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U.S. Sen. Rand Paul (R-Ky.), Ranking Member of the Senate Homeland Security and Governmental Affairs Committee, and House Judiciary Committee Chairman Jim Jordan (R-Ohio) on July 20 introduced legislation, the Free Speech Protection Act, that promises to rein in censorship by the executive branch of regular Americans on social media.
The censorship, or relaying of so-called misinformation, disinformation, and misinformation concerns to social media, has been ongoing for years and even predates the current tenure of President Joe Biden and has targeted all manner of political speech otherwise protected by the First Amendment to the U.S. Constitution.
On July 4, U.S. District Judge Terry Doughty of the United States District Court for the Western District of Louisiana placed a nationwide injunction—now temporarily stayed by the Fifth Circuit Court of Appeals — on the White House, federal government departments and agencies, including the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, the State Department’s Global Engagement Center and the Justice Department’s F.B.I. Foreign Influence Task Force from coordinating with and pressuring social media companies, including Facebook, Twitter, Google, and YouTube, to remove political speech from their platforms that opposed tyrannical government policies during Covid, including lockdowns, vaccine and mask mandates, opposition to the outcome of the 2020 election, exposed the Hunter Biden laptop story and any future efforts to squelch speech, calling the activities “the most massive attack against free speech in United States’ history…”
According to Doughty, in granting the injunctive relief, “The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Biden’s policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed.”
The suppressed speech almost exclusively came from political opponents of the Biden administration, pointing to a targeted campaign of “viewpoint discrimination”: “It is quite telling that each example or category of suppressed speech was conservative. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to freely debate the significant issues affecting the country.”
And Doughty called the actions, which began before Biden even took office, an Orwellian “Ministry of Truth” from George Orwell’s warning of totalitarian censorship in his book 1984: “Although this case is still relatively young, and at this stage, the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario. During the COVID-19 pandemic, perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’ The Plaintiffs have presented substantial evidence supporting their claims that they were the victims of a far-reaching and widespread censorship campaign. This Court finds that they will likely succeed on the merits of their First Amendment free speech claim against the Defendants. Therefore, a preliminary injunction should issue immediately against the Defendants as set out herein.”
As for the expansive injunction, it just about covers all the bases of the activities in evidence at the trial. It forbids the government from: “(1) meeting 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; (2) specifically flagging content or posts on social-media platforms and/or forwarding such to social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech; (3) urging, encouraging, pressuring, or inducing in any manner social-media companies to change their guidelines for removing, deleting, suppressing, or reducing content containing protected free speech; (4) emailing, calling, sending letters, texting, or engaging in any communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech; (5) collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group for the purpose of urging, encouraging, pressuring, or inducing in any manner removal, deletion, suppression, or reduction of content posted with social-media companies containing protected free speech; (6) threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech; (7) taking any action such as urging, encouraging, pressuring, or inducing in any manner social-media companies to remove, delete, suppress, or reduce posted content protected by the Free Speech Clause of the First Amendment to the United States Constitution; (8) following up with social-media companies to determine whether the social-media companies removed, deleted, suppressed, or reduced previous social-media postings containing protected free speech; (9) requesting content reports from social-media companies detailing actions taken to remove, delete, suppress, or reduce content containing protected free speech; and (10) notifying social-media companies to Be on The Lookout (‘BOLO’) for postings containing protected free speech.”
The injunction effectively shuts down government efforts to coordinate and act in concert with social media in removing content. Presumably, if the plaintiffs are successful, a full trial would find that the activities outlined violated the First Amendment to the Constitution’s protection against abridgment of free speech.
And now the Paul-Jordan legislation would explicitly ban it all.
