II
119THCONGRESS
1
STSESSION S. 188
To prohibit Federal employees and contractors from directing online platforms
to censor any speech that is protected by the First Amendment to
the Constitution of the United States, and for other purposes.
IN THE SENATE OF THE UNITED STATES
JANUARY22, 2025
Mr. P
AUL(for himself, Mr. LEE, Mr. SCHMITT, and Ms. LUMMIS) introduced
the following bill; which was read twice and referred to the Committee
on Homeland Security and Governmental Affairs
A BILL
To prohibit Federal employees and contractors from directing
online platforms to censor any speech that is protected
by the First Amendment to the Constitution of the
United States, and for other purposes.
Be it enacted by the Senate and House of Representa-1
tives of the United States of America in Congress assembled, 2
SECTION 1. SHORT TITLE. 3
This Act may be cited as the ‘‘Free Speech Protection 4
Act’’. 5
SEC. 2. DEFINITIONS. 6
In this Act: 7
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(1) COVERED INFORMATION .—The term ‘‘cov-1
ered information’’ means information relating to— 2
(A) a phone call; 3
(B) any type of digital communication, in-4
cluding a post on a covered platform, an e-mail, 5
a text, and a direct message; 6
(C) a photo; 7
(D) shopping and commerce history; 8
(E) location data, including a driving route 9
and ride hailing information; 10
(F) an IP address; 11
(G) metadata; 12
(H) search history; 13
(I) the name, age, or demographic infor-14
mation of a user of a covered platform; and 15
(J) a calendar item. 16
(2) C
OVERED PLATFORM .—The term ‘‘covered 17
platform’’ means— 18
(A) an interactive computer service, as 19
that term is defined in section 230(f) of the 20
Communications Act of 1934 (47 U.S.C. 21
230(f)); and 22
(B) any platform through which a media 23
organization disseminates information, without 24
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regard to whether the organization disseminates 1
that information— 2
(i) through broadcast or print; 3
(ii) online; or 4
(iii) through any other channel. 5
(3) D
IRECTOR.—The term ‘‘Director’’ means 6
the Director of the Office of Management and Budg-7
et. 8
(4) E
MPLOYEE.— 9
(A) I
N GENERAL.—Except where otherwise 10
expressly provided, the term ‘‘employee’’— 11
(i) means an employee of an Execu-12
tive agency; and 13
(ii) includes— 14
(I) an individual, other than an 15
employee of an Executive agency, 16
working under a contract with an Ex-17
ecutive agency; and 18
(II) the President and the Vice 19
President. 20
(B) R
ULE OF CONSTRUCTION .—With re-21
spect to an individual described in subpara-22
graph (A)(ii)(I), solely for the purposes of this 23
Act, the Executive agency that has entered into 24
the contract under which the employee is work-25
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ing shall be construed to be the Executive agen-1
cy employing the employee. 2
(5) E
XECUTIVE AGENCY.—The term ‘‘Executive 3
agency’’— 4
(A) has the meaning given the term in sec-5
tion 105 of title 5, United States Code; and 6
(B) includes the Executive Office of the 7
President. 8
(6) P
ROVIDER.—The term ‘‘provider’’ means a 9
provider of a covered platform. 10
SEC. 3. FINDINGS. 11
Congress finds the following: 12
(1) The First Amendment to the Constitution 13
of the United States guarantees— 14
(A) freedoms concerning religion, expres-15
sion, assembly, and petition of the government; 16
(B) the freedom of expression by prohib-17
iting the government from restricting the press 18
or the right of an individual to speak freely; 19
and 20
(C) the right of an individual to assemble 21
peaceably and to petition the government. 22
(2) Freedom of speech is an essential element 23
of liberty that restrains tyranny and empowers indi-24
viduals. 25
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(3) Writing in support of a Bill of Rights, 1
Thomas Jefferson stated that ‘‘[t]here are rights 2
which it is useless to surrender to the government, 3
and which yet, governments have always been fond 4
to invade. These are the rights of thinking and pub-5
lishing our thoughts by speaking or writing.’’ 6
(4) The Supreme Court of the United States 7
