[House Report 118-579]
[From the U.S. Government Publishing Office]


118th Congress    }                                     {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                     {       118-579

======================================================================



 
                     CENSORSHIP ACCOUNTABILITY ACT

                                _______
                                

 July 11, 2024.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Jordan, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 4848]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 4848) to provide for a right of action against 
Federal employees for violations of First Amendment rights, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     5
Committee Consideration..........................................     7
Committee Votes..................................................     7
Committee Oversight Findings.....................................    10
New Budget Authority and Tax Expenditures........................    10
Congressional Budget Office Cost Estimate........................    10
Committee Estimate of Budgetary Effects..........................    11
Duplication of Federal Programs..................................    11
Performance Goals and Objectives.................................    11
Advisory on Earmarks.............................................    11
Federal Mandates Statement.......................................    11
Advisory Committee Statement.....................................    11
Applicability to Legislative Branch..............................    11
Section-by-Section Analysis......................................    12
Dissenting Views.................................................    12

    The amendment is as follows:
  Strike all that follows after the enacting clause and insert 
the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Censorship Accountability Act''.

SEC. 2. RIGHT OF ACTION AGAINST FEDERAL EMPLOYEES FOR VIOLATIONS OF 
                    FIRST AMENDMENT RIGHTS.

  (a) In General.--A Federal employee who, under color of any statute, 
ordinance, regulation, custom, or usage, of the United States, 
subjects, or causes to be subjected, any citizen of the United States 
or any person within the jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by the First Amendment, shall 
be liable to the party injured in an action at law, suit in equity, or 
other proper proceeding for redress.
  (b) Exception.--This section does not authorize a Federal employee to 
bring a suit against their Federal employer or the Federal Government 
for conduct that is within the scope of the employment relationship.
  (c) Attorney's Fees.--In any action or proceeding to enforce this 
Act, the court, in its discretion, may allow the prevailing party, 
other than the United States, a reasonable attorney's fee as part of 
the costs.
  (d) Definition.--In this section, the term ``Federal employee'' means 
an individual, other than the President or the Vice President, who 
occupies a position in any agency or instrumentality of the executive 
branch (including any independent agency).
  (e) Severability.--If any provision of this Act or the application of 
a provision of 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 
thereby.

                          Purpose and Summary

    H.R. 4848, the Censorship Accountability Act, introduced by 
Representative Dan Bishop (R-NC), will permit injured parties 
to sue federal executive branch officials for violations of 
their First Amendment rights and receive monetary damages. This 
bill will provide a remedy for the injured parties and deter 
would-be federal censors from engaging in further infringements 
upon the First Amendment. The Censorship Accountability Act is 
modeled on 42 U.S.C. Sec. 1983, a Reconstruction-era statute 
that permits Americans to sue state and municipal employees for 
violating their federal constitutional rights.

                Background and Need for the Legislation


The Committee's work has revealed evidence of censorship that violates 
        the First Amendment

