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Whistleblowers AC

High probability
advantage
Since September 11 judicial protections for reporters have been eroding rapidly
Koningisor, Cristina 2018 [First Amendment Fellow @ The New York Times; JD from Yale Law
School] “The De Facto Reporter’s Privilege.” The Yale Law Journal, 2018, 93. ekl

This shift in interpreting Branzburg is not the only way that judges are withdrawing protection.
There are also indications that judges today are more willing to find reporters in contempt for
refusing to reveal confidential information.366 During his 2007 testimony before the House
Judiciary Committee, media lawyer Lee Levine stated that he had not found a single example of
a reporter being held in contempt for refusing to disclose a confidential source in federal court
between 1976 and 2000; by contrast, “at least a dozen” were held in contempt between 2001
and 2007.367 Moreover, when reporters are jailed for contempt, judges appear more willing to
impose lengthy terms of confinement. Prior to Branzburg, judges rarely jailed reporters for more
than a month, often ordering reporters jailed for mere days.368 By contrast, from 2001 to 2007,
federal appeals courts issued a series of harsh punishments for reporters found in contempt,
with “each court imposing prison sentences on reporters more severe than any previously
known in American history.”369 In 2007, for example, videographer Joshua Wolf spent seven
months in jail for refusing to turn over unpublished footage from a G-8 protest.370

There is also evidence that judges today are more willing to impose very large fines. In 2005, for
example, five reporters were held in contempt for refusing to reveal the identities of
confidential sources, and their respective employers paid $750,000 to avoid the imposition of
judicial sanctions.371 In 2008, a judge ordered a reporter to pay up to $5,000 a day for a week
for refusing to disclose a confidential source, and took the “unprecedented step”372 of barring
anyone else from helping to pay the reporter’s fines.373 By contrast, a federal district court in
1980 fined CBS one dollar per day for refusing to comply with a court order to surrender
unpublished video and audio tape.374 Commenting on this case, Wright and Graham observed
that “[o]ne may suspect that some . . . charade is being enacted when a wealthy television
network that refuses to produce material needed by a criminal defendant on grounds of
privilege is subjected to civil contempt with a sanction of a $1 per day fine.”375 And, at least
anecdotally, the harshest penalties today far exceed the costliest fines imposed prior to
Branzburg, even accounting for inflation.376

Faced with this evidence, some members of the press have concluded that they can no longer
rely on the judiciary for protection. In a 2006 New York Times column, David Carr observed,
“Within the news business, there is a consensus that the roof is caving in on the legal
protections for working journalists.”377 Some legal scholars agree. In 2014, David Pozen noted
that in the wake of September 11, courts have “pulled back on the reporter’s privilege,”
particularly in the national security context.378a

The Trump administration makes leaks especially key


Koningisor, Cristina 2018 [First Amendment Fellow @ The New York Times; JD from Yale Law
School] “The De Facto Reporter’s Privilege.” The Yale Law Journal, 2018, 93. ekl
This tally is bound to increase. Recently, Attorney General Sessions announced that he plans to
“review” the DOJ guidelines governing press subpoenas.386 There is also evidence that the
government has begun to rely more heavily on other legal tools to identify leakers, such as
search warrants, warrants issued by the Foreign Intelligence Surveillance Court, and border
searches of reporters’ electronic devices.387 Such efforts may have a chilling effect on potential
sources but fall outside of the DOJ guidelines regulating subpoenas to the press.

In addition, the executive branch has increased the amount and type of information it classifies,
which in turn has had an impact on the reporters who receive and publish classified information.
Nearly twice as many documents were classified in 2004 as in 2001.388 Simultaneously, the
declassification process has slowed: 204 million pages were declassified in 1997, compared with
28 mil- lion pages in 2004.389 This over-classification makes it more likely that sources sharing
information with the press will be “leaking” secret information, which in turn increases the
chance of conflict between the press and the executive.390

Finally, recent administrations have been more aggressive regarding enforcement. The Obama
Administration prosecuted nine cases involving whistle- blowers and leakers—three times as
many as all past administrations combined.391 Attorney General Sessions announced in August
2017 that the Department of Justice is pursuing three times as many leak investigations as the
number of investigations open at the end of the Obama Administration.392 In November, he
testified before Congress that the government had twenty-seven leak investigations open.393
And a September 2017 memo from National Security Advisor H.R. McMaster requested that the
head of every federal agency organize a training on the “importance of protecting classified and
controlled unclassified information, and measures to prevent and detect unauthorized
disclosures.”394 Such efforts “remind[] us of the responsibilities that come with access to, and
penal- ties for unauthorized disclosure of, classified information,” the memo continued.395

