[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 188 Introduced in Senate (IS)]
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119th CONGRESS
1st Session
S. 188
To prohibit Federal employees and contractors from directing online
platforms to censor any speech that is protected by the First Amendment
to the Constitution of the United States, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 22, 2025
Mr. Paul (for himself, Mr. Lee, Mr. Schmitt, and Ms. Lummis) introduced
the following bill; which was read twice and referred to the Committee
on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To prohibit Federal employees and contractors from directing online
platforms to censor any speech that is protected by the First Amendment
to the Constitution of the United States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Free Speech Protection Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Covered information.--The term ``covered information''
means information relating to--
(A) a phone call;
(B) any type of digital communication, including a
post on a covered platform, an e-mail, a text, and a
direct message;
(C) a photo;
(D) shopping and commerce history;
(E) location data, including a driving route and
ride hailing information;
(F) an IP address;
(G) metadata;
(H) search history;
(I) the name, age, or demographic information of a
user of a covered platform; and
(J) a calendar item.
(2) Covered platform.--The term ``covered platform''
means--
(A) an interactive computer service, as that term
is defined in section 230(f) of the Communications Act
of 1934 (47 U.S.C. 230(f)); and
(B) any platform through which a media organization
disseminates information, without regard to whether the
organization disseminates that information--
(i) through broadcast or print;
(ii) online; or
(iii) through any other channel.
(3) Director.--The term ``Director'' means the Director of
the Office of Management and Budget.
(4) Employee.--
(A) In general.--Except where otherwise expressly
provided, the term ``employee''--
(i) means an employee of an Executive
agency; and
(ii) includes--
(I) an individual, other than an
employee of an Executive agency,
working under a contract with an
Executive agency; and
(II) the President and the Vice
President.
(B) Rule of construction.--With respect to an
individual described in subparagraph (A)(ii)(I), solely
for the purposes of this Act, the Executive agency that
has entered into the contract under which the employee
is working shall be construed to be the Executive
agency employing the employee.
(5) Executive agency.--The term ``Executive agency''--
(A) has the meaning given the term in section 105
of title 5, United States Code; and
(B) includes the Executive Office of the President.
(6) Provider.--The term ``provider'' means a provider of a
covered platform.
SEC. 3. FINDINGS.
Congress finds the following:
(1) The First Amendment to the Constitution of the United
States guarantees--
(A) freedoms concerning religion, expression,
assembly, and petition of the government;
(B) the freedom of expression by prohibiting the
government from restricting the press or the right of
an individual to speak freely; and
(C) the right of an individual to assemble
peaceably and to petition the government.
(2) Freedom of speech is an essential element of liberty
that restrains tyranny and empowers individuals.
(3) Writing in support of a Bill of Rights, Thomas
Jefferson stated that ``[t]here are rights which it is useless
to surrender to the government, and which yet, governments have
always been fond to invade. These are the rights of thinking
and publishing our thoughts by speaking or writing.''
(4) The Supreme Court of the United States (referred to in
this section as the ``Court'') has upheld the right to speak
free from governmental interference as a fundamental right.
(5) The Court, in Palko v. Connecticut, 302 U.S. 319
(1937), wrote that freedom of thought and speech ``is the
matrix, the indispensable condition, of nearly every other form
of freedom''.
(6) In Turner Broadcasting System, Inc. v. Federal
Communications Commission, 512 U.S. 622 (1994), the Court
stated the following: ``At the heart of the First Amendment
lies the principle that each person should decide for himself
or herself the ideas and beliefs deserving of expression,
consideration, and adherence. Our political system and cultural
life rest upon this ideal. Government action that stifles
speech on account of its message, or that requires the
utterance of a particular message favored by the Government,
contravenes this essential right . . . [and poses] the inherent
risk that Government seeks not to advance a legitimate
regulatory goal, but to suppress unpopular ideas or manipulate
the public debate through coercion rather than persuasion.
These restrictions `rais[e] the specter that the Government may
effectively drive certain ideas or viewpoints from the
marketplace.' For these reasons, the First Amendment, subject
only to narrow and well-understood exceptions, does not
countenance government control over the content of messages
expressed by private individuals.''
(7) In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the
Court explained that the First Amendment to the Constitution of
the United States ``generally prevents government from
proscribing speech, or even expressive conduct, because of
disapproval of the ideas expressed. Content-based restrictions
are presumptively invalid.''
(8) The case of Brandenburg v. Ohio, 395 U.S. 444 (1969),
stands for the proposition that speech can be suppressed only
if the speech is intended, and is likely to produce, imminent
lawless action.
(9) Justice William Brennan, in his majority opinion for
the Court in Texas v. Johnson, 491 U.S. 397 (1989), asserted
that ``[i]f there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable.''
(10) Justice Neil Gorsuch, in his majority opinion for the
Court in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023),
stated, ``The First Amendment envisions the United States as a
rich and complex place where all persons are free to think and
speak as they wish, not as the government demands.''
(11) As evidenced in disclosures from various social media
companies, Federal officials in recent years have sought to
censor legal speech on platforms operated by those companies by
using the power of their offices to influence what opinions,
views, and other content that users of those platforms may
disseminate.