    The Committee and its Select Subcommittee on the 
Weaponization of the Federal Government are conducting an 
extensive investigation into government-induced censorship on 
social media and other Big Tech platforms. The Committee and 
Select Subcommittee have uncovered evidence that prove Facebook 
and Instagram censored posts and changed content moderation 
policies because of unconstitutional pressure from the Biden 
White House.\1\ The Committee and Select Subcommittee have 
uncovered evidence detailing similar efforts by the Biden White 
House to censor content on YouTube.\2\ Most recently, the 
Committee and Select Subcommittee have shown how the Biden 
White House pressured Amazon to censor vaccine-related 
books.\3\ In all three cases, two senior White House officials, 
Andy Slavitt and Rob Flaherty, communicated the Biden White 
House's censorship demands to the social media and technology 
companies.\4\ This bill would allow the American people to hold 
executive branch employees like Slavitt and Flaherty 
accountable for their censorship.
---------------------------------------------------------------------------
    \1\See Jim Jordan (@Jim_Jordan), X, (July 27, 2023, 12:03 PM), 
https://twitter.com/Jim_Jordan/status/1684595375875760128; Jim Jordan 
(@Jim_Jordan), X, (July 28, 2023, 12:03 PM), https://twitter.com/
Jim_Jordan/status/1684957660515328001; Jim Jordan (@Jim_Jordan), X, 
(Aug. 3, 2023, 11:00 AM), https://twitter.com/Jim_Jordan/status/
1687116316073930752; Jim Jordan (@Jim_Jordan), X, (Sept. 5, 2023, 6:17 
PM), https://twitter.com/Jim_Jordan/status/1699184930331267539; Jim 
Jordan (@Jim_Jordan), X (May 1, 2024, 3:31 PM), https://x.com/
Jim_Jordan/status/1785753836532978067; see also Ryan Tracy, Facebook 
Bowed to White House Pressure, Removed Covid Posts, WALL ST. J. (July 
28, 2023).
    \2\Jim Jordan (@Jim_Jordan), X, (Nov. 30, 2023, 8:44 AM), https://
twitter.com/Jim_Jordan/status/1730221179632226337; Jim Jordan 
(@Jim_Jordan), X, (Dec. 1, 2023, 2:26 PM) https://twitter.com/
Jim_Jordan/status/1730669728002142706; Jim Jordan (@Jim_Jordan), X (May 
1, 2024, 4:09 PM), https://x.com/Jim_Jordan/status/1785763383142129733.
    \3\Jim Jordan (@Jim_Jordan), Twitter (Feb. 5, 2024, 5:44 PM), 
https://twitter.com/Jim_Jordan/status/1754637204146581783; Jim Jordan 
(@Jim_Jordan), X (May 1, 2024, 3:56 PM), https://x.com/Jim_Jordan/
status/1785760331370725664; Jim Jordan (@Jim_Jordan), X (June 21, 2024, 
8:41 AM), https://x.com/Jim_Jordan/status/1804132417260728697.
    \4\Jim Jordan (@Jim_Jordan), X, (July 27, 2023, 12:03 PM), https://
twitter.com/Jim_Jordan/status/1684595375875760128; Jim Jordan 
(@Jim_Jordan), X, (July 28, 2023, 12:03 PM), https://twitter.com/
Jim_Jordan/status/1684957660515328001; Jim Jordan (@Jim_Jordan), X, 
(Aug. 3, 2023, 11:00 AM), https://twitter.com/Jim_Jordan/status/
1687116316073930752; Jim Jordan (@Jim_Jordan), X, (Nov. 30, 2023, 8:44 
AM), https://twitter.com/Jim_Jordan/status/1730221179632226337; Jim 
Jordan (@Jim_Jordan), X, (Dec. 1, 2023, 2:26 PM) https://twitter.com/
Jim_Jordan/status/1730669728002142706; Rep. Jim Jordan (@Jim_Jordan), 
Twitter (Feb. 5, 2024, 5:44 PM), https://twitter.com/Jim_Jordan/status/
1754637204146581783.
---------------------------------------------------------------------------
    Likewise, the Committee has uncovered other evidence of 
government-driven censorship, including how the Department of 
Homeland Security's (DHS) Cybersecurity and Infrastructure 
Security Agency (CISA) and the State Department's Global 
Engagement Center (GEC) collaborated with academic 
institutions, nonprofits, and other third parties, censor 
Americans' speech.\5\
---------------------------------------------------------------------------
    \5\Staff of Select Subcomm. on the Weaponization of the Federal 
Government of the H. Comm. on the Judiciary, 118th Cong., The 
Weaponization of `Disinformation' Pseudo-Experts and Bureaucrats: How 
the Federal Government Partnered with Universities to Censor Americans' 
Political Speech (Comm. Print Nov. 6, 2023).
---------------------------------------------------------------------------

Notwithstanding the Supreme Court's decision in Murthy v. Missouri, 
        Congress must act to deter censorship