The Trump Administration has also demonstrated an increased willingness to penalize


uncooperative reporters in ways short of invoking legal proceedings. President Trump has
engaged in a range of efforts to deny access to specific journalists or outlets as a form of
political retaliation.396 He has also demonstrated substantial animosity toward the press more
broadly.397

Such actions may damage the credibility of the press and undermine longstanding democratic
traditions and norms.398 But they also raise the specter that these smaller threats are merely
the precursors to more aggressive action against the press, such as the selective enforcement
of laws criminalizing the publication of classified information or the selective subpoenaing of
reporters as a means of silencing political dissent. Indeed, former FBI Director James Comey
disclosed that in a February 2017 meeting, President Trump criticized leaks to the news media
and asked Mr. Comey to consider imprisoning reporters for publishing classified information.399
Such an action would break with a century- long tradition of declining to prosecute reporters for
receiving or disseminating classified material.400

Rising subpoenas chill journalism – the best proximate empirics


Jones 09 – Jones, RonNell Andersen. [Lee E. Teitelbaum Endowed Chair and Professor of Law,
S.J. Quinney College of Law, University of Utah] “MEDIA SUBPOENAS: IMPACT, PERCEPTION,
AND LEGAL PROTECTION IN THE CHANGING WORLD OF AMERICAN JOURNALISM.” Washington
Law Review 84 (2009): 102. ekl

First, if the law-in-action question that Congress needs to answer is whether the existence of a
federal shield law for reporters would have value to the newsgathering operations of the
targeted population—and therefore to the general public that receives the news that this
population produces—the answer appears to be yes. The breadth and depth of the qualitative
and the quantitative data demonstrate that both the threat and the reality of subpoenas alter
behaviors in newsrooms of all sizes. Although the data suggest that the mere existence of a
shield law does not spare newsrooms from all costs associated with subpoenas, a shield law can
go a substantial distance in alleviating newsroom concerns. Moreover, a clearly worded, easily
invoked shield law would go a long way toward protecting newsrooms from subpoena-induced
interference with newsgathering, particularly if coupled with an education campaign that
informed both attorneys and journalists of the protection’s contours. Without question,
members of the media are keenly aware that their legal climate is changing for the worse and
believe that the wave of recent cases has emboldened subpoenaing attorneys and discouraged
potential sources. Even if other social forces—like the general decline in public respect for the
media—have contributed to the willingness of attorneys to issue subpoenas to members of the
media, a well-publicized federal reporter’s shield would send a more unified message on the
question of media subpoenas and cause at least some attorneys to rethink their views of media
susceptibility to them.

The strength of respondents’ perceptions that subpoenas are on the increase, that attorneys are
more willing to subpoena them, and that their subpoena risk is up, combined with perceived
consequences of these trends, suggests strongly that the recent wave of losing cases has led to
something of a nationwide chill. Indeed, the overwhelming sentiment expressed by survey
respondents is fear. They fear that their already struggling businesses will not have the financial
or institutional wherewithal to challenge subpoenas—particularly if the chances of prevailing
are slim—and that the inevitable result is a very practical limitation on the watchdog function
that most newsroom leaders still see as a vitally important aspect of their work. Subpoenas are
only one piece of this complicated puzzle, but the survey results suggest they are a critical one,
largely because the recent surge of losing cases seems to have steeled attorneys and made
them more willing to subpoena the press, while spurring a wave of terror in journalism that is
leading even those who have not been subpoenaed to limit their news coverage. Nearly all of
the participants operated in a state with some form of reporter’s privilege, suggesting that the
absence of clarity as to federal protection is the source of much of this concern. Closing the
circle with a federal legislative shield could be expected to have ramifications outside the realm
of federal courts. It might well change the tenor of the legal environment and have the larger
societal effect of eliminating some of the costs to newsgathering that are now experienced by
those who have state-level protection that does not provide fully effective prophylaxis because
of the perceptions of acceptability that are fostered by the absence of federal protection. It also
almost certainly would have a direct impact on the working journalists who cannot now know,
at the time that they engage in newsgathering, whether a future subpoena related to that
newsgathering might be issued in state court, where they ordinarily are protected, or in federal
court, where they increasingly are not.
Confidential sources drive groundbreaking reporting
Handman 14. Handman, Laura R. [“Partner, Davis Wright Tremaine LLP. Ms. Handman has
defended a number of media organizations in response to subpoenas for disclosure of sources
and authored amicus briefs on behalf of media organizations in appeals involving reporter's
privilege.”] 2005 “Protection of Confidential Sources: A Moral, Legal, and Civic Duty.” Notre
Dame Journal of Law, Ethics & Public Policy. Volume 19, Issue 2 ekl