(referred to in this section as the ‘‘Court’’) has 8
upheld the right to speak free from governmental in-9
terference as a fundamental right. 10
(5) The Court, in Palko v. Connecticut, 302 11
U.S. 319 (1937), wrote that freedom of thought and 12
speech ‘‘is the matrix, the indispensable condition, of 13
nearly every other form of freedom’’. 14
(6) In Turner Broadcasting System, Inc. v. 15
Federal Communications Commission, 512 U.S. 622 16
(1994), the Court stated the following: ‘‘At the heart 17
of the First Amendment lies the principle that each 18
person should decide for himself or herself the ideas 19
and beliefs deserving of expression, consideration, 20
and adherence. Our political system and cultural life 21
rest upon this ideal. Government action that stifles 22
speech on account of its message, or that requires 23
the utterance of a particular message favored by the 24
Government, contravenes this essential right . . . 25
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[and poses] the inherent risk that Government seeks 1
not to advance a legitimate regulatory goal, but to 2
suppress unpopular ideas or manipulate the public 3
debate through coercion rather than persuasion. 4
These restrictions ‘rais[e] the specter that the Gov-5
ernment may effectively drive certain ideas or view-6
points from the marketplace.’ For these reasons, the 7
First Amendment, subject only to narrow and well- 8
understood exceptions, does not countenance govern-9
ment control over the content of messages expressed 10
by private individuals.’’ 11
(7) In R.A.V. v. City of St. Paul, 505 U.S. 377 12
(1992), the Court explained that the First Amend-13
ment to the Constitution of the United States ‘‘gen-14
erally prevents government from proscribing speech, 15
or even expressive conduct, because of disapproval of 16
the ideas expressed. Content-based restrictions are 17
presumptively invalid.’’ 18
(8) The case of Brandenburg v. Ohio, 395 U.S. 19
444 (1969), stands for the proposition that speech 20
can be suppressed only if the speech is intended, and 21
is likely to produce, imminent lawless action. 22
(9) Justice William Brennan, in his majority 23
opinion for the Court in Texas v. Johnson, 491 U.S. 24
397 (1989), asserted that ‘‘[i]f there is a bedrock 25
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principle underlying the First Amendment, it is that 1
the government may not prohibit the expression of 2
an idea simply because society finds the idea itself 3
offensive or disagreeable.’’ 4
(10) Justice Neil Gorsuch, in his majority opin-5
ion for the Court in 303 Creative LLC v. Elenis, 6
600 U.S. 570 (2023), stated, ‘‘The First Amend-7
ment envisions the United States as a rich and com-8
plex place where all persons are free to think and 9
speak as they wish, not as the government de-10
mands.’’ 11
(11) As evidenced in disclosures from various 12
social media companies, Federal officials in recent 13
years have sought to censor legal speech on plat-14
forms operated by those companies by using the 15
power of their offices to influence what opinions, 16
views, and other content that users of those plat-17
forms may disseminate. 18
(12) White House officials and officials of Ex-19
ecutive agencies sought to silence narratives on so-20
cial media platforms on issues relating to the 21
COVID–19 pandemic. 22
(13) The Centers for Disease Control and Pre-23
vention engaged with officials at Facebook and Twit-24
ter to request that certain posts be flagged as 25
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‘‘disinformation’’ and held regular meetings with 1
those companies to share instances of what govern-2
ment officials determined to be ‘‘misinformation’’ 3
about the COVID–19 pandemic that had been 4
spread on the platforms operated by those compa-5
nies. 6
(14) In the midst of the 2020 election cycle, the 7
Federal Bureau of Investigation communicated with 8
high-level technology company executives and sug-9
gested that a New York Post story regarding the 10
contents of Hunter Biden’s laptop were part of a 11
‘‘hack and leak’’ operation. 12
(15) On April 27, 2022, the Department of 13