    On May 5, 2022, the states of Louisiana and Missouri filed 
a lawsuit alleging that the federal government coerced or 
otherwise worked with social media platforms to censor 
constitutionally protected speech.\6\ On July 4, 2023, a 
federal district court in Louisiana issued a preliminary 
injunction.\7\ The court enjoined the government and certain 
federal officials from communicating with social media 
companies to censor protected speech.\8\ The court found 
``substantial evidence . . . of a far-reaching . . . censorship 
campaign,'' one where the federal government acted like ``an 
Orwellian `Ministry of Truth.''\9\
---------------------------------------------------------------------------
    \6\Complaint at 75, Missouri v. Biden, No. 3:22-cv-01213 (W.D. La. 
May 5, 2022).
    \7\Memorandum Ruling on Request for Preliminary Injunction at 155, 
Missouri v. Biden, No. 3:22-cv-01213 (W.D. La. Jul. 4, 2023).
    \8\Id. at 87-88.
    \9\Id. at 154.
---------------------------------------------------------------------------
    On September 8, 2023, the U.S. Court of Appeals for the 
Fifth Circuit affirmed the district court's judgment in part, 
narrowing the injunction's scope, and issuing a revised 
decision on October 3.\10\ On October 20, the Supreme Court 
decided to take the case but also stayed the preliminary 
injunction pending review.\11\ As Justice Alito noted in his 
dissent from the grant of the application for stay: ``[a]t this 
time in the history of our country, what the Court has done, I 
fear, will be seen by some as giving the Government a green 
light to use heavy-handed tactics to skew the presentation of 
views on the medium that increasingly dominates the 
dissemination of news.''\12\
---------------------------------------------------------------------------
    \10\See Revised Opinion at 74, Missouri v. Biden, No. 23-30445 (5th 
Cir. Oct. 3, 2023); see also First Opinion at 74, Missouri v. Biden, 
No. 23-30445 (5th Cir. Sept. 8, 2023) .
    \11\Murthy v. Missouri, 601 U. S. ___ (2023) (Alito, J., 
dissenting), slip. op. at 1.
    \12\Id. at 5.
---------------------------------------------------------------------------
    On June 26, 2024, the Supreme Court reversed the Fifth 
Circuit without addressing the merits of the claims.\13\ 
Justice Barrett, writing for the majority, concluded that none 
of the plaintiffs (Missouri, Louisiana, and five individuals) 
were able to show a ``concrete link between their injuries'' 
and the Biden Administration's pressure campaign.\14\ Justice 
Alito, joined by Justices Thomas and Gorsuch, dissented, and 
noted that documents obtained by the plaintiffs, and the 
Committee, revealed that the Biden White House ``engaged in a 
covert scheme of censorship.''\15\ The dissent concluded that 
the Biden Administration's actions were ``blatantly 
unconstitutional'' and, in part due to documents uncovered 
during the Committee's and Select Subcommittee's investigation, 
``we now know that valuable speech was . . . suppressed.''\16\
---------------------------------------------------------------------------
    \13\Murthy v. Missouri, 603 U.S. ___ (2024) (slip op.).
    \14\Id. at 29 (Barrett, J., majority op.).
    \15\Id. at 30 (Alito, J., dissenting) (citing Interim Staff Report 
of the House Judiciary Committee, The Censorship-Industrial Complex: 
How Top Biden White House Officials Coerced Big Tech To Censor 
Americans, True Information, and Critics of the Biden Administration, 
(May 1, 2024)).
    \16\Id. at 4, 2 (Alito, J., dissenting) (citing Interim Staff 
Report of the House Judiciary Committee, The Censorship-Industrial 
Complex: How Top Biden White House Officials Coerced Big Tech To Censor 
Americans, True Information, and Critics of the Biden Administration, 
(May 1, 2024)).
---------------------------------------------------------------------------
    The case now returns to the district court for further 
proceedings. Although the Supreme Court held that the 
plaintiffs failed to meet the high burden for a preliminary 
injunction, the plaintiffs, likely with additional discovery, 
will have the opportunity to prove their case on the merits.

Current law is inadequate to deter executive branch censorship

    Under 42 U.S.C. Sec. 1983, state and municipal government 
employees are liable for damages for violating individuals' 
clearly established constitutional rights.\17\ Section 1983, 
however, ``does not encompass claims against federal 
officials.''\18\ While the Supreme Court created a cause of 
action against federal employees in the Bivens case for certain 
constitutional violations,\19\ the judicial application of that 
doctrine is limited and does not allow relief for First 
Amendment claims.\20\ Further, the Court recently narrowed the 
applicability of Bivens, signaling that the Court is hesitant 
to expand the doctrine and may even consider further narrowing 
its applicability for future litigants.\21\ Accordingly, under 
current statutory and federal case law, when federal executive 
branch officials violate First Amendment rights, the American 
people have limited recourse.
---------------------------------------------------------------------------
    \17\See 42 U.S.C. Sec. 1983; see generally Martin Schwartz, Section 
1983 Litigation (3d ed. 2014).
    \18\Id. at 7 (cleaned up).
    \19\See id.; see generally Bivens v. Six Unknown Named Agents of 
Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
    \20\See, e.g., Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) 
(``We have never held that Bivens extends to First Amendment 
claims.'').
    \21\See Howard M. Wasserman, Court Constricts, Even if it Does Not 
Quite Eliminate, Damages Actions Under Bivens, ScotusBlog (Jun. 8, 
2022); Cassandra Burke Robertson, SCOTUS Sharply Limits Bivens Claims--
and Hints at Further Retrenchment, ABA (Apr. 14, 2020).
---------------------------------------------------------------------------

The Censorship Accountability Act is a direct result of the Committee's 
        oversight