Some of our country's most significant political stories have come to light through the efforts of
confidential sources. In the Pentagon Papers case, for example, the press published highly
classified documents concerning the governmental policies that entangled the United States in
Vietnam, despite the fact that the documents were "feloniously acquired" by an unnamed
source. In the Watergate investigation, reporters Woodward and Bern- stein received and relied
upon information regarding the misuse of presidential campaign funds from a confidential
source 6 known as "Deep Throat."

In the years since Watergate, some of the biggest stories involving government corruption or
deception have resulted from information provided by confidential sources, involving such
topics as how the FBI's Surreptitious Entry Program routinely broke into people's homes and
offices; how the United States masterminded a 1953 coup d'etat in Iran; how a sitting U.S.
senator was potentially abusing his authority,7 the Iran-Contra "arms for hostages" deal; and
the Anita Hill story that almost derailed a Supreme Court nomination.' One empirical study
found that forty-two percent of former federal officials who occupied policymaking positions
stated that they had provided confidential information to the press during their tenure in
office.9

More recently, the reporters who broke the Abu Ghraib prison scandal received photographs
and other information from unidentified sources.10 After the initial stories were published,
other soldiers, who also requested anonymity, came for- ward with more evidence." Later,
unidentified sources within the military provided a reporter with internal records from the
Pentagon indicating investigations in some seventy-five cases of detainee abuse, including
twenty-seven abuse cases involving deaths; at least eight believed to be homicides. 2 Without
the press's reliance on anonymous sources, the Abu Ghraib prison abuses would not have been
reported to the public.

Reporters also rely upon confidential sources to investigate important stories outside the
political arena. For example, reporters relied upon confidential sources in their investigation of
the Enron accounting fraud scandal.' 3 Recent stories detailing how cigarette companies
manipulate nicotine delivery in their products and how such companies have suppressed
information regarding the health risks of tobacco were made possible only by the transmission
of stolen documents that the companies claimed were subject to a judicial protective order.'4 A
Pulitzer Prize-winning series of articles reported on more than 230 fertility fraud stories,
exposing cover-ups, intimidation of clinic employees, and hush money payments. As a result, the
clinic in question closed, families learned the true biological origins of their children, and the
American Medical Association issued new guidelines for fertility clinics. Although all of the
individuals quoted in the stories were identified, the reporter relied upon clinic records she had
obtained from unidentified sources.15 Reporters may not have been able to provide the public
with these kinds of groundbreaking stories without the ability to promise confidentiality to their
sources.16

Investigative journalism spurs legislative change on a litany of structural


violence issues
Wihbey 13 (John, assistant professor of journalism and media innovation at Northeastern
University, Six powerful examples of journalism’s importance: Recent civic impacts of the press,
March 4, 2013, https://journalistsresource.org/tip-sheets/reporting/six-shining-examples-
power-journalism-recent-civic-impacts-of-the-press)

