[House Report 118-5]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 118-5
======================================================================
PROTECTING SPEECH FROM GOVERNMENT INTERFERENCE ACT
_______
March 2, 2023.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Comer, from the Committee on Oversight and Accountability,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 140]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Accountability, to whom was
referred the bill (H.R. 140) to amend title 5, United States
Code, to prohibit Federal employees from advocating for
censorship of viewpoints in their official capacity, and for
other purposes, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.
CONTENTS
Page
Summary and Purpose of Legislation............................... 4
Background and Need for Legislation.............................. 4
Section-by-Section Analysis...................................... 7
Legislative History.............................................. 8
Committee Consideration.......................................... 9
Roll Call Votes.................................................. 9
Explanation of Amendments........................................ 18
List of Related Committee Hearings............................... 18
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 19
Statement of General Performance Goals and Objectives............ 19
Application of Law to the Legislative Branch..................... 19
Duplication of Federal Programs.................................. 19
Disclosure of Directed Rule Makings.............................. 19
Federal Advisory Committee Act Statement......................... 19
Unfunded Mandates Reform Act Statement........................... 20
Earmark Identification........................................... 20
Committee Cost Estimate.......................................... 20
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 20
Changes in Existing Law Made by the Bill, as Reported............ 21
Minority Views................................................... 23
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting Speech from Government
Interference Act''.
SEC. 2. PROHIBITION ON FEDERAL EMPLOYEE CENSORSHIP.
(a) In General.--Chapter 73 of title 5, United States Code, is
amended by adding at the end the following:
``SUBCHAPTER VIII--PROHIBITION ON FEDERAL EMPLOYEE CENSORSHIP
``Sec. 7381. Policy regarding Federal employee censorship
``It is the policy of the Congress that employees acting in their
official capacity should neither take action within their authority or
influence to promote the censorship of any lawful speech, nor advocate
that a third party, including a private entity, censor such speech.
``Sec. 7382. Prohibition on Federal employee censorship
``(a) In General.--An employee may not--
``(1) use the employee's official authority to censor any
private entity, including outside of normal duty hours and
while such employee is away from the employee's normal duty
post; or
``(2) engage in censorship of a private entity--
``(A) while the employee is on duty;
``(B) in any room or building occupied in the
discharge of official duties by an individual employed
or holding office in the Government of the United
States or any agency or instrumentality thereof;
``(C) while wearing a uniform or official insignia
identifying the office or position of the employee;
``(D) while using any vehicle owned or leased by the
Government of the United States or any agency or
instrumentality thereof; or
``(E) while using any information system or
information technology (as defined under section 11101
of title 40).
``(b) Exceptions for Law Enforcement Functions and Reporting
Requirements.--
``(1) In general.--Nothing in this section shall be construed
to prohibit an employee from engaging in lawful actions within
the official authority of such employee for the purpose of
exercising legitimate law enforcement functions, including
activities to--
``(A) combat child pornography and exploitation,
human trafficking, or the illegal transporting of or
transacting in controlled substances; and
``(B) safeguarding, or preventing, the unlawful
dissemination of properly classified national security
information.
``(2) Reporting.--
``(A) In general.--Not later than 72 hours before an
employee exercises a legitimate law enforcement
function to take any action to censor any lawful speech
(in this paragraph referred to as a `censorship
action'), but not including any such action relating to
activities described under subparagraph (A) or (B) of
paragraph (1), the head of the agency that employs the
employee shall submit, to the Office of Special Counsel
and the chair and ranking member of the committees of
Congress described under subparagraph (B), a report
that includes--
``(i) an overview of the action, or actions,
to be taken, including a summary of the action
being taken and the rationale for why a
censorship action is necessary;
``(ii) the name of the entity which the
action is being requested of;
``(iii) the person and entity targeted by the
censorship action, including the associated
name or number of any account used or
maintained by the entity and a description of
the specific speech content targeted;
``(iv) the agency's legal authority for
exercising the law enforcement function;
``(v) the agency employee or employees
involved in the censorship action, including
their position and any direct supervisor;
``(vi) a list of other agencies that have
been involved, consulted, or communicated with
in coordination with the censorship action; and
``(vii) a classified annex, if the agency
head deems it appropriate.