    As part of its oversight, the Committee and Select 
Subcommittee have received testimony that supports the 
Censorship Accountability Act's underlying policy. For example, 
in a Select Subcommittee hearing, Louisiana Attorney General 
Jeff Landry ``encourage[d] Congress to . . . pass legislation 
to expand civil liability . . . by creating a specific cause of 
action for monetary damages'' for censorship.\22\ Other 
witnesses, including Twitter Files journalist Michael 
Shellenberger, have called for similar legislative action.\23\
---------------------------------------------------------------------------
    \22\Hearing on the Weaponization of the Fed. Gov., Hearing Before 
the Select Subcomm. on the Weaponization of the Fed. Gov. of the H. 
Comm. on the Judic., 118th Cong. 6 (2023) (testimony of Jeff Landry, 
Att'y Gen. of Louisiana); see generally id. at 2 (testimony of D. John 
Sauer, Special Ass't Att'y Gen., Louisiana Dep't of Justice, (``For 
years, federal officials have perpetrated a hostile takeover of this 
`modern public square.' This hostile takeover has largely succeeded. 
Congress should take swift action to restore freedom to the most 
pivotal sector of political and social expression--social media.'')).
    \23\Hearing on the Weaponization of the Fed. Gov., Hearing Before 
the Select Subcomm. on the Weaponization of the Fed. Gov. of the H. 
Comm. on the Judic., 118th Cong. 4 (2023) (testimony of Michael 
Shellenberger (``I would also encourage Congress to prohibit government 
officials from asking the platforms [to remove content], which the 
Supreme Court may or may not rule [unconstitutional] next year when it 
decides on the Missouri v. Biden case.'')).
---------------------------------------------------------------------------
    Modeled generally on Sec. 1983, the Censorship 
Accountability Act permits Americans to sue executive branch 
officials who violate their First Amendment rights for 
damages.\24\ It also includes language based on 42 U.S.C. 
Sec. 1988(b),\25\ which permits courts to award attorney's fees 
to prevailing plaintiffs in Sec. 1983 claims.\26\ Congress 
enacted Sec. 1983 to ``encourag[e] private litigants to act as 
`private attorneys general' in seeking to vindicate the civil 
rights laws.''\27\ Like Sec. 1983, the Censorship 
Accountability Act will encourage attorneys to bring cases on 
behalf of plaintiffs and will allow victims to pursue 
compensation when executive branch officials violate their 
First Amendment rights. Finally, as with Sec. 1983 before it, 
this bill will help preserve fundamental American freedoms that 
are under attack by rogue government actors who have abrogated 
to themselves the right to decide what Americans can and cannot 
say.
---------------------------------------------------------------------------
    \24\H.R. 4848 Sec. 2(a). Existing doctrines may prevent any given 
plaintiff from recovering depending on the facts of the case. See, 
e.g., Tapley v. Collins, 211 F.3d 1210, 1214 (11th Cir. 2000) 
(explaining ``the Supreme Court has said that the defense of qualified 
immunity is so well established, that if Congress wishes to abrogate 
it, Congress should specifically say so'') (citation and internal 
quotation marks omitted).
    \25\See id. Sec. 2(c).
    \26\See 42 U.S.C. Sec. 1988(b) (providing for recovery of 
attorney's fees in actions to enforce section 1983 claims).
    \27\Donnell v. United States, 682 F.2d 240, 245 (D.C. Cir. 1982); 
cf. id. (observing of a similar statute that ``Congress depends heavily 
upon private citizens to enforce the fundamental rights involved[,] 
[and attorney's fees] . . . are a necessary means of enabling private 
citizens to vindicate these Federal rights.'' (internal quotation marks 
omitted)).
---------------------------------------------------------------------------

                                Hearings

    For the purposes of clause 3(c)(6)(A) of House rule XIII, a 
hearing titled ``Hearing on the Weaponization of the Federal 
Government'' was held on Thursday, March 30, 2023, before the 
Subcommittee on the Weaponization of the Federal Government of 
the Committee on the Judiciary. The Subcommittee heard 
testimony from the following witnesses:
           U.S. Senator Eric Schmitt, Missouri;
           Attorney General Jeff Landry, Louisiana;
           D. John Sauer, Special Assistant Attorney 
        General, Louisiana Department of Justice; and
           Matthew Seligman, Professor, Stanford 
        Constitutional Law Center.
    The hearing addressed the Missouri v. Biden lawsuit 
challenging the Biden Administration's violation of the First 
Amendment by directing social media companies to censor and 
suppress Americans' free speech.
    The Committee held a related hearing titled ``Hearing on 
the Weaponization of the Federal Government'' was held on 
Thursday, May 18, 2023, before the Subcommittee on the 
Weaponization of the Federal Government of the Committee on the 
Judiciary. The Subcommittee heard testimony from the following 
witnesses:
           Garret O'Boyle, Whistleblower; FBI Special 
        Agent;
           Steve Friend, Whistleblower; former FBI 
        Special Agent;
           Marcus Allen, Whistleblower; FBI Staff 
        Operations Specialist; and
           Tristan Leavitt, President, Empower 
        Oversight.
    The hearing addressed abuses seen at the FBI, including its 
``collusion with Big Tech to gather intelligence on Americans, 
censor political speech, and target citizens for malicious 
prosecution.''\28\
---------------------------------------------------------------------------
    \28\Hearing on the Weaponization of the Fed. Gov., Hearing Before 
the Select Subcomm. on the Weaponization of the Fed. Gov. of the H. 
Comm. on the Judic., 118th Cong. (May 18, 2023).
---------------------------------------------------------------------------
    The Committee held a further related hearing titled 
``Hearing on the Weaponization of the Federal Government'' was 
held on Thursday, July 20, 2023, before the Subcommittee on the 
Weaponization of the Federal Government of the Committee on the 
Judiciary. The Subcommittee heard testimony from the following 
witnesses:
           Robert F. Kennedy Jr.;
           Emma-Jo Morris, Breitbart News;
           D. John Sauer, Special Assistant Attorney 
        General, Louisiana Department of Justice; and
           Maya Wiley, President and CEO, The 
        Leadership Conference on Civil and Human Rights.
    The hearing addressed the federal government's role in 
censoring Americans, the Missouri v. Biden case, and Big Tech's 
collusion with out-of-control government agencies to silence 
speech.
    The Committee held a further related hearing titled 
``Hearing on the Weaponization of the Federal Government'' was 
held on Thursday, November 30, 2023, before the Subcommittee on 
the Weaponization of the Federal Government of the Committee on 
the Judiciary. The Subcommittee heard testimony from the 
following witnesses:
           Matt Taibbi, Twitter Files journalist and 
        author;
           Michael Shellenberger, Twitter Files 
        journalist, author, and environmentalist;
           Rupa Subramanya, journalist for The Free 
        Press; and
           Olivia Troye, former Homeland Security 
        Advisor and Counterterrorism Advisor, Office of Vice 
        President Pence.
    The hearing, which took place one year after the first 
Twitter Files publication, addressed the federal government's 
involvement in social media censorship as well as the recent 
attacks on independent journalism and free expression.
    The Committee held a further related hearing titled 
``Hearing on the Weaponization of the Federal Government'' was 
held on Tuesday, February 6, 2024, before the Subcommittee on 
the Weaponization of the Federal Government of the Committee on 
the Judiciary. The Subcommittee heard testimony from the 
following witnesses:
           Greg Lukianoff, President and CEO, 
        Foundation for Individual Rights and Expression (FIRE);
           Lee Fang, Investigative journalist;
           Katelynn Richardson, Supreme Court Reporter, 
        Daily Caller News Foundation; and
           Norman Eisen, former U.S. Ambassador to the 
        Czech Republic.
    The hearing addressed the threat to the First Amendment 
posed by artificial intelligence and the federal government's 
role in funding the development of AI-powered censorship and 
propaganda tools that can be used by governments and Big Tech 
to monitor and censor speech at scale.