Journalism’s crucial role in helping democracy function is sometimes forgotten amid the clamor
of partisan debate and the messy nature of the news business. But anyone who stops to
examine recent examples of journalistic success — and the substantial civic impacts of various
news media investigations — cannot help but be impressed by the vital role of the press. Six
examples from the past year that show journalism’s impact are enumerated below. These
stories helped root out corruption, create better laws and practices, and changed the way we
live for the better. They make for a powerful reading list, whether for average citizens, aspiring
journalists or anyone concerned with the press and public policy. As many journalistic outlets
continue to struggle financially — and the news media contracts as an industry, leaving many
statehouses, public agencies and local governments under-examined — there can be little
doubt that many problems in society might be forgotten were it not for some smart, persistent
and courageous news professionals. These stories speak to that truth. Although the Internet can
help as an investigative tool and platform for engaging the public, it takes professional reporters
to initiate and follow-through on everything from interviews to document requests. Further,
turning raw data and information into easily digestible knowledge for public consumption —
putting it into narrative story form or making it clear through visual means — takes painstaking,
creative work. Of course, it takes the will of public officials to act on these investigations and
formulate concrete policy responses. Below are the six finalists for the 2013 Goldsmith Prize for
Investigative Reporting, awarded by the Shorenstein Center on Media, Politics and Public Policy
at the Harvard Kennedy School. Northeastern University media critic Dan Kennedy, one of the
prize jurors, noted at his blog, “At a time when news organizations are struggling to survive, it
was heartening to see so much good work.” The civic impact of each story is provided below
each case; those descriptions were furnished by each reporting team. “Cheating our Children”
The Atlanta Journal-Constitution By Alan Judd, Heather Vogell, John Perry, M.B. Pell The Atlanta
Journal-Constitution’s year-long series on irregularities in standardized testing revealed that
pressure for ever-higher test scores had led to apparent cheating by teachers and school
administrators across the nation. The newspaper’s reporting, based on its unprecedented
analysis of tens of thousands of test results, initiated a national conversation about the long-
term effects of the accountability provisions of the federal No Child Left Behind Act. Impact: It
took three years of relentless coverage by the Atlanta Journal-Constitution, followed by a state
investigation, to get school officials to acknowledge that their system had engaged in the worst
case of adult-directed school cheating ever detected in the United States. The series prompted
numerous large school districts across the country — from Baltimore, Md. to Mobile, Ala. to
Denver, Colo. — to reevaluate test scores. Investigations were launched in other cities; these
may ultimately result in criminal charges. “The iEconomy” The New York Times Charles Duhigg,
Keith Bradsher, David Barboza, David Segal and David Kocieniewski This series revealed the
harsh, at times deadly conditions under which Chinese workers assembling iPhones and iPads
live and work; the low pay and high turnover at Apple’s retail stores; the lengths to which Apple
went to reduce its tax bill, and the shortsightedness of its conclusion that Apples couldn’t be
manufactured in America. Impact: As a direct result of the Times series: More than a million
workers at the Chinese factories that make Apple’s iPhones and iPads got 25 percent raises.
Their working conditions vastly improved after Apple’s supplier plants were opened to outside
inspections for the first time. Apple tripled its corporate social responsibility staff, re-evaluated
how it works with manufacturers, asked competitors to help curb excessive overtime in China,
and reached out to advocacy groups it once rebuffed. It publicly identified its suppliers for the
first time. Apple announced it would invest $100 million to manufacture some computers in the
United States. Other computer companies like Hewlett-Packard and Intel began to rethink how
they deal with overseas suppliers. Congress opened an investigation into technology companies’
tactics to reduce their tax bills. “Playing with Fire” The Chicago Tribune By Patricia Callahan, Sam
Roe and Michael Hawthorne The Chicago Tribune’s investigative series revealed how a
deceptive, decades-long campaign by the chemical and tobacco industries brought toxic flame
retardants into our homes and into our bodies, despite the fact that these dangerous chemicals
don’t work as promised. Impact: As a result of the Tribune investigation, the U.S. Senate revived
toxic chemical reform legislation and California moved to revamp the rules responsible for the
presence of dangerous chemicals in furniture sold nationwide. The paper’s investigation
prompted two hearings in the Senate and one in the California state house; the federal
Environmental Protection Agency and the Consumer Product Safety Commission move to
increase safeguards; an industry front group touting flame retardants shut down; a retailer
halted sales of a baby mattress containing chemicals linked to cancer; and California announced
it would overhaul its rules, which were the de facto national standard. “The Shame of the Boy
Scouts” The Los Angeles Times By Jason Felch, Kim Christensen and Times staff The Los Angeles
Times made public thousands of files documenting sexual abuse of Boy Scouts by their troop
leaders, resulting in reforms that will help ensure the protection of children. The Boy Scouts of
America has launched a comprehensive review of the files, with a promise to report to law
enforcement any cases not previously disclosed. The Scouts also apologized to victims of abuse
and offered to pay for their counseling. Impact: Within days of the Times disclosure of the long-
suppressed Boy Scouts’ sexual abuse archive, more than 100,000 people had pored over the
newspaper’s online database of 5,000 abuse files and case summaries. Some sought to learn
whether their molester had ever been caught, or had abused other boys. The Boy Scouts of
America has launched a comprehensive review of the files, with a promise to report to law
enforcement any cases not previously disclosed. The Scouts also apologized to victims of abuse
and offered to pay for their counseling. A Milwaukee pediatrician was forced to surrender his
medical license after the state examining board learned — from the Los Angeles Times — that
he had admitted to molesting two Scouts. “Wal-Mart Abroad” David Barstow The New York
Times In his series, David Barstow demonstrated not only that Wal-Mart’s conquest of Mexico
was built on a secret foundation of corruption, but it also revealed how top executives feared
exposure of their practices and made attempts to keep them in the dark. Impact: As a result of
this series, the Justice Department and the Securities Exchange Commission are investigating for
violations of the federal antibribery law, the Foreign Corrupt Practices Act. The Times
revelations brought a sudden halt to a growing movement to ease up on Corrupt Practices
enforcement. In Mexico, authorities are investigating Wal-Mart, the country’s largest private
employer, for possible violations of its anticorruption laws. Even before the first Times article
was published, the investigation shook Wal-Mart into action. The company hurriedly notified
federal authorities of the Mexican situation and reopened its own investigation. In mid-
November 2012, Wal-Mart disclosed in a regulatory filing that it was examining possible
violations of the antibribery law in three of its other primary overseas markets — China, India
and Brazil. Amid shareholder suits and protests, Wal-Mart has also radically overhauled its
compliance and investigation protocols, and a number of employees implicated in the scandal
have left the company. By year’s end, Wal-Mart’s investigation had cost it nearly $100 million.
“State Integrity Investigation” Collaboration among the Center for Public Integrity, Global
Integrity and Public Radio International, Investigative News Network The State Integrity
Investigation is an unprecedented, data-driven analysis of each state’s laws and practices that
deter corruption and promote accountability and openness. Impact: Results of this series
include an ever-growing number of states that have sparked or accelerated reform in
government, ranging from the increase in disclosure requirements for lobbyists and government
officials, to the formation of panels to explore ideas for an ethics reform package. Coverage of
the project and reaction to it has been massive, and its findings have been featured in local
outlets across the country, prompting action at the state level. Three states — Delaware, Iowa
and Maine — have passed laws that improve access to open records and increase disclosure
requirements for lobbyists and government officials. Five additional states — California,
Michigan, Ohio, South Carolina and North Dakota — have proposed laws that would increase
transparency in government. Good government groups and legislators in at least seven states —
Arkansas, Florida, Hawaii, Georgia, New York, Ohio and Texas — have launched reform
campaigns.
solvency
In the United States, reporters ought to have the right to protect the identity of
confidential sources
The aff has symbolic solvency – strengthens protections for the press
Koningisor 18 (CHRISTINA, First Amendment Fellow @ New York Times, The De Facto
Reporter’s Privilege, The Yale Law Journal, 2018,
https://www.yalelawjournal.org/pdf/Koningisor_ojr74u1a.pdf)