(12) White House officials and officials of Executive
agencies sought to silence narratives on social media platforms
on issues relating to the COVID-19 pandemic.
(13) The Centers for Disease Control and Prevention engaged
with officials at Facebook and Twitter to request that certain
posts be flagged as ``disinformation'' and held regular
meetings with those companies to share instances of what
government officials determined to be ``misinformation'' about
the COVID-19 pandemic that had been spread on the platforms
operated by those companies.
(14) In the midst of the 2020 election cycle, the Federal
Bureau of Investigation communicated with high-level technology
company executives and suggested that a New York Post story
regarding the contents of Hunter Biden's laptop were part of a
``hack and leak'' operation.
(15) On April 27, 2022, the Department of Homeland Security
announced the creation of a Disinformation Governance Board
(referred to in this paragraph as the ``Board''). The Director
of the Board, Nina Jankowicz, sought to establish an ``analytic
exchange'' with ``industry partners''. In congressional
testimony, Secretary of Homeland Security Alejandro Mayorkas
provided misleading testimony about the actions of the Board.
(16) Since 2020, 2 nonprofit organizations affiliated with
the Global Disinformation Index (referred to in this paragraph
as ``GDI'') have received a total of $330,000 in grants from
Federal agencies. GDI maintains a list of ``global news
publications rated high risk for disinformation''. Major
advertising companies seek guidance from this purported
``nonpartisan'' group to determine where advertising money
should be spent. Despite the self-proclaimed ``nonpartisan''
nature of the list, GDI includes a host of reputable media
outlets, such as Reason, RealClearPolitics, and the New York
Post.
SEC. 4. EMPLOYEE PROHIBITIONS.
(a) Prohibitions.--
(1) In general.--An employee acting under official
authority or influence may not--
(A) use any form of communication (without regard
to whether the communication is visible to members of
the public) to direct, coerce, compel, or encourage a
provider to take, suggest or imply that a provider
should take, or request that a provider take any action
to censor speech that is protected by the Constitution
of the United States, including by--
(i) removing that speech from the
applicable covered platform;
(ii) suppressing that speech on the
applicable covered platform;
(iii) removing or suspending a particular
user (or a class of users) from the applicable
covered platform or otherwise limiting the
access of a particular user (or a class of
users) to the covered platform;
(iv) labeling that speech as
disinformation, misinformation, or false, or by
making any similar characterization with
respect to the speech; or
(v) otherwise blocking, banning, deleting,
deprioritizing, demonetizing, deboosting,
limiting the reach of, or restricting access to
the speech;
(B) direct or encourage a provider to share with an
Executive agency covered information containing data or
information regarding a particular topic, or a user or
group of users on the applicable covered platform,
including any covered information shared or stored by
users on the covered platform;
(C) work, directly or indirectly, with any private
or public entity or person to take an action that is
prohibited under subparagraph (A) or (B); or
(D) on behalf of the Executive agency employing the
employee--
(i) enter into a partnership with a
provider to monitor any content disseminated on
the applicable covered platform; or
(ii) solicit, accept, or enter into a
contract or other agreement (including a no-
cost agreement) for free advertising or another
promotion on a covered platform.
(2) Exception.--Notwithstanding subparagraph (B) of
paragraph (1), the prohibition under that subparagraph shall
not apply with respect to an action by an Executive agency or
employee pursuant to a warrant that is issued by--
(A) a court of the United States of competent
jurisdiction in accordance with the procedures
described in rule 41 of the Federal Rules of Criminal
Procedure; or
(B) a State court of competent jurisdiction.
(3) Employee discipline.--
(A) In general.--Notwithstanding any provision of
title 5, United States Code, and subject to
subparagraph (B), the head of an Executive agency
employing an employee who violates any provision of
paragraph (1) (or, in the case of the head of an
Executive agency who violates any provision of
paragraph (1), the President) shall impose on that
employee--
(i) disciplinary action consisting of
removal, reduction in grade, suspension, or
debarment from employment with the United
States;
(ii) a civil penalty in an amount that is
not less than $10,000;
(iii) ineligibility for any annuity under
chapter 83 or 84 of title 5, United States
Code; and
(iv) permanent revocation of any applicable
security clearance held by the employee.
(B) Specific contractor discipline.--In the case of
an employee described in section 2(4)(A)(ii)(I) who
violates any provision of paragraph (1), in addition to
any discipline that may be applicable under
subparagraph (A) of this paragraph, that employee shall
be barred from working under any contract with the
Federal Government.
(b) Private Right of Action.--
(1) In general.--A person, the account, content, speech, or
other information of which has been affected in violation of
this section, may bring a civil action in the United States
District Court for the District of Columbia for reasonable
attorneys' fees, injunctive relief, and actual damages
against--
(A) the applicable Executive agency; and
(B) the employee of the applicable Executive agency
who committed the violation.
(2) Presumption of liability.--In a civil action brought
under paragraph (1), there shall be a rebuttable presumption
against the applicable Executive agency or employee if the
person bringing the action demonstrates that the applicable
employee communicated with a provider on a matter relating to--
(A) covered information with respect to that
person; or
(B) a statement made by that person on the
applicable covered platform.
