119-s188

[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 188 Introduced in Senate

    (IS) ]

<DOC>

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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