                        Committee Consideration

    On February 29, 2024, the Committee met in open session and 
ordered the bill, H.R. 4848, favorably reported with an 
amendment in the nature of a substitute, by a roll call vote of 
19 to 11, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of House rule XIII, the 
following roll call votes occurred during the Committee's 
consideration of H.R. 4848:
    1. Vote on Amendment #2 to H.R. 4848 ANS, offered by Mr. 
Ivey, failed 10-16
    2. Vote on favorably reporting H.R. 4848, as amended, 
passed 19-11

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of House rule XIII, the 
Committee advises that the findings and recommendations of the 
Committee, based on oversight activities under clause 2(b)(1) 
of rule X of the Rules of the House of Representatives, are 
incorporated in the descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives does not apply where a cost estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974 has been timely submitted prior to filing of the report 
and is included in the report. Such a cost estimate is included 
in this report.

               Congressional Budget Office Cost Estimate

    With respect to the requirement of clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
402 of the Congressional Budget Act of 1974, the Committee has 
received the enclosed cost estimate for H.R. 4848 from the 
Director of the Congressional Budget Office:

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    H.R. 4848 would create a new right of action against a 
federal employee in their personal capacity if they violate the 
First Amendment rights of any person within the United States. 
The legislation would exempt the President and Vice-President 
from that liability. The bill also would not authorize the 
right of action for a federal employee who brings a suit 
against their employer or the federal government for conduct 
within the scope of their employment.
    CBO estimates that the administrative costs associated with 
implementing the bill would be less than $500,000 over the 
2024-2029 period because few cases are likely to be affected. 
Any related spending would be subject to the availability of 
appropriated funds.
    CBO has not reviewed H.R. 4848 for intergovernmental or 
private-sector mandates because section 4 of the Unfunded 
Mandates Reform Act excludes from the application of that act 
any legislative provisions that would enforce the 
constitutional rights of individuals. CBO has determined that 
this bill falls within that exclusion because it enforces the 
First Amendment rights of all individuals within the United 
States.
    The CBO staff contacts for this estimate are Matthew 
Pickford (for federal costs) and Grace Watson (for mandates). 
The estimate was reviewed by Ann E. Futrell, Senior Adviser for 
Budget Analysis.

                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

                Committee Estimate of Budgetary Effects

    With respect to the requirements of clause 3(d)(1) of rule 
XIII of the Rules of the House of Representatives, the 
Committee adopts as its own the cost estimate prepared by the 
Director of the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of House rule XIII, no provision 
of H.R. 4848 establishes or reauthorizes a program of the 
federal government known to be duplicative of another federal 
program.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
House rule XIII, H.R. 4848 would permit injured parties to sue 
federal executive branch officials for violations of their 
First Amendment rights and receive monetary damages.

