117 HR 9448 IH: Free Speech Defense Act
U.S. House of Representatives
2022-12-07
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I
117th CONGRESS
2d Session
H. R. 9448
IN THE HOUSE OF REPRESENTATIVES
December 7, 2022
Mr. Clyde (for himself, Mr. Comer, Mr. Cawthorn, Mr. Weber of Texas, Mrs. Miller of Illinois, Mr. Babin, Mr. LaMalfa, Mr. Biggs, Mr. Massie, Mr. Gaetz, and Mr. Moore of Alabama) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committees on Oversight and Reform, and Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To prohibit the Federal Government from taking certain action relating to social media companies, and for other purposes.
1.

Short title
This Act may be cited as the “Free Speech Defense Act”.
2.

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 so-called “Disinformation Governance Board” and the selection of Nina Jankowicz to lead the Disinformation Governance Board.
(7)
Damning whistleblower documents revealed 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”.
3.

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)
The “Disinformation Governance Board” established by the Department of Homeland Security is unconstitutional and should be terminated immediately.
(3)
The failure of Secretary Mayorkas to provide clear answers about the Disinformation Governance Board is disqualifying, and Secretary Mayorkas should resign immediately.
(4)
The antidote to “misinformation” and “disinformation” is not censorship but more information, so the American people can make informed decisions independently.
(5)
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.
4.

Prohibition against Federal regulation of social media companies
(a)

Prohibition against regulation
(1)

Prohibition
Except as provided in paragraph (2), the Federal Government 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 Federal Government 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)

Exception
The prohibitions described in subparagraphs (A) and (C) of paragraph (1) do not apply to an action taken by the Federal Government pursuant to a warrant—
(A)
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
(B)
issued by a State court of competent jurisdiction.
(b)

Prohibition against public-Private partnerships
(1)

Prohibition
The Federal Government 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)

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)

Termination of Disinformation Governance Board
(1)

Termination
The Disinformation Governance Board established by the Department of Homeland Security, if in existence on the date of the enactment of this Act, is terminated.
(2)

Prohibition against Federal funding
Federal funds may not be used to fund any other entity that is substantially similar to the Disinformation Governance Board terminated pursuant to paragraph (1).
(d)

Prohibition against soliciting or accepting free social media advertising
(1)

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

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 advertising or other promotion 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 advertising or other promotion on the social media platform of a social media company.
(e)

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.
(f)

Report
Not later than 180 days after the date of the enactment of this section, and annually thereafter, the Attorney General, in consultation with the Assistant Attorney General for Civil Rights, shall submit to the appropriate congressional committees a report evaluating the compliance by the Federal Government 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); or
(2)
engage in any other prohibited activity under this Act.
(g)

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.
5.

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 Homeland Security, the Committee on the Judiciary, and the Committee on Oversight and Reform of the House of Representatives; and
(B)
the Committee on Homeland Security and Governmental Affairs and the Committee on the Judiciary of the Senate.
(3)

Social media company
The term social media company means a company that provides, in or affecting interstate or foreign commerce, a social media platform.
(4)

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)
any such platform that serves fewer than 100,000 users;
(ii)
an email program, email distribution lists, multi-person text message groups, or a website that is primarily for the purpose of internet commerce;
(iii)
a private platform or messaging service used by an entity solely to communicate with others employed by or affiliated with such entity; or
(iv)
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.
(5)

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.