlsians. My argument from Rawls made use of elements from his theory that could be taken to describe a more general form of theories of justice: rst, the idea that justice is the rst virtue of institutions. Second, that pure procedural justice is a desirable ideal. Third, that the basic liberties have a very high value. These are features that are shared by many other theories of justice. Anyone who adheres to such a notion of justice should, I would like to argue, agree to the conclusion that there is no moral dilemma of whistleblowing.

Dissolving the Moral Dilemma of Whistleblowing Acknowledgements

Some thanks for suggestions, help and encouragement are due. First of all to Niklas Mo ller who read the rst and the penultimate draft of this article and caused its writing and re-writing. Others that have been of much help and should be thanked are Elin Palm, Anders J. Persson, Sven Ove Hansson, Till Gru ne, Kristina Palm and her colleagues at Work Science at KTH. Without the support and encouragement of my mother, Anette Lindblom, this paper would not have been written.

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Notes
The exact specications of the different terms are not of great importance to my main argument. There are, however, some problematic readings of the denitions that readers of this paper have alerted me to that perhaps should be mentioned in order to avoid misunderstanding. For instance, if public record is interpreted as the records of a public authority, then alerting the press does not satisfy the denition. A likewise narrow reading of external entity can create the same problem. Another issue that has come up is whether non-trivial illegality and other wrongdoing could be reduced to just plain wrongdoing. Some readers have also questioned if alerting a small magazine with no actual chance of rectifying the situation qualies as whistleblowing according to this standard. I do not think these objections are very difcult to handle for Jubb. One aspect of Jubbs denition may seem surprising, why must this act of disclosure be non-obligatory? It seems to settle the moral issue too quickly. The reason for this is that we want to exclude the making public of information by professionals, e.g. accountants, whose role it is to make information of this type public. This is similar to how we do not commend police ofcers for civic duty when they apprehend criminals. 2 Neither does another interpretation that Nuyen mentions t the debate. The term loyalty originated from loi, a French term for law. If we take this to imply that loyalty means adherence to law, it seems that the most loyal act that the whistleblower could perform, in cases of illegality, would be to alert the authorities. 3 This argument could almost seem too strong; it seems to imply a duty of speech. Freedom of speech, however, is but a necessary condition for democratic rule. It would no doubt be benecial if citizens would have this virtue of speaking out against misdeeds, but to
1

enforce such a duty would be in conict with the general liberal democratic ideal of granting citizens a private political sphere. 4 Note that saying that something is a political issue does not entail that the body politic therefore should regulate it. For instance, the question of externalities is on this account a political question, but this allows for Coaseian solutions of such problems. (Coase, 1960) In fact, it seems that the information that the whistleblower makes public must be public for a market solution to externalities along the line Coase envisions to actually work. 5 Notice that these examples, except the standard Challenger case (for this see Whitbeck, 1998, pp. 133 155) can be found in De Georges chapter on the permissibility and obligations of whistleblowing. The Silkwood and Brockovich cases are also mentioned. (See De George, 2006, pp. 298322) I take it that De George is the central gure in the debate on whistleblowing, and if his characterization of the subject matter of whistleblowing falls under the heading of political speech as dened above, then it is reasonable to conclude that whistleblower speech is political in the relevant sense. 6 Some work in neither type of organization, but my contention is that this could be claried in the same manner as when I discuss the rm below. 7 See Bowman, 1996, for a political history of the evolution of the corporation in American law and political thought. 8 It is important to keep in mind that in this paper I am considering restrictions based on considerations of loyalty. This is not what motivates restrictions on speech, when it comes to business secrets, libel or restrictions on free speech during wars and other conicts for security reasons. 9 Rawlss argument, in a nutshell, for the basic liberties is based on the idea that these liberties are grounded in the two moral powers of citizens: a sense of justice and a capacity for a conception of the good. Freedom of thought and equal political liberties are preconditions for citizens being able to develop and exercise the moral powers in judging the justice of the basic structure and policies within it. 10 Notice that there may be other arguments for equal wages. My point here is that an analogy with the family would not very convincing. 11 Ownership concerns issues like rights to possession, use, managing, gaining income, capital, transmitting, security in holding, absence of term and a right to the residual. It can also imply liability and prohibitions on harmful use. For a classic analysis of ownership, see , 1961. Honore