                          Advisory on Earmarks

    In accordance with clause 9 of House rule XXI, H.R. 4848 
does not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits as defined in clauses 
9(d), 9(e), or 9(f) of House rule XXI.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act (Pub. L. 104-
1).

                      Section-by-Section Analysis

    Section 1. Short Title. This section sets forth the short 
title of the bill as the ``Censorship Accountability Act''.
    Section 2. Right of Action Against Federal Employees for 
Violations of First Amendment Rights. This section makes a 
federal employee who violates First Amendment rights liable in 
law and equity to injured parties, clarifies that the bill does 
not authorize suits by federal employees against the government 
for conduct within the scope of the employment relationship, 
and permits a court to award a prevailing plaintiff a 
reasonable attorney's fee.
    This section also defines ``federal employee'' as an 
individual, other than the President or Vice President, 
occupying a position in the executive branch and contains a 
standard severability clause.

                            Dissenting Views

    H.R. 4848, the so-called ``Censorship Accountability Act,'' 
creates a federal cause of action for a person to sue a federal 
employee who, acting ``under color of any'' federal law, 
violates that person's ``rights, privileges, or immunities 
secured by the First Amendment.'' The bill does not authorize 
federal employees to sue their federal employers or the federal 
government for employment-related conduct. It also defines 
``federal employee'' to mean anyone holding a position in the 
Executive Branch, other than the President and Vice President.
    While, in principle, I could support a proposal to allow 
someone to sue a federal official for their violation of a 
constitutional right, H.R. 4848 is not a serious effort at 
reform. The Committee held no hearing to allow Members to 
thoroughly vet the merits of H.R. 4848, including the chance to 
hear from constitutional law and civil litigation experts. If 
we had, we could have considered several concerns with the 
bill's drafting, which invites too many unanswered questions.
    Instead, the Majority's effort to move this legislation is 
based on the false factual premise that officials in the Biden 
Administration have colluded with technology companies to 
suppress conservative viewpoints on social media platforms. 
After an investigation that expended tremendous Committee time 
and resources, the Majority has failed to produce any credible 
evidence in support of its scurrilous accusation, a conclusion 
that the Supreme Court recently echoed in Murthy v. Missouri. 
Notably, the Supreme Court found that many of the findings made 
by the District Court in that case--claims the Majority has 
repeatedly cited in this investigation as factual evidence--
``unfortunately appear to be clearly erroneous,'' noting that 
``much of the evidence is inapposite.''\1\ Yet, as a 
consequence of the Majority's narrow and partisan focus, H.R. 
4848 is unnecessarily limited in scope to rights ``secured by 
the First Amendment.'' The bill leaves unmet the American 
people's interest in an effective remedy for violations of all 
of their constitutional rights, not just those secured by the 
First Amendment.\2\
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    \1\Murthy v. Missouri, No. 23--411, slip opinion at 12 n. 4 (S. Ct. 
Jun. 26, 2024).
    \2\It is no answer to say that other remedies exist against federal 
officials for the protection of all other constitutional rights, as the 
Majority suggested during markup. There is no federal statutory cause 
of action analogous to 42 U.S.C. Sec. 1983, which allows a person to 
sue local and state officials in their individual capacities, as well 
as local governments, for money damages for violations of federal 
rights and on which H.R. 4848 is purportedly modeled. While the Supreme 
Court in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 
(1971), found a very limited Fourth Amendment-based implied cause of 
action against federal officials, the Court has narrowed even this 
limited remedy substantially and steadily since the early 1980's. And, 
as recently as 2022, the Court emphasized that if it ``were called to 
decide Bivens today, we would decline to discover any implied causes of 
action in the Constitution'' and that ``in all but the most unusual 
circumstances, prescribing a cause of action is a job for Congress, not 
the courts.'' Egbert v. Boule, 596 U.S. 482, 486, 502 (2022). H.R. 4848 
and the legislative ``process'' surrounding it are a missed 
opportunity.
---------------------------------------------------------------------------
    Additionally, the bill's exception for lawsuits brought by 
federal employees against their employers or the federal 
government may be too broad, potentially eroding federal 
employees' ability to vindicate their free speech or religious 
liberty rights under the bill even in cases concerning conduct 
that is far removed from the workplace context. Finally, the 
bill exempts from its scope the President and the Vice 
President of the United States by excluding them from the 
definition of ``federal employee,'' which appears to be an 
attempt to protect Donald Trump should he become President 
again.
    If the Majority were serious about enacting a statute to 
provide a cause of action for victims of constitutional 
violations committed by federal officials, I would be happy to 
work with them on such an effort. For the foregoing reasons, 
however, I must dissent from the Majority's decision to report 
H.R. 4848 favorably out of Committee.

