The daily digest of Twin Cities culture | Secrets of the City

If the title of patron saint of journalists were not already held by the seventeenth-century French priest Francis de Sales, many American reporters would be ready to canonize Professor Jane E. Kirtley of the University of Minnesota for her steadfast support and defense of their work. Through a serendipitous career as a reporter, attorney, advocate, and academic, Kirtley has built a reputation as the nation’s leading expert on the First Amendment and its practical application to the media. She has also emerged as a major critic of increased government secrecy since September 11.

In journalism circles, Kirtley gained renown for leading the Reporters Committee for Freedom of the Press (RCFP) from 1985 to 1999, helping to shape the Washington, D.C., organization into a substantive, respected resource on First Amendment issues for reporters across the country. As director of the Silha Center for the Study of Media Ethics and Law, she still serves as a source for scores of media inquiries each year, while teaching media law classes that are in great demand and continuing her crusade for press freedom issues, both at home and abroad.

Slight of build, with green eyes and a thin, regal nose, the amiable Kirtley seems an unlikely champion for America’s often boisterous fourth estate. When on a soapbox for freedom of the press, she is more beatific than belligerent, a joyful missionary for the First Amendment. She once told her law school alumni magazine, “I suspect that if you asked some of my professors, they never would have believed it was possible that shy little Jane Kirtley could actually be taking on Jerry Falwell or Pat Buchanan on Crossfire.”

Since coming to Minnesota four years ago, Kirtley has maintained a busy schedule that combines public engagement and scholarly research. She has given 115 lectures, presentations and speeches outside her own classrooms; written or co-written thirty-seven publications; served on seventy-seven panels or seminars; consulted on freedom of information and the press in ten countries; and been interviewed by the media nearly three hundred times.

When The Rake caught up with her in January, Professor Kirtley was preparing to leave town for a semester as a visiting professor at Suffolk University Law School in Boston. Kirtley, an admitted Anglophile who quotes the fictional Rumpole of the Bailey in law review articles, was also nursing a cold that she had picked up on vacation in London with her husband, law professor and playwright Steve Cribari. Despite the sniffles and the peripatetic schedule, she was true to her reputation as an accessible and “above and beyond” resource for journalists.

Even after three decades in the news business, Kirtley still gets choked up over what most Americans take for granted. “It’s really hard for me to talk about the First Amendment without getting extremely emotional,” she declares a little bashfully. “It’s such an article of faith with me. It’s what makes our country different from any other democracy in the world.” Kirtley sees one of her roles at the University of Minnesota as “passing the torch” to budding journalists. “We have a new generation that needs to understand the importance of the First Amendment,” she says.

Los Angeles Times media writer Tim Rutten says it’s clear that principle, rather than a love of publicity, drives Kirtley’s work. “Some people believe in free expression because they think it’s a bedrock value of a free society,” he says. “Then there are those who adore malicious license. Jane is in the first camp—that sets her apart from many lawyers interested in media.” Adam Liptak of the New York Times, a libel attorney turned reporter, lauds Kirtley for her comprehensive knowledge of the law and her “authentic commitment to First Amendment values.”

Even those who disagree with her views hold Kirtley in high esteem. “I enjoy sparring with Jane a tremendous amount,” declares Minneapolis attorney and former federal prosecutor William Michael, Jr., who has debated her on the USA PATRIOT Act and other Bush-administration security initiatives. “It’s good for the country that she continues to speak on her views. It leads to a better-informed public and better-informed decision-making authority.”

Kirtley grew up in Indianapolis, the daughter of a research physician who subscribed to the city’s three daily papers. “Eugene Pulliam, who published two of those papers, was—bless his heart—slightly to the right of Attila the Hun, but he really believed in freedom of the press,” Kirtley says. Bitten by the journalism bug early on, Kirtley says she regarded the profession as a way to do interesting things without overspecializing. Arts reporting was a particular interest, and today Kirtley remains an avid opera fan with a soft spot for Verdi. (One can only wonder how Verdi’s tales of skullduggery and betrayal amongst the rich and powerful might turn out differently, were a gaggle of reporters suddenly to horn in on the storyline, exposing key secrets for benefit of the public.)

