Short title

This Act may be cited as the

Free Speech Defense Act

Findings

Congress finds the following:(1)The First Amendment guarantees freedoms concerning religion, expression, assembly, and petition of the government. The First Amendment guarantees the freedom of expression by prohibiting the government from restricting the press or the right of an individual to speak freely. The First Amendment also guarantees the right of an individual to assemble peaceably and to petition the government.(2)The Fourth Amendment states that each individual is secure from unreasonable searches and seizures of property by the government. The Fourth Amendment protects against arbitrary arrests, wiretaps, and other forms of surveillance conducted without a search warrant.(3)In July 2021, the White House press secretary, Jen Psaki, admitted that the White House was working with social media companies to identify misinformation.(4)Specifically, Psaki said, [W]e’re regularly making sure social media platforms are aware of the latest narratives, dangerous to public health that we and many other Americans are seeing across all of social and traditional media. Psaki also said, [W]e work to engage with them to better understand the enforcement of social media platform policies.(5)286 pages of documents produced in July 2022 by the Centers for Disease Control and Prevention, in response to a Freedom of Information Act request submitted by the America First Legal Foundation, revealed shocking information, including the following:(A)The Centers for Disease Control and Prevention sent to officials of Twitter a chart of tweets that the Centers for Disease Control and Prevention determined to be misinformation.(B)The Centers for Disease Control and Prevention held regular BOLO (Be On The Lookout) meetings in which the Centers for Disease Control and Prevention would share with social media companies, including Twitter and Facebook, what the Centers for Disease Control and Prevention determined to be misinformation. In the meetings, the Centers for Disease Control and Prevention would provide slide decks requesting, among other things, [p]lease do not share outside your trust and safety teams.(C)The Centers for Disease Control and Prevention recommended to Twitter that information about the Vaccine Adverse Event Reporting System be added to tweets.(D)Officials from the Centers for Disease Control and Prevention directly engaged with Facebook, requesting that Facebook flag certain posts as disinformation and ensure that verifiable information sources were not blocked because posts on Facebook by State Health Departments were being blocked as vaccine misinformation.(E)The Centers for Disease Control and Prevention created a COVID–19 Misinformation Reporting Channel for the Centers for Disease Control and Prevention and the Census Bureau to make reports to Facebook and held a training meeting about the Misinformation Reporting Channel.(F)$15,000,000 of Facebook advertising credits were provided to the Centers for Disease Control and Prevention and the Department of Health and Human Services as a non-monetary gift to promote vaccines, social distancing, travel, and priority communication messages, which may have violated the limitation on voluntary services described in section 1342 of the Antideficiency Act (31 U.S.C. 1342).(6)The Secretary of Homeland Security, Alejandro Mayorkas, failed to provide clear answers to Congress about the purpose of the Disinformation Governance Board and the selection of Nina Jankowicz to lead the Disinformation Governance Board.(7)Revealing whistleblower documents uncovered by Senators Josh Hawley and Chuck Grassley show the shocking extent to which the Disinformation Governance Board was willing to spy on Americans, without a warrant, and flag posts for social media companies as so-called disinformation.

Sense of Congress

It is the sense of Congress that:(1)The records produced by the Centers for Disease Control and Prevention in response to the Freedom of Information Act request described in section 2(5) reveal the extent to which the Biden Administration is willing to engage in unconstitutional and otherwise unlawful activities in total disregard of the rights of the American people. (2)Secretary Mayorkas, in congressional committee testimony, failed to provide clear answers to Congress about the purpose of the Disinformation Governance Board. (3)The antidote to misinformation and disinformation is not censorship but more information, so the American people can make informed decisions independently.(4)The Federal Government should not be allowed to circumvent the Constitution of the United States through intermediaries and third parties to violate the rights of the American people to information and freedom from intrusion by the Federal Government, even if the information is not consistent with the views of officials in the Federal Government.

Prohibition against Federal regulation of social media companies

(a)

Prohibition against regulation

(1)

Prohibition

Except as provided in paragraph (2), the head of an agency may not direct or encourage a social media company to—(A)remove or suspend a user from the social media platform of the social media company;(B)label content on the social media platform of the social media company as information, disinformation, true, false, or any other similar characterization; or(C)share with the agency data or information about a particular topic or group of users on the social media platform of the social media company, including—(i)the name, age, or demographic of the users; and(ii)the content such users share on the social media platform of the social media company.(2)

Exceptions

The prohibitions described in subparagraphs (A) and (C) of paragraph (1) do not apply to an action taken by the head of an agency—(A)pursuant to a warrant—(i)issued by a Federal court of competent jurisdiction in accordance with the procedures described in rule 41 of the Federal Rules of Criminal Procedure; or(ii)issued by a State court of competent jurisdiction; or(B)pursuant to a criminal investigation into, or in response to, an immediate threat to public safety, including—(i)child exploitation;(ii)human trafficking;(iii)active streaming of a crime in progress or another immediate threat to public safety; or(iv)activity by a foreign terrorist organization (as designated by the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a))).(b)

Prohibition against public-Private partnerships

(1)

Prohibition

The head of an agency may not enter into a public-private partnership with a social media company to monitor any content disseminated on the social media platform of the social media company.(2)

Exception

The prohibition described in paragraph (1) does not apply to a public-private partnership between an agency and a social media platform relating to addressing immediate threats to public safety.(3)

Termination of existing public-private partnerships

Any public-private partnership described in paragraph (1), if in existence on the date of the enactment of this Act, is terminated.(c)