 A. H.R. 4848 IS UNNECESSARILY LIMITED IN SCOPE TO THE FIRST AMENDMENT 
   BECAUSE IT IS BASED ON THE FALSE FACTUAL PREMISE THAT THE FEDERAL 
                   GOVERNMENT CENSORED ONLINE SPEECH

    There is little substantive reason why H.R. 4848 should be 
limited in scope to rights ``secured by the First Amendment'' 
when a person's interest in remedying violations of other 
constitutional rights is equally strong. The bill should have 
been drafted in the first instance to cover all constitutional 
rights. During the markup of H.R. 4848, I offered an amendment 
that would have replaced the term ``First Amendment'' in 
Section 2(a) with ``Constitution.'' Unfortunately, the 
Committee rejected this amendment in a partisan vote.
    It is telling that the Majority limited the bill's scope to 
the First Amendment, as this is an indication of the sponsors' 
true intent to use the bill as a gimmick to assert their false 
claims about the supposed suppression of conservative speech. 
H.R. 4848 appears to be the Majority's attempt at ``effective 
legislation'' in response to their false allegations that the 
Executive Branch has ``coerced'' technology companies into 
violating the First Amendment rights of their platforms' 
conservative users.
    The Majority's drive to push H.R. 4848 must be understood 
in context. At the start of the 118th Congress, Congress 
established the Select Subcommittee on the Weaponization of the 
Federal Government (``Select Subcommittee''). One of the main 
purposes behind the establishment of the Select Subcommittee 
was to facilitate the Majority's partisan investigation to 
uncover evidence supporting the assertion that ``the Executive 
Branch coerced and colluded with [Big Tech] companies and other 
intermediaries to censor speech'' on technology platforms and 
``to develop effective legislation, such as the possible 
enactment of new statutory limits on the Executive Branch's 
ability to work with Big Tech to restrict the circulation of 
content and deplatform users.''\3\ Despite having taken more 
than 200 hours of testimony from nearly four dozen witnesses, 
including internet researchers, technology company employees, 
and former federal officials--as well as having obtained nearly 
half a million pages of documents--the Majority has found no 
credible evidence to support its assertion. Tellingly, the 
Majority continues to refuse to release the transcripts from 
these interviews, no doubt because it realizes that doing so 
would expose the weakness of its claims.
---------------------------------------------------------------------------
    \3\Letter from the Honorable Jim Jordan, Chairman, H. Comm. on the 
Judiciary, to Sundar Pichai, Chief Executive Officer, Alphabet Inc., 
Feb. 15, 2023.
---------------------------------------------------------------------------
    In addition to the Select Subcommittee's efforts, in May 
2022, two state attorneys general and five private plaintiffs 
filed a lawsuit against the Biden Administration in federal 
district court alleging ``that federal government officials 
violated the First Amendment by `coercing' or `significantly 
encouraging' social media companies to remove or demote content 
from their platforms.''\4\ The plaintiffs in this case 
``contend[ed] that federal officials specifically targeted 
conservative-leaning speech across a range of topics, including 
the origin of the COVID-19 pandemic, the efficacy of masks and 
vaccines, the security of voting by mail, [and] the integrity 
of the 2020 presidential election.''\5\ In July 2023, the 
district court issued a sweeping preliminary injunction 
prohibiting the federal defendants from communicating with 
social media companies ``for the purpose of urging, 
encouraging, pressuring, or inducing in any manner the removal, 
deletion, suppression, or reduction of content containing 
protected free speech posted on social-media platforms,'' among 
other related activities.\6\ The Court of Appeals for the Fifth 
Circuit subsequently narrowed the preliminary injunction and, 
on October 23, 2023, the Supreme Court issued a stay on the 
preliminary injunction while agreeing to hear the case on the 
issues presented in the application for stay.\7\ On June 26, 
2024, the Supreme Court held that neither the individual nor 
the state plaintiffs had established Article III standing to 
seek an injunction against any defendant. In reaching its 
decision, the Majority opinion noted that the ``evidence 
indicates that the platforms had independent incentives to 
moderate content and often exercised their own judgment''\8\--a 
sentiment which has been echoed repeatedly in the Committee's 
interviews with technology company employees. The Majority also 
found that the Fifth Circuit relied on the District Court's 
factual findings--which mirrored the conspiracy theory 
underlying the Majority's investigation--many of which appear 
to be ``clearly erroneous''.\9\
---------------------------------------------------------------------------
    \4\Brennan Center for Justice, Court Case Tracker: Murthy v. 
Missouri (formerly Missouri v. Biden), Blog post, Updated Dec. 27, 2023 
available at https://www.brennancenter.org/our-work/court-cases/murthy-
v-missouri-formerly-missouri-v-biden.
    \5\Id.
    \6\Missouri v. Biden, No. 3:22-CV-01213, 2023 WL 4335270, (W.D. La. 
July 4, 2023), aff'd in part, rev'd in part, 80 F.4th 641 (5th Cir. 
2023), opinion withdrawn and superseded on reh'g, 83 F.4th 350 (5th 
Cir. 2023), cert. granted sub nom. Murthy v. Missouri, 144 S. Ct. 7 
(2023), and aff'd in part, rev'd in part, 83 F.4th 350 (5th Cir. 2023), 
and cert. granted sub nom, Murthy v. Missouri, 144 S. Ct. 7 (2023).
    \7\Murthy v. Missouri, 144 S. Ct. 7 (2023).
    \8\Murthy v. Missouri, No. 23-411, slip opinion at 12 (S. Ct. Jun. 
26, 2024).
    \9\Id. n.4.
---------------------------------------------------------------------------

