Gagging on the Patriot Act

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.”

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