Prohibition against Federal funding

Federal funds may not be used to fund any entity that—(1)classifies or facilitates the classification of any communication as information, misinformation, malinformation, disinformation, or any other similar designation; or(2)instructs, influences, directs, or recommends that private companies engage in any censorship, prohibition, or obstruction of lawful and constitutionally protected speech on a social media platform, including by—(A)terminating an account of a user;(B)temporarily or permanently suspending an account of a user;(C)imposing a warning or strike against an account of a user to chill or deter future speech;(D)shadowbanning, or in any way manipulating the audience or reach of, a user;(E)demonetizing a type of user or content;(F)adjusting algorithms to suppress or de-emphasize user-generated content;(G)deboosting a type of content or user;(H)promoting or demoting content;(I)placing a warning label or explanatory note on any content;(J)suppressing content in the feed of a user;(K)promoting negative comments about a type of disfavored content;(L)requiring an additional click-through to access content;(M)deplatforming any content or user; or(N)any other such method.(d)

Prohibition against soliciting or accepting free or reduced-Cost social media advertising

(1)

In general

An agency employee acting in an official capacity may not solicit or accept, or enter into a contract or other agreement (including a no-cost agreement) for, free or reduced-cost advertising or other promotion on the social media platform of a social media company.(2)

Exception

(A)

In general

The prohibition described in paragraph (1) does not apply to an action taken by an agency employee to address a natural disaster or another immediate threat to public safety. (B)

Exclusion

The exception described in subparagraph (A) does not include a public health emergency.(3)

Limitation on funds

No Federal funds may be obligated or expended to—(A)enter into a contract or other agreement (including a no-cost agreement) for free or reduced-cost advertising or other promotion on behalf of the Federal Government on the social media platform of a social media company; or(B)pay the salary or expenses of any agency employee to solicit or accept free or reduced-cost advertising or other promotion on behalf of the Federal Government on the social media platform of a social media company.(e)

Additional limitations for senior Federal officials

(1)

In general

No senior Federal official may solicit, accept, or use, in their personal capacity, any advertising from a social media company that is provided free of charge or at a reduced rate or are otherwise gratuitous.(2)

Exception

Except for a public health emergency, the prohibition described in paragraph (1) shall not apply in circumstances where the United States Government is legally authorized to accept free or subsidized advertising on social media platforms, including any instance described in subsection (a)(2)(B)(iii), or for public safety announcements, as determined by the relevant agency head, in consultation with the Office of Government Ethics.(f)

Penalties for agency employees and senior Federal officials

An agency employee or senior Federal official who knowingly and willfully violates subsection (d) or subsection (e), respectively, shall be fined not more than $5,000, imprisoned for not more than 2 years, or both. (g)

Private right of action

An individual whose account, content, or information on the social media platform of a social media company has been affected in violation of this Act may file a civil action against the United States in the United States District Court for the District of Columbia for reasonable attorneys’ fees, injunctive relief, and actual damages.(h)

Report

Not later than 240 days after the date of the enactment of this section, and annually thereafter through the tenth subsequent year, the Attorney General, in consultation with the Assistant Attorney General for Civil Rights and the Office of Special Counsel, shall submit to the appropriate congressional committees a report evaluating the compliance by agencies with this Act, including a description of any action by the head of an agency to—(1)consult with a social media company about labeling content on the social media platform of the social media company as described in subsection (a)(1)(B);(2)consult with any third party about censorship by an agency employee; or(3)engage in any other prohibited activity under this Act.(i)

Severability

If any provision of this Act, or the application of any such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, and the application of such provision to any other person or circumstance, shall not be affected by the holding.

Definitions

In this Act:(1)

Agency

The term agency has the meaning given such term in section 551 of title 5, United States Code.(2)

Appropriate congressional committees

The term appropriate congressional committees means—(A)the Committee on the Judiciary and the Committee on Oversight and Reform of the House of Representatives; and(B)the Committee on the Judiciary and the Committee on Homeland Security and Governmental Affairs of the Senate.(3)

Public-private partnership

The term public-private partnership means a cooperative arrangement between 1 or more agencies and an external organization, in which the arrangement is directly involved in monitoring content for public safety purposes.(4)

Senior Federal official

The term senior Federal official means any agency employee, including any member of the uniformed services (as that term is defined in section 101 of title 37, United States Code), whose basic rate of pay is at or above the rate of basic pay for level V of the Executive Schedule under section 5316 of title 5, United States Code. (5)

Social media company

The term social media company means a company that provides, in or affecting interstate or foreign commerce, a social media platform.(6)

Social media platform

The term social media platform—(A)means a website or internet medium that—(i)permits a person to become a registered user, establish an account, or create a profile for the purpose of allowing users to create, share, and view user-generated content through such an account or profile;(ii)primarily serves as a medium for users to interact with content generated by other users of the medium; and(iii)enables one or more users to generate content that can be viewed by other users of the medium; and(B)does not include—(i)an email program, email distribution lists, multi-person text message groups, or a website that is primarily for the purpose of internet commerce;(ii)a private platform or messaging service used by an entity solely to communicate with others employed by or affiliated with such entity; or(iii)an internet-based platform whose primary purpose is—(I)to allow users to post product reviews, business reviews, travel information and reviews; or(II)to provide news or entertainment content, but that may also include a comment section for users to discuss such news or entertainment content.(7)

State

The term State means each State of the United States, the District of Columbia, each commonwealth, territory, or possession of the United States, and each federally recognized Indian Tribe.