Democrats vote against personal liability for federal censorship, saying it doesn't go far enough

Federal officials have thus far escaped personal liability for allegedly coercing social media platforms to suppress disfavored narratives on COVID-19, elections and Hunter Biden's laptop.

Congressional Republicans are hoping to change that through a bill approved by the House Judiciary Committee on a party-line vote Thursday that would let Americans sue federal employees – with two big exceptions – for violating their First Amendment rights.

The committee rejected a Democratic amendment to remove those exceptions, for the president and vice president, while Chairman Jim Jordan, R-Ohio, blocked a vote on another to expand the bill's scope to all constitutional rights for allegedly violating the House rule on germaneness.

The Censorship Accountability Act (HR 4848) is a selective expansion of Section 1983 of the U.S. Code, which created a private right of action against state and local officials for all constitutional violations and dates to Reconstruction.

It would subject federal officials who aren't president or vice president to "reasonable attorney's fees," under court discretion, for victorious plaintiffs. The only approved amendment Thursday was a substitute making punctuation changes.

Sponsoring Rep. Dan Bishop, R-N.C., defended its limitation to the First Amendment as a "test case" to target today's most pressing constitutional violation for the average American, which he said was viewpoint discrimination.

White House officials demanded the squelching of true-but-inconvenient "malinformation," the FBI considered surveilling conservative Catholics as potential threats, and a federal court recently dismissed Riot Act charges against far-right activists because the Justice Department ignored the same behavior by far-left peers, Bishop said.

The bill has "largely unexamined possibilities" against the federal intelligence apparatus, he said, mocking the "ridiculous canard" that Ron DeSantis was banning books, which would make the Florida GOP governor personally liable under Section 1983.

"It would be a great bipartisan exercise" for Democrats to support the bill and have a "camel's nose under the tent" so they can approve further protections in future legislation, Bishop said. He noted Democrats sponsored 2021 legislation that would do the same as the GOP bill, but apply to additional rights.

Republicans repeatedly invoked IRS audits of conservative nonprofits more than 10 years ago, which prompted then-Exempt Organizations Director Lois Lerner to assert her Fifth Amendment rights, as the type of behavior the bill would dissuade. 

"Every person in the government who's done this for the last decade has got off scot-free," said Rep. Thomas Massie, R-Ky., a new member during those IRS hearings. "It is long overdue" to take action against such abuses, a recurring complaint from his constituents, Massie said.

Rep. Tom McClintock, R-Calif., said he knows some conservatives who remain chilled from activism because they fear a viewpoint-based IRS audit. "For every right there's got to be a remedy," he said.

Rep. Victoria Spartz, R-Ind., grew up under Soviet rule in Ukraine and immigrated to the U.S. as an adult before becoming a citizen. She inveighed against the government using taxpayer money for a "dictatorship of opinion" and its use of "tyrannical techniques."

Democrats repeatedly pressed GOP members to start over with legislation that covers all constitutional rights, especially those involving law enforcement violations and faulted them for not first holding a hearing on the bill to probe potential problems.

That suggests HR 4848 could receive a chilly reception in the Democrat-ruled Senate, assuming the GOP-controlled House both votes on and approves the bill. Its Senate companion (S 2616) hasn't moved since they were both introduced in late July.

"We are wasting the committee's time on yet another political stunt" after a year of Weaponization of the Federal Government Subcommittee hearings that have revealed no evidence of White House collusion with social media to censor speech, said New York Rep. Jerry Nadler, the committee's top Democrat.

In principle, HR 4848 "could have been a worthy starting point" for revising the law on constitutional tort litigation, but at best it suffers from "sloppy drafting" such as wording that could endanger federal employees' religious freedoms within their agencies, he said.

By importing "all the federal case law interpreting" Section 1983, it could also limit damages for victorious plaintiffs and give federal officials qualified immunity, Nadler also said.

The minority blasted the bill's continuing immunity for the president and vice president as nonsensical but had similar concerns about putting rank-and-file employees at risk for "simply doing their jobs" at the direction of higher-ups, in Nadler's words.

The bill is silent on who's "ultimately responsible," the superior who gave the order or the inferior who implemented it, and federal employees are already limited by the Office of Management and Budget in what they can say for the sake of "consistency," said Rep. Glenn Ivey, D-Md. 

Former President Trump's actions are a "real-world example" why the top office cannot be exempt, said Ivey, who offered the failed amendment removing the exceptions. 

That's why Ivey should support the bill, countered cosponsor Rep. Harriet Hageman, R-Wyoming, so Americans can hold Donald Trump's next administration accountable.

"Perish the thought," Ivey chuckled.

Hageman said the bill actually protects lower-level employees by giving them cover to refuse superiors' orders to violate First Amendment rights. 

It would hold accountable "anyone involved in that chain of command who made that decision" within the FBI to surveil Catholics, which was "not just one field office, it was throughout the country," Hageman said. Bishop told Ivey the bill would indeed apply to the FBI director.

Bishop said he "might smile upon" a Democratic amendment to remove the exceptions. He left out the president in part to avoid creating the impression Bishop was targeting Joe Biden but also because of "complications" in subjecting presidents to civil liability, Bishop said.

Rep. Tom Tiffany, R-Wis., said he would probably object if the exceptions were removed because those are elected officials subject to the voters. Hageman warned the change would "cripple" presidencies going forward.

The point of the bill is targeting unaccountable actors like former White House aide Andy Slavitt, Tiffany said. Slavitt appears repeatedly in messages obtained through litigation against the Biden administration and congressional investigation, pressuring social media employees to suppress COVID dissent.

Rep. Kelly Armstrong, R-N.D., said he was "not particularly fond of private rights of actions," which just makes "trial lawyers money," and worries about the cascading effects of removing qualified immunity.

But he supports the bill as the best way to ensure "radical transparency" in the bureaucracy at a time when Americans exercise their First Amendment rights on tech platforms that can censor them without liability under Section 230 of the Communications Decency Act.