Her career took an unexpected turn while studying at Northwestern University’s Medill School of Journalism. As part of her master’s program, she was assigned to cover nuclear energy and nuclear-weapons policy in Washington, D.C., for the Oak Ridger, the newspaper serving Oak Ridge, Tennessee, home of a major nuclear-weapons and energy facility. “At that time, Oak Ridge had one of the highest concentration of Ph.D.’s anywhere in the U.S., so I had to get everything right. You couldn’t fudge it because you were writing for an audience who knew this stuff inside and out.”

That assignment led her to a critical realization. “What really struck me was the fact that if I couldn’t get the information, then I couldn’t really write. Over the years, working in emerging democracies and so forth, I’ve come to the conclusion that the right to say or report anything you want is only half of the idea of freedom of the press. You also need to have the right to get information. Otherwise you have nothing to say, or what you do say is nothing but hot air.”

In these days of zealous government secrecy, Kirtley is fond of quoting federal Judge Damon Keith, who wrote that “democracies die behind closed doors.” She adds that “Democracy is not self-executing. Just because we declare a democracy doesn’t mean it really exists. If we want to preserve it and have it be what it’s really supposed to be—that only happens if we have access to information.”

In a recent article, she makes the claim that “democracies can’t accomplish much of anything without the free flow of information—including waging the war on terrorism.” She notes that a congressional investigation into the events of September 11 showed that relevant CIA and National Security Agency reports were so highly classified that FBI agents in the field—the actual law enforcement officials who might have been able to pre-empt the attacks—did not have access to these reports. Her point was underscored by Tom Kean, co-chair of the federal September 11 commission and former Republican governor of New Jersey, who observed in a December interview with CBS: “I’ve been reading these highly, highly classified documents. In most cases, I finish with them, I look up and say, ‘Why is this classified?’ Maybe out of our work, a lot of these documents that are classified will be unclassified.”
In the late 1970s, spurred by the freedom-of-information issues she encountered on “the nuclear beat,” Kirtley attended law school at Vanderbilt University. She intended to return to journalism, but later decided to represent her colleagues as an attorney instead. She spent five years at a D.C. firm, until her caseload was shifted away from media law. In 1985, she took a staff attorney job at the RCFP, moving within a few months to acting director and then executive director.

The Reporters Committee was founded in 1970 to fight a wave of government subpoenas compelling reporters to name confidential sources, and to respond to FBI surveillance of journalists’ phones. Kirtley’s job at the committee involved testifying before Congress, filing briefs with the Supreme Court, and pushing for press access to government information. She earned a reputation as a knowledgeable and accessible source—and one of the few women at the time—on cable news programs and as a columnist on First Amendment issues for the influential American Journalism Review. Even today, reporters are somewhat taken back when Kirtley picks up her own phone and gets back to them quickly as she does.

As is often the case in Washington, Kirtley’s work at the Reporters Committee garnered her some strange bedfellows. Although television news producers and panel organizers repeatedly pitted her against conservative activist Reed Irvine, she joined him and his organization, Accuracy in Media, in calling for release of photos of Vince Foster’s suicide scene withheld by the National Park Service. Irvine sought the photos to help prove a bizarre conspiracy theory that Bill and Hillary Clinton had had Foster murdered. For Kirtley, the issue was principle—and concern that the government was creating an exemption to the Freedom of Information Act that didn’t exist in law. “It really is irrelevant to me that Accuracy in Media happens to be espousing this viewpoint, if I happen to think the viewpoint is right.” The matter is now before the Supreme Court, and Kirtley is not optimistic that her views will prevail, although she speculates that Justice Antonin Scalia, an arch-conservative and strict constructionist, agrees with her arguments.

At the Reporters Committee, Kirtley became the go-to person for reporters facing subpoenas or prior restraint issues. “If Jane thought you were inadequately represented, she would agree to fight for you,” says Professor Emeritus Donald M. Gillmor, who preceded her as director of the Silha Center.

So what about Robert Novak, the journalist facing calls to reveal sources since “outing” CIA agent Valerie Plame last summer on a tip from a White House official? Kirtley would no doubt support Novak’s right to keep his sources confidential, but she has deep concerns with the long-term consequences of Novak’s actions.