``(B) Committees.--The committees of Congress
described under this subparagraph are the following:
``(i) The Committee on Oversight and
Accountability, the Committee on the Judiciary,
and the Committee on Energy and Commerce of the
House of Representatives; and
``(ii) The Committee on Homeland Security and
Governmental Affairs, the Committee on the
Judiciary, and the Committee on Commerce,
Science, and Transportation of the Senate.
``(C) Clarification of office of special counsel
reporting requirements.--The reporting requirements in
this paragraph do not apply to the Office of Special
Counsel's advisory and enforcement functions under
subchapter II of chapter 12.
``(c) Penalties.--
``(1) In general.--An employee who violates this section
shall be subject to--
``(A) disciplinary action consisting of removal,
reduction in grade, debarment from Federal employment
for a period not to exceed 5 years, suspension, or
reprimand;
``(B) an assessment of a civil penalty not to exceed
$1,000; or
``(C) any combination of the penalties described in
subparagraph (A) or (B).
``(2) Application to senior government officials.--Paragraph
(1)(B) shall be applied by substituting `$10,000' for `$1,000'
for any employee who is--
``(A) paid from an appropriation for the White House
Office; or
``(B) appointed by the President, by and with the
advice and consent of the Senate;
``(d) Enforcement.--This section shall be enforced in the same manner
as subchapter III of this chapter.
``(e) Definitions.--In this subchapter--
``(1) the term `censor' or `censorship' means influencing or
coercing, or directing another to influence or coerce, for--
``(A) the removal or suppression of lawful speech, in
whole or in part, from or on any interactive computer
service;
``(B) the addition of any disclaimer, information, or
other alert to lawful speech being expressed on an
interactive computer service; or
``(C) the removal or restriction of access of any
person or entity on an interactive computer service
generally available to the public, unless such person
or entity is engaged in unlawful speech or criminal
activities on such service;
``(2) the term `employee' has the meaning given that term in
section 7322;
``(3) the term `interactive computer service' has the meaning
given that term in section 230(f) of the Communications Act of
1934 (47 U.S.C. 230(f)); and
``(4) the term `lawful speech' means speech protected by the
First Amendment of the Constitution.''.
(b) Clerical Amendment.--The table of sections for chapter 73 of
title 5, United States Code, is amended by adding at the end the
following:
``subchapter viii--prohibition on federal employee censorship
``7381. Policy regarding Federal employee censorship.
``7382. Prohibition on Federal employee censorship.''.
(c) Including Censorship Activities Under Jurisdiction of Office of
Special Counsel.--Strike paragraph (1) of section 1216(a) of title 5,
United States Code, and insert the following:
``(1) political activity and censorship prohibited under
subchapter III and subchapter VIII of chapter 73, relating to
political and censorship activities, respectively, by Federal
employees;''.
(d) Rule of Construction.--Nothing in this Act or any amendment made
by this Act should be interpreted as prohibiting a lawful action by a
Federal agency to enforce a Federal law or regulation, to establish or
enforce the terms and conditions of Federal financial assistance, or to
prohibit a Federal employee from using an official Federal account on
an interactive computer service to communicate an official policy
position, and relevant information, to the public, or provide
information through normal press and public affairs relations.
(e) Severability.--If any provision of this Act or any amendment made
by this Act, or the application of a provision of this Act or an
amendment made by this Act to any person or circumstance, is held to be
unconstitutional, the remainder of this Act, and the application of the
provisions to any person or circumstance, shall not be affected by the
holding.
SUMMARY AND PURPOSE OF LEGISLATION
H.R. 140 expands the Hatch Act--the law prohibiting federal
employees from engaging in political activities in their
official capacity--to expressly prohibit those same federal
employees from censoring lawful speech. Additionally, H.R. 140
prohibits agency employees from using their authority to
influence or coerce a private sector entity to censor--
including to remove, suppress, restrict, or add disclaimers or
alerts to--any lawful speech posted on its service by a person
or entity. H.R. 140 provides an exception for legitimate law
enforcement activities reported to Congress for review.
BACKGROUND AND NEED FOR LEGISLATION
On July 15, 2021, Jen Psaki, then the White House Press
Secretary, used a press briefing to call for Facebook to ban
specific accounts from its platform. During this press
briefing, Psaki stated ``We're flagging problematic posts for
Facebook that spread disinformation.''\1\ The next day, July
16, 2021, Jen Psaki clarified the administration's involvement
further by stating that the Biden White House was in regular
contact with social media companies to flag or raise concerns
about certain types of information on their platforms.\2\
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\1\Jen Psaki, Press Secretary, White House, and Dr. Vivek H.
