Jane E. Kirtley is retiring May 25 as the Silha Professor of Media Ethics and Law at the University of Minnesota’s Hubbard School of Journalism and Mass Communication. Her name should be familiar to anyone interested in media law. For decades, she’s been the go-to expert on First Amendment and freedom of information issues, interviewed by legacy media in the U.S. and abroad.
Before coming to the university in 1999, Kirtley spent 14 years as executive director of The Reporters Committee for Freedom of the Press in Arlington, Va. Before that she spent five years as an attorney with a New York and Washington, D.C, law firm.
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Why retire now, with journalism under pressure from multiple fronts? Kirtley, 72, said she’s been thinking about it since late 2019, when her husband, Stephen Cribari, a law professor at Notre Dame, retired. But once the pandemic hit, shifting learning online and bringing travel to a halt, Kirtley said she found no compelling reason to leave. She thought about it again more than a year ago, but again put it off, correctly anticipating challenges to the First Amendment and media law under the second Trump Administration.
Now, for multiple reasons, she feels it’s time. She thinks often about Don Gillmor, her predecessor and the founding director of the Silha Center for the Study of Media Ethics and Law. Gillmor retired in 2009, but began having health problems soon after and died in 2013.
“You just can’t take for granted you can keep doing the things you care about doing, and travel is very important to me,” she said. “For example, I loved my five-month Fulbright teaching media law and ethics in Riga, Latvia. I want to make sure I’m healthy enough to do it.”
MinnPost spoke to Kirtley about the pressing issues facing journalism, everything from AI to the unprecedented scrutiny of journalists by the federal government. This interview has been edited for space and clarity.
MinnPost: What are the biggest legal and operational challenges facing U.S. journalism today?
Jane Kirtley: I’ve been doing media law since the 1980s, so I have a long memory and have observed many attacks on the press over those years, some coming from the government and some coming from private actors. The biggest concern I have right now is the weaponizing of the law to go after the independent media. President Trump has been leading the charge on this.
There have been threats before from other presidents, including Nixon, Reagan and even Obama. But I’ve never seen a president of the United States sue media organizations for libel, much less other suits, based on all kinds of novel legal theories, like consumer fraud, that have never been used against the press before.
In the 1980s and ‘90s, there was a lot of talk about whether the Supreme Court as it existed then would be willing to overrule the New York Times v. Sullivan libel standard that requires public officials and public figures to prove actual malice. But it never happened. Now, I think we have reason to be very concerned about the staying power of the Times v. Sullivan standard.
We know the current court has been willing in other contexts to reverse or overrule existing precedent of long standing. Whether they would do so to Times v. Sullivan is anyone’s guess. But that threat represents the greatest risk to the stability of a principle that has served us so well since 1964.
MP: How does that affect what stories get covered?
JK: So many of the owners of media outlets today do not see them as vehicles for serving the public interest. They see them as means for wielding power or maximizing profit or both. I’m not saying there’s anything wrong with making money off running a media outlet. That’s been the model of a long, long time, and if you can do it, that’s great. But it shouldn’t be the main motivation for engaging in journalism.
Whether it’s the venture capitalists, the Silicon Valley bros, or whoever it is that owns these outlets, they don’t approach their operations in an altruistic way. I’m not naive. William Randolph Hearst wanted to make money, and he wanted power, too. The Sulzbergers and the Grahams wanted to make money. But even they understood the purpose and need for a free press in this country, to hold the powerful accountable and make sure the public was informed. I don’t get even a hint from many of the current mainstream media owners.
MP: How do you cover an administration that lies and obfuscates so brazenly?
JK: We have to go back a step and think about how the news media are regarded by the public in the United States today compared to, say, the Watergate era. There has been, in my opinion, a systematic attack on the legacy or mainstream media going back 35 years, 40 years even, from both the left and the right. It didn’t begin with Trump.
I’m not saying the public always thought, “Oh, the press is always going to tell me the truth, I’ll always believe it.” Of course not. But if you think back to the post-Watergate era where young bright people wanted to go to college to become the next Woodward and Bernstein, and Superman was a reporter and everyone admired him … That kind of confidence that you were getting truthful, accurate reporting has been undermined quite deliberately, by a variety of forces.
Once you have done that, then it becomes very easy for someone like President Trump to use terminology as he did in his first administration, calling the press the enemy of the American people and using the term “fake news.” People bought that, and continue to buy that. If you’re an institution that has been labeled as a liar, how credible is it for you to be calling out lies by another institution? A lot of people just assume this is another example of the liberal press lying to us about what President Trump says or does.
As a journalist, you can document it. You can provide evidence. You can provide links to documents. But the problem is, the reality we live in now, with the internet and so many outlets for “news” and “information,” it’s possible more than any time in my lifetime (for people) to isolate themselves in a particular silo and go to sources that reinforce what they already believe or want to believe, whether what the sources report is true or not.