Homeland Security announced the creation of a 14
Disinformation Governance Board (referred to in 15
this paragraph as the ‘‘Board’’). The Director of the 16
Board, Nina Jankowicz, sought to establish an 17
‘‘analytic exchange’’ with ‘‘industry partners’’. In 18
congressional testimony, Secretary of Homeland Se-19
curity Alejandro Mayorkas provided misleading testi-20
mony about the actions of the Board. 21
(16) Since 2020, 2 nonprofit organizations af-22
filiated with the Global Disinformation Index (re-23
ferred to in this paragraph as ‘‘GDI’’) have received 24
a total of $330,000 in grants from Federal agencies. 25
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GDI maintains a list of ‘‘global news publications 1
rated high risk for disinformation’’. Major adver-2
tising companies seek guidance from this purported 3
‘‘nonpartisan’’ group to determine where advertising 4
money should be spent. Despite the self-proclaimed 5
‘‘nonpartisan’’ nature of the list, GDI includes a 6
host of reputable media outlets, such as Reason, 7
RealClearPolitics, and the New York Post. 8
SEC. 4. EMPLOYEE PROHIBITIONS. 9
(a) P
ROHIBITIONS.— 10
(1) I
N GENERAL.—An employee acting under 11
official authority or influence may not— 12
(A) use any form of communication (with-13
out regard to whether the communication is 14
visible to members of the public) to direct, co-15
erce, compel, or encourage a provider to take, 16
suggest or imply that a provider should take, or 17
request that a provider take any action to cen-18
sor speech that is protected by the Constitution 19
of the United States, including by— 20
(i) removing that speech from the ap-21
plicable covered platform; 22
(ii) suppressing that speech on the ap-23
plicable covered platform; 24
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(iii) removing or suspending a par-1
ticular user (or a class of users) from the 2
applicable covered platform or otherwise 3
limiting the access of a particular user (or 4
a class of users) to the covered platform; 5
(iv) labeling that speech as 6
disinformation, misinformation, or false, or 7
by making any similar characterization 8
with respect to the speech; or 9
(v) otherwise blocking, banning, delet-10
ing, deprioritizing, demonetizing, 11
deboosting, limiting the reach of, or re-12
stricting access to the speech; 13
(B) direct or encourage a provider to share 14
with an Executive agency covered information 15
containing data or information regarding a par-16
ticular topic, or a user or group of users on the 17
applicable covered platform, including any cov-18
ered information shared or stored by users on 19
the covered platform; 20
(C) work, directly or indirectly, with any 21
private or public entity or person to take an ac-22
tion that is prohibited under subparagraph (A) 23
or (B); or 24
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(D) on behalf of the Executive agency em-1
ploying the employee— 2
(i) enter into a partnership with a 3
provider to monitor any content dissemi-4
nated on the applicable covered platform; 5
or 6
(ii) solicit, accept, or enter into a con-7
tract or other agreement (including a no- 8
cost agreement) for free advertising or an-9
other promotion on a covered platform. 10
(2) E
XCEPTION.—Notwithstanding subpara-11
graph (B) of paragraph (1), the prohibition under 12
that subparagraph shall not apply with respect to an 13
action by an Executive agency or employee pursuant 14
to a warrant that is issued by— 15
(A) a court of the United States of com-16
petent jurisdiction in accordance with the proce-17
dures described in rule 41 of the Federal Rules 18
of Criminal Procedure; or 19
(B) a State court of competent jurisdic-20
tion. 21
(3) E
MPLOYEE DISCIPLINE.— 22
(A) I
N GENERAL.—Notwithstanding any 23
provision of title 5, United States Code, and 24
subject to subparagraph (B), the head of an 25
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Executive agency employing an employee who 1
violates any provision of paragraph (1) (or, in 2
the case of the head of an Executive agency 3
who violates any provision of paragraph (1), the 4
President) shall impose on that employee— 5