Murthy, Surgeon General, Press Briefing (July 15, 2021).
\2\Jen Psaki, Press Secretary, White House, Press Briefing (July
16, 2021).
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In August 2022, Mark Zuckerburg confirmed that Facebook's
censorship of the New York Post story about Hunter Biden's
laptop followed warnings from the Federal Bureau of
Investigation (FBI) that Facebook should be cautious of
misinformation and foreign interference ahead of the 2020
election.\3\ Twitter's decision to censor the New York Post
story about Hunter Biden's laptop followed the company's close
relationship with state and federal officials--including the
FBI.\4\
---------------------------------------------------------------------------
\3\Jared Gans, Zuckerberg Tells Rogan Facebook Suppressed Hunter
Biden Laptop Story after FBI Warning, THE HILL (Aug. 26, 2022).
\4\GOP Oversight, Full Committee Hearing--Part 1: Twitter's Role in
Suppressing the Biden Laptop Story, YouTube (Feb. 8, 2023), https://
www.youtube.com/watch?v=-Fo_yD8r3w4.
---------------------------------------------------------------------------
It is the view of the Committee that federal government
employees should not have a role in enforcing, designing, or
altering a private-sector social media platform's content
moderation and community guideline policies. Government
censorship requests--that private companies remove or restrict
lawful speech--represent a serious threat to rights guaranteed
by the First Amendment.
A Cato Institute article titled ``Jawboning Against
Speech,'' outlines how the Biden administration's demands of
social media companies can be classified as jawboning because
these requests call for the removal of specific accounts from a
private speech platform and because these requests frequently
have been accompanied by threatening action (such as the repeal
of Section 230).\5\ The same article further articulates that
government interference generally, even without specific
regulatory threats, ``influence a platforms'' behavior''
regarding the implementation of community guidelines and
content moderation policies.\6\
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\5\Will Duffield, Jawboning Against Speech: How Government Bullying
Shapes the Rules of Social Media, CATO Institute (Sept. 12, 2022).
\6\Id.
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In August 2022, the Electronic Frontier Foundation (a
nonprofit that defends digital privacy and free speech) filed a
comment with the Meta Oversight Board asking the group to
consider the human rights concerns that arise from government
involvement in content moderation.\7\ As part of this comment,
the Electronic Frontier Foundation wrote that government
entities receive ``outsized influence to manipulate content
moderation systems for their own political goals--to control
public dialogue, suppress dissent, silence political opponents,
or blunt social movements.''\8\ Further still, the group asked
Meta to consider standards addressing misinformation: ``it is
far too easy for a government to flag all criticism of it as
`fake news.'''\9\
---------------------------------------------------------------------------
\7\Elec. Frontier Found., Comment of Electronic Frontier Foundation
to Oversight Board case 2022-007-IG-MR (2022).
\8\Id.
\9\Id.
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On February 8, 2023, the House Committee on Oversight and
Accountability held a hearing titled ``Protecting Speech from
Government Interference and Social Media Bias, Part 1:
Twitter's Role in Suppressing the Biden Laptop Story.''\10\
This hearing was held to investigate how and why Twitter
suppressed the New York Post story about Hunter Biden's laptop
even though the story was lawful speech and did not violate any
Twitter policy that had been regularly enforced.\11\
---------------------------------------------------------------------------
\10\GOP Oversight, Full Committee Hearing--Part 1: Twitter's Role
in Suppressing the Biden Laptop Story, YouTube (Feb. 8, 2023), https://
www.youtube.com/watch?v=-Fo_yD8r3w4.
\11\Id.
---------------------------------------------------------------------------
During this hearing Vijaya Gadde confirmed government
interference in Twitter's enforcement of its content moderation
policies, stating ``we receive legal demands to remove content
from the platform from the U.S. government and governments all
around the world.''\12\
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\12\Press Release, H. Comm. on Oversight & Accountability, The
Cover Up: Big Tech, The Swamp, and Mainstream Media Coordinated to
Censor Americans' Free Speech (Feb. 8, 2023) (on file with author).
