[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).
______