S. 188 — Free Speech Protection Act

This section defines terms used in the Act, including (1) "covered information," meaning information relating to phone calls, digital communications (e.g., posts, emails, texts), photos, shopping history, location data, IP addresses, metadata, search history, user demographics, and calendar items; (2) "covered platform," meaning an interactive computer service as defined in Section 230(f) of the Communications Act (47 U.S.C. 230(f)) or any platform through which a media organization disseminates information regardless of channel (e.g., broadcast, print, or online); (3) "Director," meaning the Director of the Office of Management and Budget; (4) "employee," meaning Executive agency employees, contractors performing work for Executive agencies, the President, and the Vice President; (5) "Executive agency," having the meaning given in 5 U.S.C. 105 and including the Executive Office of the President; and (6) "provider," meaning a provider of a covered platform.

This section states congressional findings affirming First Amendment protections for freedoms of religion, speech, assembly, and petition—citing Thomas Jefferson, Supreme Court precedents (e.g., Palko v. Connecticut, Brandenburg v. Ohio, 303 Creative LLC v. Elenis), and the principle that content-based restrictions are presumptively invalid except for speech intended and likely to incite imminent lawless action—and documenting federal officials' efforts to suppress legal speech on social media platforms concerning COVID-19 narratives, the 2020 election (including FBI communications on a New York Post story about Hunter Biden's laptop), the Department of Homeland Security's Disinformation Governance Board, and $330,000 in federal grants since 2020 to nonprofits affiliated with the Global Disinformation Index.

This section establishes prohibitions applicable to employees of executive agencies (including contractors) acting under official authority or influence, barring them from using any communication to direct, coerce, compel, or encourage a provider of a covered platform to (1) censor speech protected by the U.S. Constitution—such as by removing, suppressing, or labeling it as disinformation; suspending users; or otherwise restricting access to the speech; (2) share covered information regarding a particular topic or users; (3) work with private or public entities to take such actions; or (4) enter partnerships to monitor content or solicit free advertising or agreements from providers. It provides an exception permitting executive agencies to obtain covered information pursuant to a warrant from a U.S. or state court of competent jurisdiction. The section further mandates discipline for violations—including removal, reduction in grade, suspension, or debarment; a civil penalty of not less than $10,000; annuity ineligibility under 5 U.S.C. chapters 83 or 84; and permanent revocation of security clearances (with contractors additionally barred from federal contracts)—to be imposed by the agency head or, for agency heads, the President. Finally, this section creates a private right of action in the U.S. District Court for the District of Columbia, allowing affected persons to seek attorneys’ fees, injunctive relief, and actual damages against the agency and responsible employee, with a rebuttable presumption of liability upon demonstration of relevant employee-provider communication.

This section requires the head of each executive agency to submit a report to the Director and the chairs and ranking members of the Senate Committee on Homeland Security and Governmental Affairs, the Senate Committee on the Judiciary, the House Committee on Oversight and Government Reform, and the House Committee on the Judiciary—not later than 90 days after enactment and every 90 days thereafter—disclosing each communication between an agency employee and a provider representative during the covered period, including any violation of section 4(a)(1) but excluding communications related to combating child pornography or exploitation, human trafficking, or illegal transporting or transacting in controlled substances. Each report must include (1) the name and professional title of each participant and (2) for violations of section 4(a)(1), a detailed explanation of the violation and its date. Not later than five days after receipt, the Director must assign a unique tracking number to the report and publish its contents on a publicly accessible, searchable website; additionally, by the end of the next business day, the Director must make a reasonable effort to notify any person or entity directly affected by a described violation.

This section directs the Secretary of Homeland Security to submit to the Director, and the chair and ranking member of the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Government Reform, not later than 180 days after enactment of this Act, a report disclosing any action by a Cybersecurity and Infrastructure Security Agency (CISA) employee between November 16, 2018, and the date of enactment that would have violated section 4(a)(1).

This section terminates the Disinformation Governance Board established by the Department of Homeland Security, if in existence on the date of enactment. It prohibits federal funds from being used to establish or support any substantially similar entity.

This section requires recipients of grants awarded by Executive agencies on or after enactment to certify to the agency head that neither the recipient nor any subgrantee will designate any creator of news content—regardless of medium—as a source of misinformation or disinformation during the grant term. It directs agency heads to publish these certifications on Grants.gov (or successor website) within 10 days of award. It specifies that upon an agency determination of violation, the recipient or subgrantee must repay the grant and becomes ineligible to receive future grants from that agency.

This section strikes subsections (c) through (g) of Section 706 of the Communications Act of 1934 (47 U.S.C. 606)—which provide for termination of presidential authority six months after proclamation of war or emergency cessation, compensation to parties whose facilities are damaged or taken, monthly reports to congressional leaders, and immediate effectiveness of presidential orders—and redesignates subsection (h) as subsection (c). (As background, Section 706 authorizes the President, upon proclaiming a state or threat of war involving communications systems, to suspend or amend any FCC license, authorization, or construction permit (subsection (a)) and, during war, to suspend station operations or close facilities (subsection (b)); it applies to radio stations, common carriers, and related services.) This section also makes technical and conforming amendments to Section 309(h) of such Act (47 U.S.C. 309(h)) by inserting "and" before paragraph (2) and striking the phrase following "Act" (previously cross-referencing Section 706 and certain other authorities). (Thus, Section 309(h), which governs tolling agreements for Commission processing timelines on license applications, no longer excepts periods of presidential authority under Section 706.)

This section requires agencies, notwithstanding exemptions under subsection (b) of the Freedom of Information Act (FOIA; 5 U.S.C. §552), to grant FOIA requests for records of communications between an agency employee (as defined in 5 U.S.C. §551) and a representative of a provider—(1) without regard to such exemptions, except prohibiting release of identifying information of a covered platform user absent the user's express written consent to the agency; and (2) not at all if the communication occurred pursuant to a warrant described in section 4(a)(2).