Free Speech Reparations? Lawmaker introduces bill making feds personally liable for quashing speech

Rep. Harriet Hageman, R-Wyo., said Wednesday that she is introducing legislation that would allow Americans to file a lawsuit against employees of the federal government for violating their First Amendment rights. 

"I have introduced the First Amendment Accountability Act," Hageman said on the "Just the News, No Noise" TV show.

The legislation would allow federal employees who violate citizens' freedom of religion, press, assembly or speech to be held personally liable for damages, an injunction or attorneys' fees. 

"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," H.R. 162 reads. 

The catch: Immunity for responsible government actors

Currently, Section 1983 of the Civil Rights Act says that every person who, under color of government, subjects any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.

Thus, a deprivation of First Amendment rights — an enumerated right in the Constitution — is often redressed through civil suits. One notable example is Tinker v. DesMoines, where school officials punished students for wearing black armbands in protest of the Vietnam War. Supreme Court Justice Fortas famously said in the 1969 case that "students do not shed their constitutional rights to freedom of speech at the schoolhouse gate. Students had the right to freedom of expression of their views, even controversial views, as long as it remained peaceful."

But there's a catch: the doctrine of "qualified immunity" generally protects state and local officials, including law enforcement officers, from individual liability. According to the National Conference of State Legislatures, in 1967, the Supreme Court recognized qualified immunity as a defense to §1983 claims. 

So, while the DesMoines School District could be held liable, the individual school administrators who issued the unconstitutional orders got off without facing personal liability.

Adding a level of First Amendment protection

First Amendment litigator Lincoln Bandlow, who has represented a wide variety of media entities and individuals in courts nationwide, told Just the News that, "There has always been an opportunity for citizens to sue the government when their free speech rights have been infringed." 

Noting the difference Hageman's proposed bill would bring, Bandlow continued: "But there had always been immunity as to individual government employees. This changes that."

Bandlow added that "This adds a level of First Amendment protection, one would argue, by motivating federal employees not to deprive citizens of their free speech rights, because of the risk of personal liability."

The legislation was introduced in January and was referred to the House Committee on the Judiciary. 

Viewpoint discrimination a recurring problem

Hageman said that many citizens' First Amendment rights were violated in 2020 during the COVID-19 lockdowns. This week, Google admitted that the Biden administration “pressed” them to “remove” content related to the COVID-19 pandemic. The New York Post reported that "Users, including current FBI Deputy Director Dan Bongino, now-White House counterterrorism chief Sebastian Gorka and “War Room” podcast host Steve Bannon had been yanked off the video site in recent years after being flagged for repeated violations of COVID-19” and “elections integrity” policies." 

She said another, more recent, example was when the Federal Emergency Management Agency (FEMA) was accused of not helping Trump supporters during 2024's Hurricane Milton in Florida. Sen. Ashley Moody, R-Fla., accused former FEMA Administrator Deanne Criswell of refusing to give Trump supporters relief during the hurricane. The probe resulted from a case in which Florida sued Criswell and FEMA employee, Marn’i Washington. Washington insisted "she was framed" and both parties agreed to settle. 

"If you remember during the storms last year, FEMA admitted that they were not going to those homes that had Trump signs," Hageman said. "That's clearly viewpoint discrimination." 

Under Hageman's bill, members of those households would be able to sue the individual employee as well as the federal government for deprivation of Civil Rights.