---------------------------------------------------------------------------
In his written testimony, former Twitter Deputy General
Counsel, James Baker, called for federal legislation that would
``focus first on reasonable and effective limitations on
governmental actors.''\13\ Baker further specified that this
legislation should limit that nature and scope of government
interactions with private sector platforms and require
transparency and reporting when these interactions occur.\14\
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\13\Protecting Speech from Government Interference and Social Media
Bias, Part 1: Hearing Before H. Comm. On Oversight & Accountability,
118th Cong. _ (Feb. 8, 2023) (statement of James A. Baker, former
Deputy Gen. Counsel, Twitter).
\14\Id.
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The witness testimony and hearing findings have helped
inform H.R. 140 which, as reported by the Committee, creates
these reasonable limitations for federal government employees.
This legislation prohibits federal executive branch employees
from using their official authority--whether during normal
working hours and at their official duty stations, or not--to
influence or coerce a private-sector entity (e.g., a social
media internet platform which is defined as an `interactive
computer service' in the Act) to take an action to censor any
lawful speech (defined under the bill as First Amendment
protected speech).
Under the Act, `censorship' would constitute the following:
removing or suppressing speech on an internet platform; adding
any disclaimers, information, or alerts to speech expressed on
the internet platform; or removing or restricting personal or
organizational accounts on a publicly available internet
platform. It also prohibits federal employees from engaging in
censorship while on duty or while using federal resources such
as information systems (e.g., federal email accounts),
information technology (e.g., federal mobile devices),
insignia, vehicles, or government facilities.
Functionally, H.R. 140 adds a new subchapter to Chapter 73
of title 5 (``Suitability, Security, and Conduct'' of federal
employees) and utilizes the same existing advisory and
enforcement functions currently carried out by the U.S. Office
of Special Counsel (OSC) for Hatch Act oversight and
compliance. Employees with concerns about being directed or
ordered to take a censorship action prohibited by this Act have
two avenues to pursue. First, the established advisory opinion
function of the OSC would allow employees to reach out directly
and request guidance on their specific situation. For instance,
in Fiscal Year 2021, OSC responded to 1,043 advisory
requests.\15\ Furthermore, OSC is the same agency handling
whistleblower disclosures and filings of prohibited personnel
practices--such as whistleblower retaliation--which means they
have established practices for handling sensitive inquiries.
Second, coercion and context matter and likely would be
included in any investigation conducted by the OSC.
Additionally, the Act's definition of `censorship'--which makes
clear that ``directing another'' carry out a prohibited
censorship action is also prohibited (see new
Sec. 7382(e)(1))--should clarify the Congressional intent that
a covered employee have access to all existing means of
recourse, including OSC, if directed to take a prohibited
censorship action. With these safeguards in place, covered
employees should know that there is an outlet if presented with
a difficult decision.
---------------------------------------------------------------------------
\15\U.S. Office of Special Counsel, Annual Report to Congress for
Fiscal Year 2021 (2022).
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The Act also recognizes that many of the most senior
federal officials--such as the White House Press Secretary--
hold a position with far greater influence than a standard
career civil servant. Therefore, the Act incorporates an
increased civil penalty of $10,000 for the most senior
officials--defined as White House Office employees or Senate-
confirmed Presidential appointees--in order further deter
censorship actions.
Furthermore, H.R. 140 includes necessary and reasonable
exceptions including an explicit exception for lawful actions
to carryout legitimate law enforcement functions--with specific
enumerated functions listed in the Act. For law enforcement
actions that are not explicitly named under the exception, a
notification report to relevant congressional committees and
the Office of the Special Counsel (OSC) is required at least 72
hours before taking the censorship action. These reports will
provide timely transparency over the use of this necessary
exemption and include specifics about the action being taken,
including a summary justification, the specific entity and
speech targeted, and the agency's legal authority for taking
the action.
Finally, H.R. 140 incorporates a Rule of Construction to
clarify that this Act does not: prohibit a federal agency from
enforcing a federal law or regulation, which would put the
federal employee in conflict between their official duties and
the prohibition established by this Act; prohibit a federal
agency from establishing or enforcing the terms and conditions
of Federal financial assistance, which clarifies that federal
funding recipients still have to abide by the contractual
obligations stipulated in a federal award; prohibit a federal
employee from using a federal account to communicate relevant
information (i.e., engage in the public square through
official, federal communications channels); or prohibit
standard press and public affairs relations with journalists,
which may often involve direct communications with publishing
entities and journalists for the purposes of clarifying
information or correcting official quotations.
