[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.
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\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.
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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\
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\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).
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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\
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\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.
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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\
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\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.
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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\
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\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)).
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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.
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\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).
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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\
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\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.'')).
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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.
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\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)).
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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\
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\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).
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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.
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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.
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\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.
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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.
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\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]