Under Section 4 of the bill, “An employee acting under official authority or influence may not… use any form of communication (without regard to whether the communication is visible to members of the public) to direct, coerce, compel, or encourage a provider to take, suggest or imply that a provider should take, or request that a provider take any action to censor speech that is protected by the Constitution of the United States, including by… removing that speech from the applicable covered platform; … suppressing that speech on the applicable covered platform; … removing or suspending a particular user (or a class of users) from the applicable covered platform or otherwise limiting the access of a particular user (or a class of users) to the covered platform; … labeling that speech as disinformation, misinformation, or false, or by making any similar characterization with respect to the speech; or … otherwise blocking, banning, deleting, deprioritizing, demonetizing, deboosting, limiting the reach of, or restricting access to the speech…”
Nor can an employee “direct or encourage a provider to share with an Executive agency covered information containing data or information regarding a particular topic, or a user or group of users on the applicable covered platform, including any covered information shared or stored by users on the covered platform; … work, directly or indirectly, with any private or public entity or person to take an action that is prohibited under [the law]….”
Nor can an employee “on behalf of the Executive agency employing the employee… enter into a partnership with a provider to monitor any content disseminated on the applicable covered platform; or … solicit, accept, or enter into a contract or other agreement (including a no cost agreement) for free advertising or another promotion on a covered platform.”
That about covers it, and the best part is it would supersede existing laws that otherwise allow the Government to communicate with private sector entities, including social media.
In 2018, Congress unanimously passed legislation in the closing days of the Republican-controlled House on unanimous consent, H.R. 3359, that authorizes the Secretary of Homeland Security and the newly created Cybersecurity and Infrastructure Security Agency (CISA) — one of the worst censorship offenders in the federal court injunction — to disseminate information to the private sector including Big Tech social media companies in a bid to combat potential foreign and domestic terrorists.
The law authorizes CISA to “To access, receive, and analyze law enforcement information, intelligence information, and other information from agencies of the Federal Government, State and local government agencies (including law enforcement agencies), and private sector entities, and to integrate such information, in support of the mission responsibilities of the Department and the functions of the National Counterterrorism Center established under section 119 of the National Security Act of 1947 [50 U.S.C. 3056], in order to… identify and assess the nature and scope of terrorist threats to the homeland;…detect and identify threats of terrorism against the United States; and … understand such threats in light of actual and potential vulnerabilities of the homeland.”
The law also allows CISA to “disseminate, as appropriate, information analyzed by the Department within the Department, to other agencies of the Federal Government with responsibilities relating to homeland security, and to agencies of State and local governments and private sector entities with such responsibilities to assist in the deterrence, prevention, preemption of, or response to, terrorist attacks against the United States.”
With that authority, CISA says it “rout[es] disinformation concerns” to “appropriate social media platforms”: “The [Mis, Dis, Malinformation] M.D.M. team serves as a switchboard for routing disinformation concerns to appropriate social media platforms and law enforcement,” according to the agency’s website.
This has happened since 2018: “This activity began in 2018, supporting state and local election officials to mitigate disinformation about the time, place, and manner of voting.” And it was expanded in 2020: “For the 2020 election, CISA expanded the breadth of reporting to include other state and local officials and more social media platforms.” During the pandemic, CISA also targeted Covid “disinformation” too: “COVID-19…create[d] opportunities for adversaries to act maliciously. The M.D.M. team supports…private sector partners’ COVID-19 response…via regular reporting and analysis of key pandemic-related M.D.M. trends.”
The agency bragged about its “rapport” with Big Tech firms in censoring speech. Hence, they’re on the same page: “This activity leverages the rapport the M.D.M. team has with the social media platforms to enable shared situational awareness.
But with the new law, if passed and signed into law, that would all end.
In March, CISA scrubbed these pages to conceal its blatant censorship activities, but they have been preserved by web.archive.org. Here is CISA’s M.D.M. page from Feb. 20, 2023, at http://web.archive.org/web/20230220065334/cisa.gov/mdm. Similarly, CISA’s election security page at https://www.cisa.gov/election-security has been scrubbed from its earlier iteration. An archived page version from Feb. 20, 2023, is still available at http://web.archive.org/web/20230220031118/https://www.cisa.gov/election-security. So too, has its so-called Rumor Control page at https://www.cisa.gov/rumorcontrol been changed, which can still be found at http://web.archive.org/web/20230220062536/https://www.cisa.gov/rumorcontrol.
In addition to the CISA authorizing statute, the 2018 through 2020 National Defense Authorization Acts included extensive provisions allowing the Government to target what it calls “foreign malign influence” by Russia and other countries, but which was used to target the speech of regular Americans, including violating the freedom of the press as it related to reports about Russiagate and also the Hunter Biden laptop story.
