Gagging on the Patriot Act

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.”

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