Mr. President, I rise--maybe there are some discussions happening about amendments actually happening. I would hope in a Chamber that has historically been known as the world's most deliberative body that we can actually do that. I find it…
Mr. President, I rise--maybe there are some discussions happening about amendments actually happening. I would hope in a Chamber that has historically been known as the world's most deliberative body that we can actually do that. I find it hard to believe--and it has happened on occasion--that Senators who were elected here by entire States actually don't have the opportunity to offer amendments to have them voted on. But here we are, and those are, I guess, some discussions that are taking place.
I do have an amendment and one that saves $110 million and displaces a position dedicated to algorithmic justice, whatever in the world that is. But I thought it would be a good opportunity--because ``algorithmic justice'' sounds very Orwellian to me--to highlight some of the real abuses we have seen of free speech in the last few years.
I am 48. So I suppose I am one of the younger members in the Senate. But I am also old enough to remember when people of all political stripes, including liberals, actually believed in free speech; that it was something that we believed provided a part of our national identity. What makes America exceptional is that we can tolerate different points of view--agree and disagree, persuade, be willing to be persuaded--that that is a core American value.
I think what has happened in the last few years is this debate has somehow gotten off the rails about the willingness of some to actually censor because they disagree or they think something is threatening or it might be misinformation. That might well be true, but the government certainly doesn't have a right to tell you what you can hear and what you can say. It just doesn't. It is fundamental, and they also don't get to outsource that censorship to private parties.
In my last job, I filed a lawsuit Missouri v. Biden. And Missouri v. Biden exposed a vast censorship enterprise. It is actually being heard in the U.S. Supreme Court in about 2 weeks. So we filed the lawsuit-- Missouri and Louisiana filed it--and we were actually able to obtain discovery in advance of the preliminary injunction hearing, which was a win.
So thousands, literally tens of thousands of pages of emails and text messages were exposed. And all I can say is--if I have the opportunity to use all of my time, I could use--by the way, I would be more than willing to go more than an hour--we will get to the court's ruling. But I thought it might be worth highlighting because many Members--maybe this will boost C-SPAN viewership. I don't know--but many of the Members may not have heard the allegations and then ultimately what was proven to the court in their opinion.
In 1783, George Washington warned that if ``the freedom of Speech may be taken away--[then] dumb & silent we may be led, like sheep, to the Slaughter.''
That was in George Washington's Address to the officers in the Army on March 15, 1783.
I think what I will do for the sake of cutting out some of this is leave the citations out. You will have to trust me, but it is all on the record. So you can find this. The citations are, in fact, noted.
The freedom of speech in the United States now--this is, by the way, from the second amended complaint that was filed on June of 2022 in the United States District Court for the Western District of Louisiana, the Monroe Division.
The freedom of speech in the United States now faces one of
its greatest assaults by federal government officials in our
nation's history.
A private entity violates the First Amendment ``if the
government coerces or induces it to take action the
government itself would not be permitted to do, such as
censor expression of a lawful viewpoint. The government
cannot accomplish, through threats of adverse government
action what the Constitution prohibits it from doing
directly.''
That is exactly what occurred over the past several years, beginning with express and implied threats from government officials and culminating in the Biden administration's open and explicit censorship programs.
Having threatened and cajoled social media platforms for years to censor viewpoints and speakers disfavored by the left, senior government officials in the executive branch have moved into place-- does anybody--can you find some readers? I mentioned 48, but here we go. The font on this, that I printed off, is more difficult to read than I would have thought.
. . . moved into a phase of open collusion with social-
media companies to suppress disfavored speakers, viewpoints,
and content on social-media platforms under the Orwellian
guise of halting so-called ``disinformation,''
``misinformation,'' or ``malinformation.''