SECTION-BY-SECTION ANALYSIS
Sec. 1. Short title
The short title is the ``Protecting Speech from Government
Interference Act''.
Sec. 2. Prohibition on federal employee censorship
Subsection (a) amends Chapter 73 of title 5 of the United
States Code to add a new prohibition on federal employee
censorship.
Sec. 7381 specifies that it is the policy of Congress
that federal employees should not use their official
authority to censor lawful speech.
Sec. 7381(a) prohibits a federal employee from using
their official authority to censor a private entity.
This subsection also prohibits federal employees from
engaging in censorship while on duty or while using
government resources, including information systems,
information technology, insignia, vehicles, rooms, or
buildings.
Sec. 7381(b) establishes an exception for federal
employees exercising legitimate law enforcement
functions, including activities to combat child
pornography and exploitation, human trafficking, the
illegal transportation of and transaction in controlled
substances, and the dissemination of properly
classified national security information. This
subsection establishes a preemptive reporting
requirement to Congress for all federal employees that
exercise this exception.
This reporting requirement stipulates that a federal
employee must submit a report to Congress and the
Office of Special Counsel (OSC) no later than 72 hours
before they take a censorship action related to
activities other than those listed above. The
congressional committees that will be sent this report
are the Committee on Oversight and Accountability, the
Committee on the Judiciary, and the Committee on Energy
and Commerce of the House of Representatives and the
Committee on Homeland Security and Government Affairs
and the Committee on the Judiciary and the Committee on
Commerce, Science, and Transportation of the Senate.
This report must include an overview of the
censorship action and the name of the service that was
requested to take the action. The report must also
include the name of the person or entity targeted and
the name, position and supervisor of the agency
employee requesting the censorship action. Further, the
report must include the agency's legal authority to
take the action and a list of other agencies involved.
The agency may choose to include a classified annex.
The Office of the Special Counsel is exempted from
this reporting requirement in order to allow them to
continue to issue advisory opinions and take corrective
action--as they do in enforcing the Hatch Act--without
having to report each of those instances to Congress.
Sec. 7381(c) establishes penalties for violation of
this section. The established penalties are in-line
with the existing penalties ascribed to violations of
the Hatch Act. However, this subsection segments
penalties for federal employees and senior officials.
For federal employees, this subsection imposes a civil
penalty not to exceed $1,000 for an employee found to
be in violation--as currently stipulated for Hatch Act
violations under Title 5. For senior officials--an
employee paid from an appropriation for the White House
Office or an employee appointed by the President and
confirmed by the Senate--this subsection imposes a
civil penalty not to exceed $10,000 for those found in
violation.
Sec. 7381(d) provides that this section shall be
enforced in the same manner as subchapter III of
Chapter 73 of title 5 of the United States Code which
is meant to utilize existing advisory and enforcement
functions carried out by the Office of Special Counsel
for the Hatch Act.
Sec. 7381(e) this subsection provides definitions for
the term `censor' or `censorship,' `employee,' and
`interactive computer service.'
Subsection (b) offers a clerical amendment to the table of
sections for chapter 73 title 5 of the United States Code.
Subsection (c) expands the jurisdiction of the Office of
Special Counsel to authorize it to conduct an investigation of
any allegation concerning censorship prohibited by this Act.
Subsection (d) clarifies that this Act does not prevent the
federal government from enforcing federal laws or regulations
or establishing the terms and conditions of Federal financial
assistance. This subsection also clarifies that the Act does
not prohibit federal employees from using an official federal
account to communicate an official policy position, and does
not impede upon normal press and public affairs relations.
Subsection (e) provides a severability clause that keeps
the remaining portions of the Act in place should a portion of
the Act, or an amendment made by the Act, be held to be
unconstitutional.
LEGISLATIVE HISTORY
H.R. 140, the Protecting Speech from Government
Interference (PSGIA) Act, was introduced on January 9, 2023, by
Chairman James Comer, Jim Jordan, and Cathy McMorris Rodgers.
The bill was referred to the Committee on Oversight and
Accountability. The Committee held a legislative hearing on
February 8, 2023. The Committee considered H.R. 140 at a
business meeting on February 28, 2023, and ordered the bill as
amended favorably reported by a recorded vote.
