a model state statute

This bill is designed to protect First Amendment rights. It especially takes aim at federally privatized violations. That is, it targets the federal government's attempts to evade the First Amendment by getting private parties to do its dirty work. 

For example:

• Private universities suppress speech under color of the Department of Education's interpretations of Title IX 

• Private social media companies censor speech in conspiracy with federal officials.

• Private organizations, subsidized by the federal government, work with it to recommend that advertisers blacklist websites for their political views. 

This bill would protect against these privatized assaults on First Amendment rights by allowing courts to decide the constitutional questions and by providing a cause of action for damages. 

Private defendants would be liable if they deprive persons of their First Amendment rights under color of federal law or in conspiracy with the federal government.  (The bill lets defendants avoid damages when they are sued for unexpected interpretations of the First Amendment.)

The bill is a "reverse 1983" because it is modeled on 42 USC §  1983, but with a twist. That federal statute protects Americans from violations of their rights under color of state law. This is a reverse version of Section 1983. It is a state statute protecting Americans from violations of rights under color of federal law or in conspiracy with the federal government.

The bill focuses on First Amendment rights because they are so important and so much at risk. 

Is the bill constitutional? In particular, is it constitutional for federal officers to be liable for damages under state law in state courts? 

• Yes, this is as traditional as the Constitution  itself. 

• Officials were liable for damages at common law, and since the Middle Ages, this was viewed as the crucial mechanism for keeping officials within the bounds of law.  

• In the Founding era and later, state damages actions against federal officers were commonplace. This was the standard remedy for unlawful federal conduct.  

• It remains structurally necessary. State civil remedies are the only reliable remedy for federal speech violations--just as federal civil remedies are the only reliable remedy against state speech violations.

Below, please find the Proposed Statute (in PDF and Word files) and a Section by Section Explanation