“Statutory interpretation” refers to the process of understanding the words in a law that Congress wrote.
Sometimes—in easy cases—“statutory interpretation” just means reading. But other cases are tough and call for rigorous analysis to determine what the law really says. Congress, as it turns out, is not always clear. Rather than throw up their hands, judges reach for dictionaries,
and sometimes even children’s books
to figure out what ambiguous statutes mean. No doubt, the solutions judges give can be just as puzzling as the questions they answer. But when they tell us to accept that tomatoes are vegetables
and fish are not tangible objects,
they don’t just ask us to take their word. They provide reasoned and sometimes even thoughtful analysis to trace how they got there. So—setting aside whether their decisions are right—at least they show their work. But, unfortunately, not every question of statutory interpretation receives the attention it deserves.
This Note considers one of those neglected questions: What does “news media” mean? That phrase appears in the False Claims Act (FCA), the principal federal statute making it illegal to defraud the government.
Unlike practically every other federal law on the books today,
the FCA not only empowers the Department of Justice (DOJ) to go after fraudsters, but it also enlists everyone else by promising a financial reward to individuals who bring claims on behalf of the government.
These so-called qui tam actions are based on the rationale that encouraging individuals (known as relators) to blow the whistle on fraud can help bring it to the government’s attention while deterring would-be fraudsters in the first place.
As it turns out, this theory works in practice: In 2022, qui tam suits accounted for nearly ninety percent of the government’s $2.2 billion recovery under the FCA.
But there is a catch. Individuals who bring claims based on fraud that was already disclosed in the “news media” are ineligible to recover and may even have their cases tossed out entirely.
That restriction lies in a provision of the FCA known as the public disclosure bar.
Despite its name, it does not block claims based broadly on information that has been publicly disclosed.
Instead, it bars claims based on information in three specific categories: (1) “Federal criminal, civil, or administrative hearing[s] in which the Government or its agent is a party”; (2) “congressional, Government Accountability Office, or other Federal report[s], hearing[s], audit[s], or investigation[s]”; or (3) “from the news media.”
If a suit is based on “substantially the same” allegations as ones appearing in any of those categories, the defendant can move for dismissal.
The public disclosure bar’s potential fatality to qui tam actions has made it the focus of significant attention: In 2010, Congress amended the provision’s first two categories,
and the Supreme Court has considered the meaning of particular words appearing in those two categories’ statutory text three times since 2007.
Meanwhile, the third category—“from the news media”—has evaded Supreme Court scrutiny as lower courts have interpreted the phrase in wildly expansive ways, with some going so far as to say that something can constitute news media merely by virtue of its publication online.
Plainly, courts have stretched the meaning of the phrase far beyond the text and policy of the statute. Despite the attention some parts of the FCA have garnered, this third category, “news media,” has been the subject of surprisingly little inquiry.
Beyond observing that the term reveals that the public disclosure bar, as a whole, has a “broad sweep,”
the Court has not confronted what “news media” means in light of recent lower court decisions interpreting the term broadly enough to capture health clinic websites and online university faculty profiles.
The phrase has not yet produced a split among circuit courts, but given the FCA’s frequency on the Supreme Court’s docket
and courts’ boundary-pushing interpretations, one may be forming.
When it comes to understanding “news media,” courts offer little guidance and no consistency. These unbounded interpretations of the phrase “news media” are troubling as a matter of statutory interpretation and legal doctrine, but even more so because they pose a threat to the individuals who make justice under the FCA possible. Whether a source counts as news media matters to the individuals trying to raise claims under the FCA and to the corporate defendants trying to bury them. The problem lies not only with the courts who have read “news media” broadly. Other courts have been more restrained in their approaches to applying the category to novel sources, but they lack a cohesive and unified approach to interpreting the phrase.
Without a common foundation or set of principles to guide courts, broad readings of “news media” threaten to “swallow limitations that Congress specifically placed on the scope of the public disclosure bar” altogether.
This Note intervenes by building on an innovative district court opinion
and providing the first academic account of this phenomenon with a solution to courts’ unbounded interpretations of “news media.” In Part I, this Note discusses the history of the FCA as a Civil War statute with roots in Roman law. It traces the evolution of the public disclosure bar as Congress has sought to strike a balance between foreclosing opportunistic litigation on the one hand and deterring fraud on the other. Part II provides an overview of the jumble of “news media” interpretations and discusses how courts have tried to make sense of the phrase in light of modern conditions. Lastly, Part III looks to a trailblazing opinion and identifies three principles from the FCA’s statutory language to guide courts in interpreting “news media” in an age when information largely lives on the internet. Three guiding concepts—curation, independence, and accessibility—can help courts understand “news media” in ways that are faithful to the plain text of the FCA, consistent with the statute’s history, and normatively sound.