COMMITTEE CONSIDERATION
On February 28, 2023, the Committee met in open session
and, with a quorum being present, began consideration of H.R.
140 the Protecting Speech from Government Interference (PSGIA)
Act. The bill was ordered reported, as amended, on February 28,
2023.
ROLL CALL VOTES
There were eight roll call votes during consideration of
H.R. 140.
The first roll call vote was on Amendment #1 to the
Amendment in the Nature of a Substitute to H.R. 140 offered by
Mr. Raskin. The amendment was not agreed to in a recorded vote
of 19-22.
The second roll call vote was on an Amendment to the
Amendment in the Nature of a Substitute to H.R. 140 offered by
Mr. Lynch. The amendment was not agreed to in a recorded vote
of 19-22.
The third roll call vote was on an Amendment to the
Amendment in the Nature of a Substitute to H.R. 140 offered by
Ms. Balint. The amendment was not agreed to in a recorded vote
of 19-22.
The fourth roll call vote was on an Amendment to the
Amendment in the Nature of a Substitute to H.R. 140 offered by
Ms. Porter. The amendment was not agreed to in a recorded vote
of 20-21.
The fifth roll call vote was on an Amendment to the
Amendment in the Nature of a Substitute to H.R. 140 offered by
Mr. Moskowitz. The amendment was not agreed to in a recorded
vote of 20-21.
The sixth roll call vote was on Amendment #2 to the
Amendment in the Nature of a Substitute to H.R. 140 offered by
Mr. Goldman. The amendment was not agreed to in a recorded vote
of 20-22.
The seventh roll call vote was on Amendment #2 to the
Amendment in the Nature of a Substitute to H.R. 140 offered by
Mr. Raskin. The amendment was not agreed to in a recorded vote
of 20-22.
The eighth roll call vote was on final passage of H.R. 140.
The bill was agreed to in a recorded vote of 24-20.
EXPLANATION OF AMENDMENTS
During Committee consideration of the bill, Representative
James Comer (R-KY), Chairman of the Committee, offered an
amendment in the nature of a substitute that would make certain
technical changes to the bill, would establish a reporting
requirement for federal employees that utilize the exception
for legitimate law enforcement functions, would expand the
jurisdiction of the Office of Special Counsel, and would
establish a rule of construction. The amendment in the nature
of a substitute passed by voice vote.
Ranking Member Jamie Raskin (D-MD) offered an amendment to
H.R. 140 that would expand the definition of `entity' within
the definition of `censorship' to include `media organizations'
(including newspapers, magazines, radio, television). The
amendment failed by recorded vote.
Representative Stephen Lynch (D-MA) offered an amendment to
H.R. 140 that would add the phrase `national security' to the
exception for legitimate law enforcement functions. The
amendment failed by recorded vote.
Representative Becca Balint (D-VT) offered an amendment to
H.R. 140 that would add an additional rule of construction that
would state that the Act would not prohibit federal employees
from addressing harassment, enforcing nondiscrimination laws,
and censoring speech that they classify as misinformation
intended to incite violence. The amendment failed by recorded
vote.
Representative Katie Porter (D-CA) offered an amendment to
H.R. 140 that would add the facilitation and distribution of
scientific information to the exception for legitimate law
enforcement functions. The amendment failed by recorded vote.
Representative Dan Goldman (D-NY) offered an amendment to
H.R. 140 that would expand the U.S. Office of Special Counsel's
enforcement capabilities of the Hatch Act to include criminal
penalties. The amendment failed by voice vote.
Representative Jared Moskowitz (D-FL) offered an amendment
to H.R. 140 that would add actions to prevent the incitement of
violence related to neo nazi groups to the exception for
legitimate law enforcement functions. The amendment failed by
recorded vote.
Representative Dan Goldman (D-NY) offered an amendment to
H.R. 140 that would add defending elections from interference
from malign actors to the exception for legitimate law
enforcement functions. The amendment failed by recorded vote.
Ranking Member Jamie Raskin (D-MD) offered an amendment to
H.R. 140 that would add an additional rule of construction that
would state that the Act would not restrict or amend the right
of a private entity to create policies that dictate an
individual's use of its service. The amendment failed by
recorded vote.