Whether a formal federal reporter’s privilege is necessary is a long-disputed question.


Congress—by refusing to craft a shield—and the Supreme Court—by declining to revisit the
Branzburg decision—have “profoundly minimize[d] the rule of law” in this realm.456 A
threshold question in the debate over enacting a formal shield is whether the present
approach—eschewing strict legal boundaries in favor of softer, more malleable norms—is
working. There are strong indications that a formal shield would offer more robust and
consistent protections for the press across both the executive and judicial branches. Formalizing
the privilege would likely increase uniformity and predictability in the law. In the context of the
executive branch, the Attorney General guidelines are not binding—failure to follow them
results in only an “administrative reprimand” or some other “appropriate disciplinary
action.”457 And while the Obama Administration aggressively pursued whistleblowers in the
name of national security,458 it also exercised substantial prosecutorial discretion to protect
them in other contexts.459 This is all likely to change. Indeed, there are already signs that the
current administration will be far less protective of the press.460 Formalizing the privilege will
ensure that protection of the media will not be left to the whims of executive-branch decision
makers. The mere existence of a formal shield may have a deterrent effect on the issuance of
subpoenas to the press. [FN461. See Newton, supra note 366 (quoting Charlie Savage, arguing
that moving decisionmaking authority on the issuance of a subpoena from an attorney general’s
office to a judge’s chambers “alone is a deterrent to frivolously or overly broad requests and it
may in fact have a significant change in how often such a subpoena is issued”).] A formal shield
will likely have similar benefits in the judicial context. Judges appear less likely today to read
Branzburg to permit a qualified privilege and more likely to impose harsh sanctions on a
reporter who refuses to surrender a source. Formalizing a privilege—in statutory, constitutional,
or common law form— would likely reduce judicial discretion. It would also provide
sympathetic judges with firmer grounds on which to extend protections to the press. A
formalized privilege also would allow for a more accurate calculation ex ante—by both reporter
and source—of whether a reporter will be permitted to withhold the identity of an informant.
Those who advocate for a federal shield statute argue that without clear protections, the mere
threat of exposure may be enough to deter a source. As Geoffrey Stone has noted, the current
discrepancy between state and federal protections “generates uncertainty, and uncertainty
breeds silence.”462