Having worked in Washington for nearly two decades, she says that accusations that leaks violate national security are “are often made but seldom justified. But I’m hard-pressed to see the justification for publishing [Plame’s] name. If the story was the fact of the leak itself, and that fact was orchestrated by the Bush administration, that story, too, could have been written without identifying her… [What Novak did] may not have any legal significance, but people in Washington will remember it. Several years from now, when we’re struggling for access to information, people are going to say, ‘yeah, but remember when Novak published Valerie Plame’s name? You guys can’t be trusted with this stuff.’ I’ve been thinking a lot about consequences when it comes to journalistic responsibility.”

Kirtley draws a bright line between legalities and ethics in journalism. “If the government can dictate to the press what constitutes responsible behavior, then we will not have a free press. It is absolutely imperative that the distinction between law and ethics be kept very clear. Having said that, I think it’s absolutely imperative that journalists themselves have ethical standards.

“The problem I see is that there’s only one black-letter, absolute ethical imperative: A journalist should never knowingly report an untruth.” She contrasts that with her status as an attorney: “I had to sign on to canons of legal ethics and continuing legal education that includes ethics; there were ethics components to the three bar exams I took. I have no problem with ethics per se but there’s a difference in dealing with professions regulated by governments, such as medicine or law, and a trade that cannot be regulated by government and still remain free.”

Lucy Dalglish, a former Pioneer Press reporter and Kirtley’s successor at the Reporters Committee, credits Kirtley with anticipating big trends in media law. “She was very good at articulating the threat to public right-to-know posed bythe rapidly expanding right to privacy,” says Dalglish. In the 1990s, Kirtley and other freedom-of-information advocates fought, with only limited success, state and local governments’ restricting access to drivers-license lists and criminal records on the grounds of personal privacy; just last month, she testified before a Minnesota Supreme Court advisory committee, stating that clamping down on access to records in the age of the Internet and centralized databases amounted to “backwards engineering.”

“If we have a problem with information being used for certain purposes,” says Kirtley, “Then we need to pass laws against that particular use of information.” For example, privacy advocates today express grave reservations about the transfer of criminal records from courthouse paper files to centralized electronic databases. They argue that the broader availability of the information raises new concerns, magnifying inaccuracies in the records and making discrimination on that basis more likely. As a freedom of information advocate, Kirtley supports cleaning up records and enforcing anti-discrimination laws more aggressively instead.

Less than three weeks after September 11, Kirtley anticipated the Bush administration’s push for secrecy in an article for the Poynter Institute, exhorting her media colleagues to push back regardless of public reaction. At the end of the piece she predicted that new powers of surveillance and sharp curtailment of the public’s right of access to national security information “will be eagerly embraced by some as a quick fix to allay fears of terrorist threats. The news media must challenge those seeking such measures to justify not only their necessity, but their efficacy in preventing future harm to national security.”

The very next month, Attorney General John Ashcroft issued a memorandum outlining the administration’s policies under the Freedom of Information Act. Discarding his predecessor’s overall “presumption of disclosure,” he added new obstacles to public access to information, requiring agencies to carefully consider national security, effective law enforcement, sensitive business information, and personal privacy before releasing information to the public—and pledging to defend executive agencies’ decisions to withhold information if the decision had a “sound legal basis.” (Kirtley notes that a good lawyer can find a “sound legal basis” for withholding just about anything.) Not that the disclosure of public records under the Freedom of Information Act has ever been a cakewalk for journalists, as enforcement of the 1966 law relies a great deal on the discretion of the government. Due to numerous disincentives, Kirtley points out, custodians of government records have more reason to retain documents than to risk being charged with “improper disclosure.” She quotes a former FOIA official who observed, “Nobody ever got a medal for declassifying a document.”
Ashcroft’s first shot over the bow was followed by two administration-backed laws. The first, the hastily passed Patriot Act, included provisions for the government to spy on library patrons’ reading materials, and prohibited librarians from informing patrons that they were under investigation (Ashcroft claims the law has yet to be used for this purpose, although critics say that ultimately begs the question of its utility). Besides a chilling effect on freedom of expression, Kirtley believes the Patriot Act’s expanded surveillance powers also have implications for a free press. “Knowing that you’re constantly subject to government surveillance changes the way you operate; it changes how you do business; it changes how you communicate with other people. This is true for everyone, not just journalists, but to me it is a very big deal if the government thinks it’s going to conduct surveillance of journalists.