4. The aggressive censorship that Defendants have procured
constitutes government action for at least five reasons: (1)
absent federal intervention, common-law and statutory
doctrines, as well as voluntary conduct and natural free-
market forces, would have restrained the emergence of
censorship and suppression of speech of disfavored speakers,
content, and viewpoint on social media; and yet, (2) through
Section 230 of the Communications Decency Act (CDA) and other
actions, the federal government subsidized, fostered,
encouraged, and empowered the creation of a small number of
massive social-media companies with disproportionate ability
to censor and suppress speech on the basis of speaker,
content, and viewpoint; (3) such inducements as Section 230
and other legal benefits (such as the absence of antitrust
enforcement) constitute an immensely valuable benefit to
social-media platforms and incentive to do the bidding of
federal officials; (4) federal officials--including, most
notably, certain Defendants herein--have repeatedly and
aggressively threatened to remove these legal benefits and
impose other adverse consequences on social-media platforms
if they do not aggressively censor and suppress disfavored
speakers, content, and viewpoints on their platforms; and (5)
Defendants herein, colluding and coordinating with each
other, have also directly coordinated and colluded with
social-media platforms to identify disfavored speakers,
viewpoints, and content and thus have procured the actual
censorship and suppression of the freedom of speech. These
factors are both individually and collectively sufficient to
establish government action in the censorship and suppression
of social-media speech, especially given the inherent power
imbalance: not only do the government actors here have the
power to penalize noncompliant companies, but they have
threatened to exercise that authority.
So, in this case, government officials--so a lot of these lawsuits about what social media companies were doing, were filed against social media companies themselves who moved to the Northern District of California and were never to be seen again.
What made this lawsuit unique was government actors in their official capacity were sued because of their activity and their censorship by way of social media companies by threatening investigations, threatening to pull section 230 protections if they weren't censoring enough, threatening antitrust actions.
The complaint continues:
As a direct result of these actions, there have been an
unprecedented rise of censorship and suppression of free
speech--including core political speech--on social-media
platforms. Many viewpoints and speakers have been unlawfully
and unconstitutionally silenced in the modern public square.
These actions gravely threaten the fundamental right of free
speech and free discourse for virtually all citizens in
Missouri, Louisiana, and America, both on social media and
elsewhere. And they have directly impacted individual
Plaintiffs in this case, all of whom have been censored and/
or shadowbanned as a result of Defendants' actions.
Under the First Amendment, the federal Government should
play no role in policing private speech or picking winners
and losers in the marketplace of ideas. But that is what
federal officials are doing, on a massive scale--the full
scope and impact of which yet to be determined.
Secretary Mayorkas of DHS commented that the federal
Government's efforts to police private speech on social media
are occurring ``across the federal enterprise.'' It turns out
that this statement is quite literally true. This case
involves a massive, sprawling federal ``Censorship
Enterprise,'' which includes dozens of federal officials
across at least eleven federal agencies and components, who
communicate with social-media platforms about misinformation,
disinformation, and the suppression of private speech on
social media--all with the intent and effect of pressuring
social-media platforms to censor and suppress private speech
that federal officials disfavor.
Moving to the General Allegations.
A. Freedom of Speech Is the Bedrock of American Liberty.
The First Amendment of the U.S. Constitution states that
``Congress shall make no law . . . abridging the freedom of
speech, or of the press . . .'' et cetera.
Article I, subsection 8 of the Missouri Constitution provides something similar. I won't read the whole paragraph.
The freedom of speech and expression guaranteed by the
First Amendment is one of the greatest bulwarks of [our]
liberty. These rights are fundamental and must be protected
against government interference. . . .
If the President or Congress enacted a law or issued an
order requiring the suppression of certain disfavored
viewpoints or on social media, or directing social media to
demonetize, shadow-ban, or expel certain disfavored speakers,
such a law or order would be manifestly unconstitutional
under the First Amendment.
``If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion.''
That was in the West Virginia State Board of Education v. Barnette.
In another case the First Amendment was noted:
``[T]he First Amendment means that government has no power
to restrict expression because of its message, its ideas, its
subject matter, or its content.''
That is Ashcroft v. ACLU.