LIST OF RELATED COMMITTEE HEARINGS
In accordance with House rule XIII, clause 3(c)(6), (1) The
following hearing was used to develop or consider H.R. 140:
On February 8, 2023, the Committee held a hearing titled
``Protecting Speech from Government Interference and Social
Media Bias, Part 1: Twitter's Role in Suppressing the Biden
Laptop Story'' with Vijaya Gadde, former Chief Legal Officer,
Twitter and James Baker, former Deputy General Counsel,
Twitter, and Yoel Roth, former Global Head of Trust and Safety,
Twitter, and Annika Collier Navaroli, former senior expert on
Twitter's U.S. safety policy team.
(2) The following related hearing was held:
On February 8, 2023, the Committee held a hearing titled
``Protecting Speech from Government Interference and Social
Media Bias, Part 1: Twitter's Role in Suppressing the Biden
Laptop Story'' with Vijaya Gadde, former Chief Legal Officer,
Twitter and James Baker, former Deputy General Counsel,
Twitter, and Yoel Roth, former Global Head of Trust and Safety,
Twitter, and Annika Collier Navaroli, former senior expert on
Twitter's U.S. safety policy team.
STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the Background and Need for
Legislation section above.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals or objectives of this bill are to amend title 5, U.S.C.,
to prohibit Federal employees from advocating for censorship of
viewpoints in their official capacity, and for other purposes.
APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill does not relate to employment or access to public
services and accommodations in the legislative branch.
DUPLICATION OF FEDERAL PROGRAMS
In accordance with clause 3(c)(5) of rule XIII no provision
of this bill establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
DISCLOSURE OF DIRECTED RULE MAKINGS
This bill does not direct the completion of any specific
rule makings within the meaning of section 551 of title 5,
U.S.C.
FEDERAL ADVISORY COMMITTEE ACT STATEMENT
The Committee finds that this legislation does not direct
the establishment of advisory committees within the definition
of Section 5(b) of the appendix to title 5, U.S.C.
UNFUNDED MANDATES REFORM ACT STATEMENT
Pursuant to section 423 of the Congressional Budget Act of
1974 the Committee has included a letter received from the
Congressional Budget Office below.
EARMARK IDENTIFICATION
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the House of Representatives.
COMMITTEE COST ESTIMATE
Pursuant to clause 3(d) of rule XIII of the Rules of the
House of Representatives, the Committee includes below a cost
estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
NEW BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
Pursuant to clause 3(c)(3) of rule XIII of the House of
Representatives, the cost estimate prepared by the
Congressional Budget Office and submitted pursuant to section
402 of the Congressional Budget Act of 1974 is as follows:
H.R. 140 would bar federal employees from using their
official authority or influence to promote censorship or to
advocate for that action by a third party. Employees found to
violate the prohibition would be subject to civil penalties.
Censorship, as defined in H.R. 140, means using influence
or coercion to:
Remove or suppress lawful speech from an
interactive computer service,
Add a disclaimer or other alert to lawful
speech expressed on an interactive computer service, or
Remove or restrict a person's access to a
publicly available interactive computer service under
certain conditions.
Activities related to law enforcement would be excluded
from the bill's prohibition but agencies undertaking activities
under that exclusion would be required to report to the
Congress before taking any action.
Enacting H.R. 140 could result in additional civil penalty
collections, which are treated as revenues in the budget.
However, CBO estimates that any such collections would be
insignificant over the 2023-2033 period because the penalty
amounts are relatively small and we expect few violations of
the bill's new prohibitions.
CBO does not have enough information to determine the
number of instances of censorship exercised by federal
employees in the past or to project such behavior in the
future. As a result, CBO cannot estimate the costs related to
implementing the bill or the savings related to employees not
engaging in that behavior. However, we expect that those
amounts would be insignificant over the 2023-2028 period; any
changes in spending would be subject to the availability of
appropriated funds.
In addition, the bill could affect direct spending by some
agencies that are allowed to use fees, receipts from the sale
of goods, and other collections to cover operating costs. CBO
estimates that any net changes in direct spending by those
agencies would be negligible because most of them can adjust
amounts collected to reflect changes in operating costs.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Director of Budget Analysis.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
With respect to the requirement of clause 3(e) of rule XIII
of the Rules of the House of Representatives, changes in
existing law made by the bill, as reported, this section was
not made available to the Committee in time for the filing of
this report. The Chair of the Committee shall have this printed
upon its receipt by the Committee.