(i) disciplinary action consisting of re-6
moval, reduction in grade, suspension, or 7
debarment from employment with the 8
United States; 9
(ii) a civil penalty in an amount that 10
is not less than $10,000; 11
(iii) ineligibility for any annuity under 12
chapter 83 or 84 of title 5, United States 13
Code; and 14
(iv) permanent revocation of any ap-15
plicable security clearance held by the em-16
ployee. 17
(B) S
PECIFIC CONTRACTOR DISCIPLINE .— 18
In the case of an employee described in section 19
2(4)(A)(ii)(I) who violates any provision of 20
paragraph (1), in addition to any discipline that 21
may be applicable under subparagraph (A) of 22
this paragraph, that employee shall be barred 23
from working under any contract with the Fed-24
eral Government. 25
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(b) PRIVATERIGHT OFACTION.— 1
(1) I
N GENERAL.—A person, the account, con-2
tent, speech, or other information of which has been 3
affected in violation of this section, may bring a civil 4
action in the United States District Court for the 5
District of Columbia for reasonable attorneys’ fees, 6
injunctive relief, and actual damages against— 7
(A) the applicable Executive agency; and 8
(B) the employee of the applicable Execu-9
tive agency who committed the violation. 10
(2) P
RESUMPTION OF LIABILITY .—In a civil ac-11
tion brought under paragraph (1), there shall be a 12
rebuttable presumption against the applicable Exec-13
utive agency or employee if the person bringing the 14
action demonstrates that the applicable employee 15
communicated with a provider on a matter relating 16
to— 17
(A) covered information with respect to 18
that person; or 19
(B) a statement made by that person on 20
the applicable covered platform. 21
SEC. 5. REPORTING REQUIREMENTS. 22
(a) I
NGENERAL.—Not later than 90 days after the 23
date of enactment of this Act, and not less frequently than 24
once every 90 days thereafter, the head of each Executive 25
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agency shall submit to the Director and the chair and 1
ranking member of the Committee on Homeland Security 2
and Governmental Affairs of the Senate, the Committee 3
on the Judiciary of the Senate, the Committee on Over-4
sight and Government Reform of the House of Represent-5
atives, and the Committee on the Judiciary of the House 6
of Representatives a report that discloses, for the period 7
covered by the report, each communication between a rep-8
resentative of a provider and an employee of that Execu-9
tive agency— 10
(1) including any such communication that con-11
stitutes a violation of section 4(a)(1); and 12
(2) not including any such communication that 13
relates to combating child pornography or exploi-14
tation, human trafficking, or the illegal transporting 15
or transacting in controlled substances. 16
(b) C
ONTENTS.—Each report submitted under sub-17
section (a) shall include, with respect to a communication 18
described in that subsection— 19
(1) the name and professional title of each em-20
ployee and each representative of a provider engaged 21
in the communication; and 22
(2) if the communication constitutes a violation 23
of section 4(a)(1)— 24
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(A) a detailed explanation of the nature of 1
the violation; and 2
(B) the date of the violation. 3
(c) P
UBLICATION.— 4
(1) I
N GENERAL.—Not later than 5 days after 5
the date on which the Director receives a report 6
under subsection (a), the Director shall— 7
(A) collect the report and assign the report 8
a unique tracking number; and 9
(B) publish on a publicly accessible and 10
searchable website the contents of the report 11
and the tracking number for the report. 12
(2) S
UBJECT OF REPORT .—With respect to a 13
report submitted pursuant to subsection (a) of which 14
an individual is a subject, not later than the end of 15
the business day following the business day on which 16
the report is submitted, the Director shall make a 17
reasonable effort to contact any person or entity di-18
rectly affected by a violation of this Act described in 19
the report to inform that person of the report. 20