In the 2018 NDAA, under Sec. 1239A it authorized the censorship: “The Secretary of Defense and the Secretary of State, in coordination with the appropriate United States Government officials, shall jointly develop a comprehensive strategy to counter the threat of malign influence” including “the use of misinformation, disinformation, and propaganda in social and traditional media” and “Efforts to work with traditional and social media providers to attribute and counter the threat of malign influence…”
That, too, would be superseded by the new law, as it covers all executive departments and agencies, including the Department of Defense, who undoubtedly will complain that this will somehow prevent them from stopping terrorist communications, child trafficking, etc. But the Paul-Jordan anticipates that and provides, “Notwithstanding subparagraph (B) of paragraph (1), the prohibition under that subparagraph shall not apply concerning an action by an Executive agency or employee under a warrant that is issued by … a court of the United States of competent jurisdiction by the procedures described in rule 41 of the Federal Rules of Criminal Procedure; or … a State court of competent jurisdiction.”
So, if, for example, a message board or other private chat were being used to plan terrorist attacks, drug or human trafficking, and so forth in violation of federal and state laws, and a court had issued a warrant for the arrest of those individuals, then the provisions of the Paul-Jordan bill would not apply, because that would not be protected speech.
This meets with the standards of the Brandenburg v. Ohio Supreme Court decision of 1969, which found “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That was a case of white supremacists who, in demonstrations, were advocating the overthrow of the Government; however, as there was no actual attempt to do so, it was protected political speech.
So, under the bill, there would still need to be an actual criminal prosecution not merely for expressing sentiments that, if acted upon, would violate the law but were factually a part of an actual criminal plan to violate the law. That’s an exceptionally high standard, but it is also about the only speech—for example, a phone call to a hitman to murder someone—that the Government is allowed under the First Amendment to concern itself with because it would be evidence of a crime.
The standard under the bill of a Fourth Amendment warrant applies to criminal prosecutions under the Federal Rules of Criminal Procedure. It should preclude any monkey business with the very different standards used by the Foreign Intelligence Surveillance Act (FISA) court.
The bill also provides for penalties for any government employee found to be violating the statute, including fines of no less than $10,000 and permanent revocation of the employee’s security clearance and bar of working under a federal contract.
And it includes a private right of action for individuals ever censored by the government “for reasonable attorneys’ fees, injunctive relief, and actual damages,” removing any presumption of sovereign immunity and indemnity from the Federal Government.
This is the best and most comprehensive bill I’ve seen so far that addresses at point blank range the specific activities that have been occurring by federal departments and agencies, and rather than playing whack-a-mole with this or that agency or board, includes a blanket, enforceable prohibition for all federal departments and agencies. Target the activity.
But passing it will not be easy, even if the provisions would equally protect Republicans, Democrats, independents, and everyone else from government censorship. As can be seen with the CISA and NDAA provisions, there is almost always a colorable rationale for the Government to intervene and remove what it perceives to be enemy communications and propaganda from U.S. media outlets, including social media. For example, they wanted to call the Hunter Biden laptop Russian disinformation, even though it was not.
Fortunately, the provisions of the Paul-Jordan right-to-dissent legislation would also make for a particularly good defund in the House and Senate appropriations bills or in any omnibus spending bill that tends to pass each fiscal year, to deny funds to departments and agencies to report on or convey supposed disinformation, misinformation or malinformation concerns on social media. Just add the language from the bill and “none of the funds shall be used for” and stick it in a funding bill.
If the Free Speech Protection Act is filibustered, make it a part of appropriations, and if opponents want to shut down the Government over it, that’s their prerogative. Force them to defend the censorship. There can be no debate without free speech, and nobody should be getting paid, while this remains an outstanding concern. In any event, it would be a curious objection since the Government is denying it is doing any of the things covered by the legislation and the federal court injunction. If federal employees are not doing anything wrong and not violating the freedom of speech and of the press, they have nothing to worry about. If there is no censorship taking place, why object to its prohibition?
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
Cross Posted with Conservative Firing Line