MINORITY VIEWS
H.R. 140, the Protecting Speech from Government
Interference Act, is rooted in the far-right conspiracy
theories that drove the Republicans' February 8, 2023, hearing,
``Protecting Speech from Government Interference and Social
Media Bias, Part 1: Twitter's Role in Suppressing the Biden
Laptop Story.'' As was made very clear in that hearing, there
is no evidence of any Biden Administration official violating
the First Amendment and censoring Americans or social media
platforms, so now Republicans are simply trying to rewrite the
law to restrict the flow of factual information from the U.S.
government while protecting the flow of disinformation from the
Russian government and other foreign malign actors.
The bill amends title 5, U.S.C., to prohibit federal
employees from taking any action in their official capacities
that may influence a social media platform's content moderation
decisions. In doing so, it would bar federal employees from
alerting social media platforms to nefarious foreign influence
strategies, inviting autocratic regimes and actors to increase
their long-running attacks on American democracy. This bill
would protect the interests of Vladimir Putin and the Chinese
government--not the American people.
H.R. 140 would deliberately create a chilling effect on
public-private cooperation on law enforcement and national
security matters, hindering our ability to protect democratic
freedoms against both domestic and foreign criminals determined
to subvert our elections and political institutions.
All employees would be prohibited from using their official
authority to influence a private entity for the removal or
suppression of speech, as well as from influencing a private
entity for the removal or suppression of speech while on duty.
Civil penalties for violating the prohibition could include
fines of up to $1,000, or up to $10,000 for the highest-ranking
federal employees. There are no prohibitions or punishments for
seeking to force a private entity to include particular
speakers on their platforms even if those speakers were removed
for inciting race hate, civil war or violent insurrection.
The bill would except law enforcement functions within an
employee's authority, but would add a lengthy report required
at least 72 hours before any action is conducted, unless such
action is related to child pornography and exploitation, human
trafficking, controlled substances, or safeguarding classified
national security information.
Having failed to identify any government censorship, the
Committee Majority conveniently moves to redefine
``censorship'' from meaning government suppression of private
speech to meaning private entities regulating their own speech
content and speech platforms.
That is a radical change. When newspapers and TV networks
choose to run one program or opinion piece instead of another,
it is not censorship. It is wrong not to apply that basic First
Amendment standard to social media platforms, and it is a
fallacy to treat a private entity's decision not to publish
something as ``censorship'' under our system of government.
Social media companies have a First Amendment right to
establish their own rules governing speech, including false
speech and speech inciting violence and race hate. Social media
companies also have a right to use threat information shared by
the government to enforce those rules and make private business
decisions. Unfortunately, Republicans voted down an amendment
in Committee to ensure that this bill would protect this
fundamental First Amendment principle, calling into question
their true intent in pursuing this legislation.
H.R. 140 threatens the ability of law enforcement and other
government agencies to provide timely, critical information
these companies need, such as to warn them of speech on their
platforms that might include violence-inciting and violence-
planning speech that not only violates their terms of service
but poses a serious threat to public safety and the integrity
of democratic institutions.
Similarly, H.R. 140 as written would interfere with the
ability of national security and law enforcement agencies to
alert online platform providers of interference campaigns by
Russia, China, or other malign foreign state or non-state
actors working to undermine the integrity of our election
process--including voting rights and fair balloting on Election
Day--with propaganda techniques, disinformation, or direct
tampering.
This bill purports to protect the First Amendment but
actually undermines it, creating far more serious problems for
American democracy than the debunked conspiracy theory it
claims to address. In the days leading up to the January 6
attack on the U.S. Capitol, Twitter chose to allow Donald Trump
and ultra-MAGA extremists to use its platform to spread the Big
Lie and election disinformation, fueling a wildfire of
incitement to civil war, race war, insurrection, revolution,
and violence that raged out of control and shook the very
foundations of American democracy.
At the Twitter Files hearing, it was made evident that,
unless social media companies and policymakers work to address
the factors that led to this eruption of deadly violence, more
violence will come. My Democratic colleagues and I urge our
Republican colleagues to dedicate the Committee's time to
proposing constructive solutions to real problems, and oppose
H.R. 140, the Putin Protection Act--not only for its blatant
failure to address any actual problem but for proposing serious
new threats to our democracy and freedoms.
Jamie Raskin,
Ranking Member.
[all]