SEC. 6. CYBERSECURITY INFRASTRUCTURE AND SECURITY 21
AGENCY REPORT. 22
Not later than 180 days after the date of enactment 23
of this Act, the Secretary of Homeland Security shall sub-24
mit to the Director and the chair and ranking member 25
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of the Committee on Homeland Security and Govern-1
mental Affairs of the Senate and the Committee on Over-2
sight and Government Reform of the House of Represent-3
atives a report that discloses any action of an employee 4
of the Cybersecurity and Infrastructure Security Agency 5
that— 6
(1) occurred between November 16, 2018, and 7
the date of enactment of this Act; and 8
(2) would have been in violation of section 9
4(a)(1). 10
SEC. 7. TERMINATION OF DISINFORMATION GOVERNANCE 11
BOARD. 12
(a) T
ERMINATION.—The Disinformation Governance 13
Board established by the Department of Homeland Secu-14
rity, if in existence on the date of enactment of this Act, 15
is terminated. 16
(b) P
ROHIBITIONAGAINSTFEDERALFUNDING.—No 17
Federal funds may be used to establish or support the ac-18
tivities of any other entity that is substantially similar to 19
the Disinformation Governance Board terminated pursu-20
ant to subsection (a). 21
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SEC. 8. PROHIBITION ON MISINFORMATION AND 1
DISINFORMATION GRANTS. 2
The head of an Executive agency may not award a 3
grant relating to programming on misinformation or 4
disinformation. 5
SEC. 9. GRANT TERMS. 6
(a) C
ERTIFICATION.—The recipient of a grant award-7
ed by an Executive agency on or after the date of enact-8
ment of this Act shall certify to the head of the Executive 9
agency that the recipient or a subgrantee of the recipient, 10
during the term of the grant, will not designate any cre-11
ator of news content, regardless of medium, as a source 12
of misinformation or disinformation. 13
(b) P
UBLICATION.—Not later than 10 days after the 14
date on which an Executive agency awards a grant, the 15
head of the Executive agency shall publish the certification 16
received under subsection (a) with respect to the grant on 17
Grants.gov, or any successor website. 18
(c) P
ENALTY.—Upon a determination by the head of 19
an Executive agency that a recipient or subgrantee of a 20
recipient has violated the certification of the recipient 21
under subsection (a), the recipient or subgrantee, respec-22
tively, shall— 23
(1) repay the grant associated with the certifi-24
cation; and 25
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(2) be ineligible to receive a grant from the Ex-1
ecutive agency. 2
SEC. 10. PRESIDENTIAL WAR POWERS UNDER THE COMMU-3
NICATIONS ACT OF 1934. 4
(a) I
NGENERAL.—Section 706 of the Communica-5
tions Act of 1934 (47 U.S.C. 606) is amended— 6
(1) by striking subsections (c) through (g); and 7
(2) by redesignating subsection (h) as sub-8
section (c). 9
(b) T
ECHNICAL ANDCONFORMINGAMENDMENTS.— 10
Section 309(h) of the Communications Act of 1934 (47 11
U.S.C. 309(h)) is amended— 12
(1) by inserting ‘‘and’’ before ‘‘(2)’’; and 13
(2) by striking ‘‘Act;’’ and all that follows 14
through the period at the end and inserting the fol-15
lowing: ‘‘Act.’’. 16
SEC. 11. APPLICABILITY OF FOIA. 17
(a) D
EFINITION.—In this section, the term ‘‘agency’’ 18
has the meaning given the term in section 551 of title 5, 19
United States Code. 20
(b) A
PPLICABILITY.—Notwithstanding any provision 21
of section 552 of title 5, United States Code, any request 22
made to an agency pursuant to that section for records 23
relating to communication between an employee and a rep-24
resentative of a provider— 25
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(1) shall be granted by the agency without re-1
gard to any exemption under subsection (b) of that 2
section, except the agency may not release any iden-3
tifying information of a user of a covered platform 4
without express written consent granted by the user 5
to the agency; and 6
(2) may not be granted by the agency if the 7
communication occurred pursuant to a warrant de-8
scribed in section 4(a)(2). 9
Æ
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