Absolute right is key -


Gora 08 - Gora, Joel. “The Source of the Problem of Sources: The First Amendment Fails the
Fourth Estate” Cardozo Law Review 29.4 (2008) ekl
There are two reasons why such balancing tests can be very problematic. First, courts often err
on the side of the government, and the malleability of the verbal formula that embodies such
tests is an invitation to judicial rejection of constitutional protection. One of the most classic
balancing formulas is the well-known "clear and present danger" test, framed by Justice Oliver
Wendell Holmes in a case whose outcome-punishing anti-war criticism-was clearly wrong,
provides as follows: ‘The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to prevent. It is a question of
proximity and 42 degree.’

Application of that standard for the next half century resulted in victories for speakers whose
speech was only minimally threatening to public order,43 but proved wholly insufficient when
push came to shove to protect more challenging speech and association." Only in more recent
times have the Courts applied a refurbished version of that test in a more speech protective
fashion.45

The other reason that a balancing test falls short of providing significant protection is its lack of
predictability. If all a journalist can tell a source about the law's protection is that it is available
depending on the outcome, months or years later, of a subjective and contingent legal formula,
that is not exactly a recipe for confidence in the mind of confidential sources. That is particularly
true when even highly conscientious and First Amendment-friendly judges can differ in any
particular case on whether the government's need for the confidential information is sufficiently
pressing so that the rights of the press-and, remember, through the press, the public-must
yield.46

Obviously, if the choice for the press is a "qualified" privilege, or none at all, pragmatism
dictates opting for the former. But the protection afforded, especially in cases where it is
needed most, may be so ephemeral that it is equivalent to no protection at all. The pattern of
cases in the wake of the Miller/Cooper matter certainly provides cause for concern. In a number
of prominent cases since the Miller/Cooper ruling, the press has had mixed results in continuing
to try to prevail in fashioning constitutional or common law protection for confidential sources.

Here’s a definition of the journalist process


Papandrea 7 - Papandrea, Mary-Rose. “Citizen Journalism and the Reporter’s Privilege.”
MINNESOTA LAW REVIEW, March 19, 2007, 78. *Papandrea concludes that a broader definition
with various qualification is superior, but agrees that this is the best functional definition*

Other scholars have suggested more workable functional approaches that essentially ask whether the
individual claiming the privilege acts like a journalist. The most attractive approach is one
suggested by Professor Linda Berger, who has argued that the privilege should be afforded to
anyone who is engaged in the “journalistic work process.”367 Berger identifies three essential
elements of that process: regular and public dis- semination; the presence of internal
verification measures; and transparency regarding the owner or sponsor of the publication and
the editorial standards that are followed.368 This approach is based on a desire to expand the category of
those eligible to invoke the privilege beyond mainstream journalists, while keeping the courts
out of difficult and subjective questions such as those discussed above.369
impact calc
Probability – prefer empirical evidence on the consequences of the free flow of
information. Empirics validate predictions and separate trends from exceptions.
Moreover, leaks are intrinsically unpredictable and defy specific predictions –
only broad empirics can suggest causality.