``In light of the substantial and expansive threats to free
[speech] posed by content-based restrictions, the Supreme
Court has rejected as `startling and dangerous' a `free-
floating test for First Amendment coverage . . . [based on]
an ad hoc balancing of relative social costs and benefits.'
''
U.S. v. Alvarez.
Section 2 of the General Allegations: Merely labeling speech ``misinformation'' or ``disinformation'' does not strip away First Amendment protection.
Labeling disfavored speech ``misinformation'' or
``disinformation'' does not strip it of First Amendment
protection. ``Absent from those few categories where the law
allows content-based regulation of speech is any general
exception to the First Amendment for false statements. This
comports with the common understanding that some false
statements are inevitable if there is to be open and vigorous
expression of views in public and private conversation,
expression the First Amendment seeks to guarantee.''
The Supreme Court has thus rejected the argument that
``false statements, as a general rule, are beyond
constitutional protection.''
``Permitting the government to decree this speech to be a
criminal offense, whether shouted from the rooftops or made
in a barely audible whisper, would endorse government
authority to compile a list of subjects about which false
statements are punishable. That governmental power has no
clear limiting principle. Our constitutional tradition stands
against the idea that we need Oceania's Ministry of Truth.''
That is cited from the previous case as well and also cited, by the way, ``Nineteen Eighty-Four'' by George Orwell.
``Were the Court to hold--
In that same case--
``Were the Court to hold that the interest in truthful
discourse alone is sufficient to sustain a ban on speech . .
. it would give government a broad censorial power
unprecedented in this Court's cases or in our constitutional
tradition. The mere potential for the exercise of that power
casts a chill, a chill the First Amendment cannot permit if
free speech, thought, and discourse are to remain a
foundation of our freedom.''
Section 3. Counterspeech, not censorship, is the proper response to ``misinformation.''
When the Government believes that speech is false and
harmful, ``counterspeech,'' not censorship, must ``suffice to
achieve its interest.'' The First Amendment presumes that
``the dynamics of free speech, of counterspeech, of
refutation, can overcome the lie.''
``The remedy for speech that is false is speech that is
true. This is the ordinary course in a free society. The
response to the unreasoned is the rational; to the
uninformed, the enlightened; to the straightout lie, the
simple truth.''
``The theory of our Constitution is `that the best test of
truth is the power of the thought to get itself accepted in
the competition of the market.''
It is in the same case, also quoting Abrams v. United States, 1919.
``The First Amendment itself ensures the right to respond
to speech we do not like, and for a good reason. Freedom of
speech and thought flows not from the beneficence of the
state but from the inalienable rights of the person. And
suppression of speech by the government can make exposure of
falsity more difficult, not less so. Society has the right
and civic duty to engage in open, dynamic, rational
discourse. These ends are not well served when the government
seeks to orchestrate public discussion through content-based
mandates.''
Section 4. Americans have a First Amendment right to be exposed to a free flow of speech, viewpoints, and content, free from censorship by government officials.
The First Amendment also protects the right to receive
others' thoughts, messages, and viewpoints freely, in a free
flow of public discourse. ``[W]here a speaker exists . . . ,
the protection afforded is to the communication, to its
source and to its recipients both.''
That is Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, from 1976.
The right to receive information is ``an inherent corollary
of the rights to free speech and press that are explicitly,
guaranteed by the Constitution,'' because ``the right to
receive ideas follows ineluctably from the sender's First
Amendment right to send them.''
``The dissemination of ideas can accomplish nothing if
otherwise willing addressees are not free to receive and
consider them. It would be a barren marketplace of ideas that
had only sellers and no buyers.'' Lamont v. Postmaster
General.
``A fundamental principle of the First Amendment is that
all persons have access to places where they can speak and
listen, and then, after reflection, speak and listen once
more.'' Packingham v. North Carolina.
``[A]ssuring that the public has access to a multiplicity
of information sources is a governmental purpose of the
highest order, for it promotes values central to the First
Amendment.'' Turner Broadcasting Sys., Inc. v. FCC.
