So would’ve passing a journalist shield law or FOIA reform or NSA reform but sure, go with a movie screening. Of course, Rep. Sherman’s whole-hearted defense of the Free Flow of Information Act of 2007, withdrawn in 2008, boiled down to you can trust the Justice Department (“So I would say you would have to be crazy to be a source and worry about the Justice Department.”) and you can’t trust journalists. His full statement (emphasis mine and typographical errors the government’s):
Mr. Sherman. I thank the Chair.
We are here dealing with journalists, sources and the Government and we want to avoid chilling those sources who might be chilled for fear of revelation.
The first comment that we have in this country (or at this time around the world), the strangest communication system one can imagine, where so much of our information comes from sources that want to be anonymous, but validated.
We have always had people writing things on the walls anonymously and we have always had people who will stand up and say what they want to say in their own voice. It is just now we have people who want the credibility of speaking in their own voice and the anonymity of being the unnamed source.
Second, I would observe that usually we have witnesses there in front of us who are in the best position to tell us how to achieve the goal. The strange thing here is, here, it is up here we have perhaps the people most familiar with what we are trying to do, in that we are all sources. And the goal of this statute is source comfort, not so much journalist comfort.
In fact, I have never seen a source who wanted to leak something and, well, one journalist wouldn’t take it, so they go to another one. There are lots of journalists, but for some stories, there is only one source. So the goal is to make us sources comfortable.
And I would say, Professor Eliason, you have it right. When I, as a source, choose, as so many of those with a little bit of authority here in Washington do, to try to reveal something without putting my name on it, the least thing I am worried about is the Justice Department.
I believe someone used the figure that there have been 19 cases since 1991 where sources have faced revelation from the Justice Department. I have been outed 19 times since 1991 and the Justice Department has had no role.
How many times does a journalist say it is on background and then publish your name? Whoops, happens all the time. We had a case just last week where an aide in my office was told, ``Well, thanks for the information and we won’t identify you by name or by title.’’ They just identified them as an aide to Congressman Sherman.
I would say that for every time a source’s name is revealed by action of the Justice Department, there are 10,000 times or 100,000 times when a source is revealed because of
miscommunication between the source and the journalist, where you though it was off the record and, whoops, it wasn’t or the journalist was wrong on that or the source was wrong on that or the journalist made a mistake or the journalist’s notes went to another journalist and whether intentionally or with great just zeal to make it a good story.
So I would say you would have to be crazy to be a source and worry about the Justice Department. It is like worrying about being hit by lightning as opposed to all the other ways in which a source’s name can be revealed.
I would like to focus on the definition of journalism found in the bill that this hearing focuses on.
Ms. Brand, the definition of journalism in the bill would include almost everyone I know would qualify as a journalist, certainly every Member of Congress. We are all engaged in gathering, preparing, collecting, recording and writing and publishing news and information of concern on local, national or international events or matters of public interest.
That certainly covers every blogger. It certainly covers everybody with a Web site that deals with issues of national concern. It may cover everybody who just contributes to other folks’ blogs.
The Justice Department has guidelines. Who qualifies as a journalist under those guidelines?
Ms. Brand. I don’t believe that the Department’s guidelines define the media. I think everyone sort of understands what the media—-
Mr. Sherman. That would give me a grave risk, because I would think Attorney General Gonzales would consider certain–in drawing the line, might exclude from journalists some of my liberal and progressive friends and include some folks with conservative views.
So as long as we have extremely vague standards in the Justice Department, I would hate to be a stringer for the Trotskyite newspaper and love to be a stringer for Fox News if human beings at the Justice Department was going to determine who qualified.
Ms. Brand. I am quite sure that distinctions are not made on the basis of an impression of the bent of a paper one way or the other. Our primary concern with the definition of journalism in the bill is that it would enable anyone who doesn’t want to provide evidence, for one reason or another, to find a way to put themselves within that broad category.
Mr. Sherman. Yes. I would say anyone engaged in any illegal action would immediately put up a blog and try to get journalistic protection, because–and all of us could be–as I think all of my friends are journalists and anybody who wanted to avail themselves of this bill could easily qualify as a journalist under this definition.
I look forward to trying to find a better definition. And I believe my time has expired.
Mr. Boucher. Thank you very much, Mr. Sherman.