Magnitude – Nixon’s impeachment, ending torture sites, raising wages,


changing EPA regulations all have compounding benefits that defy statistical
calculation. The best estimate is that the impact is enormous , hundreds of
thousands of lives a year. Just the tobacco leak has saved millions of lives -
Hayden 14 – Erika Check Hayden,Nature Magazine 14, 1-9-2014, "Anti-Tobacco Efforts Have
Saved Millions of Lives Worldwide," Scientific American,
https://www.scientificamerican.com/article/anti-tobacco-efforts-have-saved-millions-of-lives-
worldwide/
“With millions of deaths every year attributable to tobacco, we can and should do better,” adds global-health researcher
Christopher Murray of the University of Washington in Seattle, leader of a group that is also publishing a paper today. These papers
present research on smoking prevention and control as part of a special issue the Journal of the American Medical Association that
marks the 50th anniversary of a landmark report on the health effects of smoking. The report, which was released on 11
January 1964 by US Surgeon General Luther Terry, concluded that the evidence that smoking causes
lung cancer and other illnesses was overwhelming. The Surgeon General is a spokesperson for
the US Department of Health. The Surgeon General's report helped to spur measures to deter
smoking, such as US legislation in 1965 that required warning labels to be placed on cigarette
packs. Since then, the movement towards stricter regulation for tobacco has steadily gained
momentum. In 2003, the World Health Organization Framework Convention on Tobacco Control recommended that countries
should take measures to regulate the tobacco industry by, for example, banning tobacco advertising and smoking in public places,
and imposing steep taxes on tobacco products. These and other tobacco-control efforts, such as education
campaigns, lawsuits against cigarette makers and smoking-cessation programs, haveaverted 8 million premature
deaths in the United States alone, estimates Holford's study, which was led by David Levy of Georgetown University in
Washington DC. They study compared how US life expectancy has changed since 1964 with how it
would have looked had tobacco control measures not been adopted.
u/v
No counterplans – negatives must defend the squo
Plants 89 [COUNTERPLANS RE-VISITED: THE LAST SACRED COW? J. Daniel Plants, Baylor
University 1989 - Punishment Paradigms : Pros and Cons;
http://groups.wfu.edu/debate/MiscSites/DRGArticles/Plants1989Punishment.htm //BWSWJ]
The notion of "as compared to the way things are done now" is nothing novel. Such a comparison is implicit any time the term
"should" is invoked. Examples will make this clear. Imagine
a congressperson proposing a mandatory seat belt
law. The floor is opened to debate over the merits of mandating safety belts. All of a sudden,
another member of Congress interrupts with the brilliant idea of banning all automobiles. Such a
suggestion would be immediately discarded as irrelevant (if not also as absurd). Obviously, when
the first member of congress proposed the seat belt law, he or she presupposed the existence of
cars in the first place. The bill was suggested in a world where automobiles (and automobile accidents) were the quid pro
quo. Similarly, take the example of a group of friends discussing where to dine. After a list of several restaurants, someone suggests
that the group play tiddly-winks instead. While that might make for great group fun, playing tiddly-winks has absolutely nothing to
do with the process of selecting WHERE to have dinner. The tiddly-winks suggestion should have been offered in the "What should
we do tonight?" or the "Should we even have dinner?" conversations. Once
the topic under discussion is clearly not
whether to eat but where to do it, the "counterplan" offered by the tiddly-wink enthusiast begs
the question being asked. These analogies highlight the fundamental flaw in the optimality perspective. Counterplans
are not responsive to the question posed by the resolution. The resolution suggests an action,
and asks if it should be done. It explicitly limits the range of discussion to that action and no
more: should we affirm this resolution? Yes or no? The area under discussion is the resolution and its beneficial
and detrimental effects, nothing more. When the negative counterplans, it begs the question of the topic. Resolutions do not make
claims such as, "Resolved: the United States should enact ___________________ as compared to all other competing priorities."
Such wording might legitimize counterplans, implicitly, by requiring the affirmative to be superior to all other options, although even
then it is arguable that the affirmative need only be superior to extant alternatives. It
is not a coincidence that the
resolution is worded in its present fashion. It proposes a course of action. It is up to both sides
to clash over that particular action, not distract the question at hand with unrelated policies. An
example of a popular generic counterplan will further illustrate my point. Recent college and high school topics have dealt with
uniform, minimum educational standards imposed by the Federal government. The thrust of this topic, and the reason that Federal
intrusion into the area of education was ever suggested, is that for the past 200+ years, the states' performance in education has
been unsatisfactory. Time and again, the states have been unwilling to force the schools under their control to meet minimum
standards. The affirmative's rationale for Federal action is largely buttressed by the demonstrated recalcitrance of the states to take
the initiative. Without fail, the negative would counterplan by doing exactly what the affirmative did, but enacting the proposal
simultaneously in the 50 states. Such a strategy begs the question posed by the topic. The topic demands that the desirability of
federal action be debated; the negative proposal to go through the states relegates the central question of the resolution to
secondary importance. Indeed, at the start of the debate, the affirmative, in arguing for change advances its best possible