“If the government is able to collect information about us, to release it selectively, and to withhold it selectively, then we’re drifting very close to the environment I found in the Czech republic right after the Velvet Revolution, where people were afraid to talk to each other on the streets because they were so used to surveillance. Frankly, I think we have a lot more to fear from the government than we do from our fellow citizens.”

The massive Homeland Security Bill, signed into law in 2003, contained a major exemption to the Freedom of Information Act and state open records laws: “Critical infrastructure information” that revealed security vulnerabilities in communications, transportation, financial services and other infrastructure, if it were voluntarily provided to the government, would be exempt from public disclosure. Worse yet, in the eyes of First Amendment advocates like Kirtley, were the new and severe penalties—firing, fines and/or up to a year in prison—for government employees who disclosed such information. “What civil servant would risk punishment of this magnitude by revealing information in the interest of promoting an abstract ‘public’s right to know’?” she wrote recently.

As successful as it has been, the Bush administration’s legislative agenda on secrecy pales in comparison to the culture of secrecy that pervades the executive branch’s everyday work. Sometimes it cites national security as a reason; sometimes it’s plain old executive privilege. Either way, it would be hard to fault the administration for being inconsistent as it fights efforts to gather information that might be important to its accountability: The names of hundreds of detainees being held incommunicado in American prisons post-September 11 remain unknown, as do those of the military’s prisoners at Guantanamo Bay, Cuba; Vice President Dick Cheney’s refusal to hand over his own energy task force records will soon be considered by the Supreme Court; presidential records from the Reagan years, which were scheduled to be released several years ago, have been kept under wraps; in December, the White House did not release news of Iraq administrator Paul Bremer’s convoy being attacked until two weeks after the fact; and the administration amended the way national security information is classified so that information already released to the public could be reclassified as secret.

“How did we come to this: a Kafkaesque world where information that is in the public domain can be retroactively declared secret?” Kirtley asks. It seemed only fitting that the week The Rake spoke with Professor Kirtley, the FBI had advised citizens to be on the lookout for suspicious people carrying almanacs, volumes chock full of public information issued by the government. In a similar vein, during a January 2002 debate on NPR, Kirtley pointed out the folly of the administration’s terror alerts. “I found it incredibly frustrating to be on alert about an attack that was coming from I knew not where, I knew not when, and I had no idea how to protect myself. It strikes me—and I’m sorry to say it—that this is a way to create fear in the civilian population. It’s cover-your-ass time—but it isn’t even that specific… My government owes me more.”

Kirtley says that every presidential administration she has seen, regardless of party or ideology, inevitably succumbs to a culture of secrecy, at least to some extent; the second Bush administration, however, is an extraordinary case. What’s behind the current obsession with secrecy in the White House? “My sense is that they like the idea of the country being ruled by elites, whether they are their friends or business colleagues or ideological colleagues. And they really don’t like to mess with this democratic process, which includes oversight and participation and so forth. They’d rather just tell us all how it’s going to be. In that sense, September 11 was a huge gift to them because a large share of the American public was ready to accept this secrecy; they were spooked by the events of September 11, and eager to be reassured because they didn’t have much experience with terrorism before this.”

“That’s changed, of course,” Kirtley says, with a number of cases before the Supreme Court this term related to incommunicado detentions, and other cases wending their way through the judicial system. “But it took much longer than even I would have expected for the news media to start challenging these things constitutionally; historically, the press has been at the forefront of opening up court proceedings.

“At some point,” Kirtley predicts, “There’s going to be a day of reckoning, a day when the public says to the press, ‘Where were you guys? We counted on you and you didn’t deliver.’”

[On January 14, the Supreme Court refused to take up the question of whether or not the government acted illegally when it withheld the names and other details about hundreds of foreign detainees, upholding lower court rulings in the government’s favor. It has not yet considered the case that would compel Vice-President Dick Cheney to reveal records relating to the administration’s energy policies, though Justice Antonin Scalia did go duck hunting with Cheney last fall.]