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Duska, R.: 1988, Whistleblowing and Employee Loyalty, in T. L. Beauchamp and N. E. Bowie (eds.), Ethical Theory and Business, 3rd edn. (Englewood Cliffs: Prentice Hall) pp. 335339. A. M.: 1961, Ownership, in A. G. Guest (ed.), Honore Oxford Essays on Jurisprudence (Oxford: Oxford University Press) pp. 107147. Jubb, P. B.: 1999, Whistleblowing: A Restrictive Denition and Interpretation, Journal of Business Ethics 21(1), 7794. Martin, M. W. and R. Schinzinger: 1997, Ethics in Engineering 3rd edn. (McGraw Hill, New York). Meiklejohn, A.: 1996, [1961], The First Amendment is an Absolute, in J. Cohen and A. Fung (eds.), Constitution, Democracy, and State Power: The Institutions of Justice II Democratic Government 1: Speech and Elections (Cheltenham: Edward Elgar) pp. 324. Mill, J. S.: 1859, On Liberty, in On Liberty and Other Essays (Cambridge: Oxford University Press, 1998). Muirhead, R.: 2004, Just Work, (Harvard University Press, Cambridge). Nuyen, A. T.: 1999, The Value of Loyalty, Philosophical Papers 28(1), 2536. Phillips, R. A. and J. D. Margolis: 1999, Toward an Ethics of Organizations, Business Ethics Quarterly 9(4), 619638. Pogge, T. W.: 1989, Realizing Rawls (Cornell University Press, Ithaca) Rawls, J.: 1999, A Theory of Justice, Revised edition (Oxford: Oxford University Press). Rawls, J.: 2001, Justice as Fairness: A Restatement (The Belknap Press of Harvard University Press, Cambridge) Sunstein, C. R.: 2003, Why Societies Need Dissent (Harvard University Press, Cambridge) Waldron, J: 1981, A Right to Do Wrong, Ethics 92(1), 2139. Weiss, J. W.: 2006, Business Ethics A Stakeholder and Issues Management Approach 4th edn. (Thomson SouthWestern, Mason). Whitbeck, C.: 1998, Ethics in Engineering Practice and Research (Cambridge University Press, Cambridge)

For some frightening stories on what happens to whistleblowers see Martin and Schinzinger, 1997, pp. 248125. 13 These criteria have also caused concern among audiences that I have presented this paper to. Considering the rst criterion it has been argued that it lacks a reference to the employees of the rm. It has also been questioned on the ground that if we would happen to consider single acts of tax evasion something that does not cause serious and considerable harm, then blowing the whistle on such instances of breaking the law could never be justied. I am not sure that this creates any insurmountable problems for De George. 14 They are: 4. The whistleblower must have, or have accessible, documented evidence that would convince a reasonable, impartial observer that ones view of the situation is correct and that the companys product or practice poses a serious and likely danger to the public or to the user of the product. (De George, 2006, p. 312) 5. The employee must have good reason to believe that by going public the necessary changes will be brought about. (De George, 2006, p. 313)

References
Beauchamp, T. L. & Bowie, N. E.,: 1988, Ethical Theory and Business 3rd edn. (Prentice Hall, Englewood Cliffs). Bok, S.: 1988, Whistleblowing and Professional Responsibility, in T. L. Beauchamp and N. E. Bowie (eds.), Ethical Theory and Business, 3rd edn. (Englewood Cliffs: Prentice Hall) pp. 292299. Bowman, S. R.: 1996, The Modern Corporation and American Political Thought: Law, Power, and Ideology (Pennsylvania State University Press, University Park) Brison, S. J.: 1998, The Autonomy Defense of Free Speech, Ethics 108(2), 312339. Chryssides, G. and J. Kaler: 1996, Essentials of Business Ethics (McGraw-Hill Book Company, London). Coase, R. H.: 1960, The Problem of Social Cost, Journal of Law and Economics. 3(1), 144. Corvino, J.: 2002, Loyalty in Business?, Journal of Business Ethics 41(12), 179185. Dahl, R. A.: 1981, Democracy and its Critics, Reissue edition (Cumberland: Yale University Press). De George, R. T. : 2006, Business Ethics 6th edn. (Prentice Hall, Upper Saddle River).

Department of Philosophy and the History of Technology, Division of Philosophy, Royal Institue of Technology, Teknikringen 78B, Stockholm, 100 44, Sweden E-mail: lars.lindblom@infra.kth.se

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