indictment of the status quo as it exists at the start of the first affirmative constructive. In arguing for change, what other system
could the affirmative claim to be superior to? The
status quo is all that exists when the debate commences.
The affirmative cannot forsee all possible systems that the negative could offer; and even if such premonition
were possible, the negative could always change its strategy, since the affirmative must speak first. In short, when the affirmative
argues that we should change, they mean that change is beneficial as compared to the present system; there exists no other
standard of comparison to which they could conceivably be appealing, The origin of the idea that the affirmative must compare
favorably to any and all negative proposals, is beyond me. Surely the affirmative has done their job if they can prove change is
warranted at the margin. Negative Fiat As most students of debate know, debate has adopted a curious deus ex machina to make
debate more practical. The concept of fiat (from Latin, literally meaning, "Let it be") is the assumption, for the purpose of discussion,
that the resolution can be implemented. Obviously, four debaters in a classroom aren't really able to affect the nation's policies. But
debate would be inane if the affirmative offered the plan in the 1AC, and then the 1NC rose and cavalierly argued, "Since the
affirmative team members are not congresspersons, they cannot put their plan into effect. Therefore, the negative wins." Thus, to
avoid questions of whether or not the present system would adopt the affirmative, we assume that it would, for the purpose of
discussion. This makes it possible to debate the merits of proposals, rather than the likelihood of their adoption. So far, so good. We
have made only one assumption: that the action specified in the topic is put into effect, so that its desirability can be evaluated.
Notice that the rationale for allowing this is, once again, to focus more clearly on whether we "should" affirm the topic. This brings
us to an important question: Where does "negative fiat", if such a thing is possible, come from? Why
does the negative have the right to offer and implement proposals? Observe that fiat, as
developed above, is not known as "affirmative" fiat; it is neutral with respect to side. It is a
device that assists BOTH teams in analyzing whether we should take action. Fiat merely directs the
debate more clearly to relevant discussion. Fiat is not a reciprocal privilege that the negative deserves on
grounds of equity, because it doesn't give either side an advantage over the other. Fiat inheres
in the way both teams debate the merits of the resolution. In essence, the negative already has
"benefited" from fiating the resolution into existence as much as the affirmative did; both sides
now can avoid debating what WOULD be done and debate instead what SHOULD be done.
Consequently, the conclusion that the negative deserves "negative fiat" to counter the
"affirmative fiat" is groundless. Thus, the prior question, posed again: why and how can the negative assume into
existence alternative policies? There is only one action asked to be debated: the resolution (or its designated representative, the
plan) . We can assume into existence the resolution and nothing more. From our standpoint, that is literally all that we have control
over; we have, by agreeing to limit discussion to a single proposal, proscribed our ability to deal with or effectuate any other
policies. Succinctly stated, there is no theoretical basis for the existence of counterplans as an argument against the affirmative.
Whither the negative? At the outset of this section, let me make clear my conviction that this part of the essay is not indispensable
to my argument in any way. The preceding paragraphs are reasons why counterplans have no legitimacy as debate
arguments. If that is indeed true, then arguments about what debate will come to after the passing of counterplans, is
secondary. Remember, at one time there was no such thing as a counterplan. Debate persevered. There is absolutely nothing wrong
with innovation in debate; however, those who innovate must be able to justify the appropriateness of their creations. If
counterplans are proven inappropriate for debate, they should be discarded. The fact that they have been around for so long should
afford them no special protection. For the sake of argument (no pun intended), though, what would the post-
counterplan world look like? Not that different, really. The negative would defend the status
quo. The affirmative, to win, would have to be on balance superior to the way things are done in
the present system. It is beyond me why so many people are unwilling to force the negative to defend the present system. A
typical claim is, "It's unfair to leave the negative nothing but the messed-up, defunct status quo. Why should the negative
get stuck with it?" What a facile assertion! The status quo is not some random, irrational system
that is inherently deficient. There are reaons why things are done the way they currently are.
True, they may be bad or flimsy reasons, but in those instances, then change would seem to indeed be warranted. And should we
not have equal, if not greater, sympathy for the affirmative? They are asked to prove that the longstanding traditions of the status
quo be abandoned in favor of an untried alternative. my point is that there is nothing untenable about the negative arguing that we
should not change the status quo. Argumentative Benefits Another equally unpersuasive claim is that "valuable" issues will be
eliminated if counterplans perish. This is, of course, untrue. rentw. "Valuable"
arguments, then, wouldn't be
sacrificed; only those that were not truly reasons to reject the affirmative (i.e., non-unique
disadvantages). The elimination of counterplans would improve, not harm, the quality of argumentation by placing a higher burden
of proof on the issues in the debate. The successful negative would be the one who argued extremely well researched
disadvantages, had a copious quantity of specific case evidence, and who was competent at extending intelligent topicality
violations. Few debate purists would object to such strategies.