I am going to skip a little bit here.
Section 5. Government officials may not circumvent the First Amendment by inducing, threatening, and/or colluding with private entities to suppress protected speech.
It is ``axiomatic'' that the government may not ``induce,
encourage, or promote private persons to accomplish what it
is constitutionally forbidden to accomplish.'' Norwood v.
Harrison.
A private entity violates the First Amendment if the
government coerces or induces it to take action the
government itself would not be permitted to do, such as
censor expression of a lawful viewpoint.'' Knight First
Amendment Institute.
``The government cannot accomplish through threats of
adverse government action what the Constitution prohibits it
from doing directly.''
Threats of adverse regulatory or legislative action, to
induce private actors to censor third parties' speech,
violate the First Amendment. See Hammerhead Enters. v.
Brezenoff (``Where comments of a government official can
reasonably be interpreted as intimating that some form of
punishment or adverse regulatory action will follow the
failure to accede to the official's request, a valid claim
can be stated.'')
I am going to save you all the citations from that.
The unprecedented control over private speech exercised by
social-media companies gives government officials an
unprecedented opportunity to circumvent the First Amendment
and achieve indirect censorship of private speech. ``By
virtue of its ownership of the essential pathway,'' a social
media platform ``can . . . silence the voice of competing
speakers with a mere flick of the switch.'' Turner.
``The potential for abuse of this private power over a
central avenue of communication cannot be overlooked.''
Part B. The Dominance of Social Media as a Forum for Public
Information and Discourse.
Social media companies have become, in many ways, ``the
modern public square.'' Social media platforms provide
``perhaps the most powerful mechanisms available to a private
citizen to make his or her voice heard.''
``Today's digital platforms provide avenues for
historically unprecedented amounts of speech, including
speech by government actors.''
By the way, you can follow that online. You can also listen to the Supreme Court arguments in 2 weeks.
I will just close with this. This is a case that is being argued, and as we talk about these issues, I would hope that, as a body, we could come together to allow individual Senators to offer amendments. I would hope that, over time, we can also find common ground on this idea that the government shouldn't have any business in suppressing speech. The temptation to control so-called misinformation is great, and this case stands for the proposition that you cannot outsource that to social media companies. It is an Orwellian scheme that played out
among a whole host of government agencies and bureaucracies, and I hope that case, which I think is the most important free speech case in the history of our country, spells it out very clearly.
Mr. President, I ask unanimous consent that the general allegations from the seconded amended complaint of Missouri v. Biden be printed in the Record.
With that, Mr. President, I yield the floor.
Madam President, I move to concur in the House amendment to the Senate amendment to H.R. 4366, with my amendment No. 1626.
Madam President, I will be brief and just sort of walk through this amendment. This is a good government amendment that I hope that everybody can get behind.
The House omnibus includes a provision allowing the NTIA to capture 337 million in IIJA funding to expand its bureaucracy.
So just to sort of walk through this, under the Infrastructure Act, there was $42 billion for administrative costs. That is $850 million. That money, as it relates to the BEAD Program, because it is pretty diffused across the country, they don't have a lot of those administrative costs.
So now they are coming back in under the BEAD Program and saying we need $337 million for administrative costs. But they have only justified $226 million. So this would save taxpayers $110 million.
If they want to justify it down the road for something specific, they can go ahead and do that. But this is to sort of deal with that. If you want another reason to support this: There is also some new initiative related to Algorithmic Justice--whatever that is--and we would make sure that no dollars go to Algorithmic Justice.
I will just respond.
I ask for 30 extra seconds.
Fifteen seconds.
I would just say this: If that were true, maybe you have a good reason to vote against it. That is not true. According to Commerce and Approps, there is $110 million that won't be affected by any of that. So this is just saving $110 million.
All the things the great Senator just talked about, all that is going to happen. You are not taking anything away. You are just saving $110 million that Commerce and Approps say has not been justified.
Vote on Motion to Concur with Amendment No. 1626
I ask for the yeas and nays.