  B. H.R. 4848 IS POORLY DRAFTED AND MAY IMPACT THE RIGHTS OF FEDERAL 
   EMPLOYEES TO SEEK REDRESS FOR VIOLATIONS OF THEIR FIRST AMENDMENT 
                                 RIGHTS

    Somewhat paradoxically, by referring to rights ``secured by 
the First Amendment,'' H.R. 4848 may be broader than its 
drafters intended, as the First Amendment is not limited to the 
right to free speech, but includes other rights, such as the 
right to the free exercise of religion and a prohibition on the 
establishment of religion, the rights to a free press and free 
assembly, and to petition the government for a redress of 
grievances. Even after markup, it is unclear whether this was 
intentional or a drafting error, particularly given the bill 
short title's reference to ``censorship.''
    Moreover, its exception for lawsuits brought by federal 
employees against their employers or the federal government may 
be too broad. For example, given that the bill otherwise 
authorizes lawsuits for violations of rights ``secured by the 
First Amendment,'' this exception--in conjunction with a broad 
reading of ``rights secured by the First Amendment''--could be 
read to undermine federal employees' ability to vindicate their 
religious free exercise rights against the employee's federal 
employer. Also, the bill provides that it does not authorize a 
suit by federal employees against their employers ``for conduct 
that is within the scope of the employment relationship,'' a 
phrase that is broad enough to potentially erode federal 
employees' ability to vindicate their free speech rights. Under 
current law, assessments of whether restrictions on federal 
employees' speech are constitutional usually require 
application of a nuanced balancing test. H.R. 4848's language, 
however, appears not to account for this subtlety and, 
therefore, may risk leaving federal employees without a remedy 
in cases where their constitutional free speech rights are 
violated by their employer.

  C. H.R. 4848 EXCLUDES THE FIRST AMENDMENT VIOLATIONS CAUSED BY THE 
                      PRESIDENT AND VICE PRESIDENT

    H.R. 4848's exemption for the President and the Vice 
President of the United States is unjustified and appears 
simply to be an attempt to protect Donald Trump from First 
Amendment-related lawsuits should he become President again. 
Indeed, Mr. Trump had a history of using his office to attempt 
to suppress his critics' First Amendment free expression 
rights. For example, after his Administration ordered tear gas 
to be fired against peaceful Black Lives Matter protestors in 
Lafayette Park in the aftermath of George Floyd's killing, the 
protestors sued President Trump and other federal defendants 
for First Amendment violations. A federal court dismissed their 
claims because Bivens did not extend to First Amendment claims 
against the federal officials.\10\ While the Majority may claim 
that the President and Vice President are exempted because they 
are the only elected officials in the Executive Branch who 
routinely engage in protected political speech, by exempting 
the President from suit under this bill, it is clear that the 
sponsors intend to continue giving a future President Trump the 
ability to act with impunity against his critics' First 
Amendment rights.
---------------------------------------------------------------------------
    \10\See Black Lives Matter D.C. v. Trump--Challenging Federal 
Officers' Unprovoked Attack On Civil Rights Demonstrators At Lafayette 
Square In Front Of The White House, ACLU District of Columbia, 
available at https://www.acludc.org/en/cases/black-lives-matter-dc-v-
trump-challenging-federal-officers-unprovoked-attack-civil-rights.
---------------------------------------------------------------------------

                               CONCLUSION

    The need for a statutory remedy against federal officials 
for their violations of constitutional rights, including those 
that the First Amendment guarantees, is real. The Majority's 
efforts surrounding H.R. 4848 could have been an opportunity 
for meaningful substantive reform of civil rights litigation 
and could have given Americans a real means to vindicate their 
constitutional rights. Sadly, but perhaps not surprisingly, the 
Majority has wasted this opportunity, choosing instead to sing 
the only song it knows--simply using this bill as yet another 
platform to elevate baseless and partisan charges instead of 
actually legislating for the American people. I certainly 
reject the Majority's factual premise in support of this 
legislation, but I also outlined a number of substantive 
shortcomings and ambiguities that could have been addressed at 
markup. The Majority chose instead to ignore my points. For all 
these reasons, I must dissent.
                                            Jerrold Nadler,
                                                    Ranking Member.

                                  [all]