SEC. 5. REPORTING REQUIREMENTS.
(a) In General.--Not later than 90 days after the date of enactment
of this Act, and not less frequently than once every 90 days
thereafter, the head of each Executive agency shall submit to the
Director and the chair and ranking member of the Committee on Homeland
Security and Governmental Affairs of the Senate, the Committee on the
Judiciary of the Senate, the Committee on Oversight and Government
Reform of the House of Representatives, and the Committee on the
Judiciary of the House of Representatives a report that discloses, for
the period covered by the report, each communication between a
representative of a provider and an employee of that Executive agency--
(1) including any such communication that constitutes a
violation of section 4(a)(1); and
(2) not including any such communication that relates to
combating child pornography or exploitation, human trafficking,
or the illegal transporting or transacting in controlled
substances.
(b) Contents.--Each report submitted under subsection (a) shall
include, with respect to a communication described in that subsection--
(1) the name and professional title of each employee and
each representative of a provider engaged in the communication;
and
(2) if the communication constitutes a violation of section
4(a)(1)--
(A) a detailed explanation of the nature of the
violation; and
(B) the date of the violation.
(c) Publication.--
(1) In general.--Not later than 5 days after the date on
which the Director receives a report under subsection (a), the
Director shall--
(A) collect the report and assign the report a
unique tracking number; and
(B) publish on a publicly accessible and searchable
website the contents of the report and the tracking
number for the report.
(2) Subject of report.--With respect to a report submitted
pursuant to subsection (a) of which an individual is a subject,
not later than the end of the business day following the
business day on which the report is submitted, the Director
shall make a reasonable effort to contact any person or entity
directly affected by a violation of this Act described in the
report to inform that person of the report.
SEC. 6. CYBERSECURITY INFRASTRUCTURE AND SECURITY AGENCY REPORT.
Not later than 180 days after the date of enactment of this Act,
the Secretary of Homeland Security shall submit to the Director and the
chair and ranking member of the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on Oversight and
Government Reform of the House of Representatives a report that
discloses any action of an employee of the Cybersecurity and
Infrastructure Security Agency that--
(1) occurred between November 16, 2018, and the date of
enactment of this Act; and
(2) would have been in violation of section 4(a)(1).
SEC. 7. TERMINATION OF DISINFORMATION GOVERNANCE BOARD.
(a) Termination.--The Disinformation Governance Board established
by the Department of Homeland Security, if in existence on the date of
enactment of this Act, is terminated.
(b) Prohibition Against Federal Funding.--No Federal funds may be
used to establish or support the activities of any other entity that is
substantially similar to the Disinformation Governance Board terminated
pursuant to subsection (a).
SEC. 8. PROHIBITION ON MISINFORMATION AND DISINFORMATION GRANTS.
The head of an Executive agency may not award a grant relating to
programming on misinformation or disinformation.
SEC. 9. GRANT TERMS.
(a) Certification.--The recipient of a grant awarded by an
Executive agency on or after the date of enactment of this Act shall
certify to the head of the Executive agency that the recipient or a
subgrantee of the recipient, during the term of the grant, will not
designate any creator of news content, regardless of medium, as a
source of misinformation or disinformation.
(b) Publication.--Not later than 10 days after the date on which an
Executive agency awards a grant, the head of the Executive agency shall
publish the certification received under subsection (a) with respect to
the grant on Grants.gov, or any successor website.
(c) Penalty.--Upon a determination by the head of an Executive
agency that a recipient or subgrantee of a recipient has violated the
certification of the recipient under subsection (a), the recipient or
subgrantee, respectively, shall--
(1) repay the grant associated with the certification; and
(2) be ineligible to receive a grant from the Executive
agency.
SEC. 10. PRESIDENTIAL WAR POWERS UNDER THE COMMUNICATIONS ACT OF 1934.
(a) In General.--Section 706 of the Communications Act of 1934 (47
U.S.C. 606) is amended--
(1) by striking subsections (c) through (g); and
(2) by redesignating subsection (h) as subsection (c).
(b) Technical and Conforming Amendments.--Section 309(h) of the
Communications Act of 1934 (47 U.S.C. 309(h)) is amended--
(1) by inserting ``and'' before ``(2)''; and
(2) by striking ``Act;'' and all that follows through the
period at the end and inserting the following: ``Act.''.
SEC. 11. APPLICABILITY OF FOIA.
(a) Definition.--In this section, the term ``agency'' has the
meaning given the term in section 551 of title 5, United States Code.
(b) Applicability.--Notwithstanding any provision of section 552 of
title 5, United States Code, any request made to an agency pursuant to
that section for records relating to communication between an employee
and a representative of a provider--
(1) shall be granted by the agency without regard to any
exemption under subsection (b) of that section, except the
agency may not release any identifying information of a user of
a covered platform without express written consent granted by
the user to the agency; and
(2) may not be granted by the agency if the communication
occurred pursuant to a warrant described in section 4(a)(2).
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