Every American who values free speech (and that ought to include every American) owes a debt of gratitude to Kentucky Representative James Comer. Representative Comer recently assumed the chairmanship of the House Oversight and Reform Committee. Along with Ohio Representative Jim Jordan who now chairs the House Judiciary Committee, and Washington Representative Cathy McMorris Rogers, who now chairs the House Energy and Commerce Committee, Comer has introduced the “Protecting Speech from Government Interference Act” (HR 140). As the title suggests, the bill protects free speech by preventing government employees from using “… the employee’s official authority or influence to advocate that any third party, including a private entity, take any action to censor any speech.”
The bill is a response to the Twitter Files and other stories of government officials—up to and including President Biden— “encouraging” social media companies to “deplatform," thus essentially silencing, American citizens who were sharing opinions and news objectionable to government officials.
The bill specifically forbids all federal employees from censoring any American while they are on duty or in federal office, driving a vehicle owned or leased by the federal government, or while “….wearing a uniform or official insignia identifying the office or position of the employee.” Federal employees may only engage in censorship if they make sure they are doing it on their own time, while in no way explicitly or implicitly implying they are acting on behalf of the federal government.
However, employees whose salary is “paid from an appropriation for the Executive Office of the President”, who work in foreign policy, or who were appointed by the President and confirmed by the United States Senate are always considered to be “on duty”- and thus can never advocate for censorship.
The bill has real teeth in that it provides that any federal employee caught violating the law can be terminated and barred from future federal employment for a least five years, or fined up to $10,000. Violating the law would be grounds for impeachment of the President or Vice President.
The bill does not in any way stop private companies from making their own decisions regarding what content to post and what to block. Thus it provides an opportunity for the big tech companies— who are losing users and laying off employees—to “update” their content moderation policies. It also ensures that the smaller, newer companies, which have emerged to meet the demand of those seeking more free speech-friendly platforms continue to grow without fear of government pressure.
This is not to suggest the bill is perfect. It makes exceptions for information related to “national security.” While sounding reasonable, the concern is that government agents will stretch the definition of content touching on national security to silence any criticism of U.S. foreign policy on the grounds that it threatens national security. Hopefully, this exception will be tightened up as the bill moves through committees to clarify legitimate and serious national security threats.
Unfortunately, the legislation is likely to find critics from both the left and the right. Many progressives support government interference in the content moderation practices of private companies. These progressives think government must “partner” with social media to “protect” our democracy from “extremists” spewing “hate speech” or “Russian propaganda.” These progressives forget that many of the agencies they want to empower to help restrict speech have a long and shameful history of harassing progressive movements—like those opposing U.S. foreign policy and advocating for civil rights.
One group eager to use government power to censor progressives is the “post-liberal right.” This “new” right, which has emerged in wake of the rise of Donald Trump, challenges conservative orthodoxies and the phenomenon of “woke” capitalism. They seek to purge all libertarian and even constitutionalist tendencies from the right in order to create a conservatism that is willing and eager to use government power to punish its enemies. Big Tech is public enemy number one to many of the post-liberal conservatives. They have no interest in limiting government officials’ ability to pressure big tech to silence those with whom they disagree. They dream of using such power to force big tech to deplatform their woke opponents in future Republican Administrations.
The problem with this approach is that it assumes what works to advance progressivism—which is an ideology that seeks ever expanding government power—can work to advance American conservatism—which, with some exceptions, largely seeks to limit the federal government in order to grant maximum authority to local governments, churches, families, civil society, and individuals. The post-liberal right also assumes a constituency for their views that, based on recent elections, may not exist amongst the American people. In fact, cracking down on big tech would involve creating some unintended consequences for the consumers. These consumers may take out their frustrations on the politicians responsible for ruining the internet at the ballot box.
With the Protecting Speech From Government Interference Act, James Comer, Jim Jordan, and Cathy McMorris Rogers have taken a constitutional approach to address concerns about big tech censorship. Instead of putting new regulations on private companies, or using the fact that these are private companies as an excuse for inaction, Representative Comer’s bill fulfills Congress’ constitutional duty to protect the American people from federal bureaucrats who have no respect for the people’s constitutional rights. Comer’s bill will also allow concerns about private technology companies to be addressed by the marketplace, where a variety of alternatives to big tech are coming onto the market. Many of these are finding success by appealing to the unhappy with the existing market leaders' “content moderation:” policies. Americans who seek to return to the days when the internet was truly a free speech zone—and who want federal bureaucrats to either keep their hands off our First Amendment rights or face severe consequences—should contact their representatives to let them know.