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First-Amendment Defenses Against Whistleblowers

By R. Scott Oswald and David Scher

The First Amendment prohibits restrictions on speech, including compelled speech. However, mandatory disclosures have long been the linchpin of several major regulatory schemes. For example, publically traded companies are required to share information on the financial health of the companies with investors and with the SEC. Likewise, pharmaceutical companies are prohibited from advertising that their drugs provide certain medical benefits when those benefits have not been approved by the SEC.

Enter the whistleblower, who comes to believe that his company is not complying with certain provisions of regulatory schemes that would require it to disclose (or refrain from disclosing) information about the company's business, its products, or its services. The whistleblower discloses what he believes to be a violation and, shortly thereafter, is terminated by his company.

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