[Congressional Record Volume 170, Number 23 (Thursday, February 8, 2024)]
[Senate]
[Pages S534-S536]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 1421. Mr. PAUL submitted an amendment intended to be proposed by 
him to the bill H.R. 815, to amend title 38, United States Code, to 
make certain improvements relating to the eligibility of veterans to 
receive reimbursement for emergency treatment furnished through the 
Veterans Community Care program, and for other purposes; which was 
ordered to lie on the table; as follows:

       At the appropriate place, insert the following:

                  DIVISION ___--FREE SPEECH PROTECTION

     SEC. ___01. SHORT TITLE.

       This division may be cited as the ``Free Speech Protection 
     Act''.

     SEC. ___02. DEFINITIONS.

       In this division:
       (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 division, 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. ___03. 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, ___ U.S. ___ (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.

[[Page S535]]

  


     SEC. ___04. 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 ___02(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. ___05. 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 Accountability 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 ___04(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 
     ___04(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 division 
     described in the report to inform that person of the report.

     SEC. ___06. 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 Accountability 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 ___04(a)(1).

     SEC. ___07. 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. ___08. 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. ___09. 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--

[[Page S536]]

       (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 
     ___04(a)(2).
                                 ______