Compounding that credibility gap, it’s risky to take on President Trump. It hasn’t just been the news media who have been in his sights. Universities have. Lawyers and judges have. Institutions that have been very important in providing, if not formal checks and balances, at least additional watchdog activities. If those institutions are themselves cowed because of the threat of regulatory retaliation or lawsuits, we’re silencing a very important counterpoint to what the president is doing.
MP: We’re seeing journalists, in Minnesota and elsewhere, being arrested or investigated for doing their jobs. Are you concerned that the way the press is being treated, really good journalists working today and potential good ones coming out of college will leave or avoid the profession?
JK: Yes, of course I’m worried about both of those things. Unless you’re in the very top echelons of the journalism world, you’re not going to get rich as a journalist. Money was never a motive for most journalists. What drove many journalists was a burning desire to uncover information and share it with the public.
But with the growing uncertainty about the impact of artificial intelligence on many trades and professions, it’s more difficult to articulate, “What’s the point of journalism? What is journalism for?” in a way that is appealing to young people. I’m not talking about ones who want to be influencers. I don’t consider that journalism.
Despite that, I know there are still many young people who want and who need to do journalism. They want to hold government and other powerful institutions to account. They want to provide the public with information they need to make good, informed decisions about everything from voting to how they live their daily lives.
MP: You’re not a fan of A.I. in journalism, are you?
JK: I hate A.I. This is one of the reasons why it’s time for me to leave teaching. To me, it’s the devil’s tool. Because of my negative feelings about it, I don’t feel able to train my students in how to use it. I would feel complicit in a plot to undermine so many values that matter to me, like accuracy and critical thinking.
I say that because of the many technological tools that have been developed in my lifetime, this is one of those things that can be used in a responsible, ethical way, but also something that can be very badly abused, and used to hurt people. It can compromise their intellectual property rights. It can compromise their privacy. There are just so many things that are problematic about A.I., not to mention its tendency to promulgate misinformation or disinformation.
Using it mindlessly is a disaster in the making. It’s a tool. It doesn’t think. It’s not a human being. We shouldn’t expect it to act ethically because it’s not in a position to operate in that way.
MP: And yet, it seems to be creeping into the industry.
JK: There’s so much fear and uncertainty now throughout the media workforce with what the effect of A.I. is going to be. I think about the Cleveland Plain Dealer’s decision to tell their journalists to go out and gather news, and then A.I. will write their stories for them.
I could go on and on about the loss of copy editors at news organizations, the folks that caught the errors and asked the reporters, “Who are you talking about, and how do you know this?” A.I. is not going to do any of that. It’s just going to process what you feed into it, which means the product that results is going to be imperfect.
Now the New York Times (in a recent email to its freelancers) is saying you can’t use A.I. generated or modified text, and using generative A.I. tools to create, draft, guide, clean up, edit, improve or rephrase your writing is strictly prohibited. That’s a pretty broad prohibition, and I don’t disagree with it. But newer generations coming up are not going to know how to implement that. They’re A.I. natives, for lack of a better term. But like everyone else, they’re still finding their way.
MP: What do you think about the way Federal Communications Commission (FCC) Chairman Brendan Carr is going after late-night entertainers and their networks who criticize the president?
JK: His relentless assault on broadcast media who are not toeing the line for President Trump … I’ve not seen anything like it in my career of observing the FCC. The FCC has certainly made decisions I’ve disagreed with, but I’ve never seen anything so blatantly political in modern history as what Brendan Carr is doing now.
The FCC regulates all kinds of content. Think back to the 1990s, when a burning issue was indecent speech. Indecent speech, as opposed to obscenity, is protected by the First Amendment. But the argument was, because broadcasting is a pervasive, accessible medium, the FCC had authority to regulate indecent speech in order to protect children from content that was not suitable for them.
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They couldn’t completely ban it. But they could channel it into the so-called safe harbor period, times of day where children were expected to be under the parents’ supervision or asleep. That’s how they threaded that particular needle. But what they weren’t supposed to do, then or now, was engage in any kind of retaliatory action that was based on viewpoint.
The difference we’re seeing now with Brendan Carr is that his regulatory activity seems motivated by trying to discourage any kind of speech, satirical or otherwise, that criticizes President Trump or the Trump administration. Forget the Constitution, although I never do. It goes beyond the First Amendment. It also has to do with a violation of the Federal Communications Act of 1934 as amended — something Congress could address if it chose to.
The so-called “equal time rule” exempts bona fide news programming. Are the daytime or evening talk shows bona fide news programs? It’s been well established for quite some time that they do qualify for the exemption. But just as the Supreme Court could revisit Times v. Sullivan, Carr’s FCC is revisiting that question. We will see what happens as this continues to play out.
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