The Freedom of Expression Act: A Modest Proposal to Protect Our Rights
By Joseph McGraw
There are two facts that should alarm every American regardless of political persuasion: (1) The Department of Justice has now dismissed Austin Franco’s administrative civil rights complaint against Leo Terrell, the Trump Administration’s so-called Anti-Semitism Czar (see FEF article dated August 9, 2026); and (2) there is a yawning gap in our legal system that leaves Mr. Franco with no other legal remedy. Imagine for a moment you’ve said something controversial. Maybe you criticized a foreign government with a powerful lobby. Perhaps you refused to work for well-connected individuals. Possibly you had no idea that what you said was contentious at all. Now that you’ve said it, a combined onslaught of harassment and doxxing encompasses your whole identity. You thought you had rights in this country. You thought the First Amendment protected you. Just when you’ve had a chance to breathe, another actor comes on the scene: an official high in the federal government. He too decides to condemn your speech and pressures future employers to blacklist you. Surely there must be a legal remedy to fight back against this retaliation by the federal government for your free expression, right?
The answer is an unsettling “no,” except for injunctive relief— a remedy that can only halt the conduct, not undo the harm. Let the reader understand: there is at present no avenue to sue federal officials for their attacks on your First Amendment rights. The U.S. Supreme Court recognizes something known as a Bivens action for this purpose, but the Court recently hollowed out that avenue in its 2022 Egbert v. Boule decision, leaving no path to sue federal officials for violations of our First Amendment rights. Every subsequent attempt to re-establish a Bivens action for free speech has failed. The Federal Tort Claims Act is also of little help because it does not cover Constitutional torts. So what can the offended citizen do if a prominent member of the federal government punishes him for his First Amendment expression? As Austin Franco (with FEF’s help) has done, you could report the official to the Department of Justice’s Civil Rights Division; but, as has just happened to Mr. Franco, you will be told by the DOJ in aqueous, limp-wristed terms, “We are not able to directly act on your complaint.”
In a moment of harsh candor, an official once told Rob Rundo, founder of the Active Club movement, “You have the rights you can enforce.” See FEF article dated July 22, 2026. In our current political order, the First Amendment is unenforceable insofar as it relates to agents of the federal government. If the official’s acrid maxim is true, the First Amendment functionally does not exist when the federal government is the one that violates it. This inevitable conclusion should concern every American. In a society founded on the value of dissent, open debate, and freedom of expression, there can be no greater threat to the continued liberty of its members.
What then shall we do? Longstanding supporters of the Free Expression Foundation’s activities will be familiar with a parallel solution: 42 U.S.C. § 1983. This statute created a legal remedy against State (e.g., New York or California) actors for the same Constitutional violations that are currently untouchable when perpetrated by federal officials. If Congress saw fit to protect citizens’ rights from a given State’s tyranny, why does the principle stop there? The answer is multi-faceted and could fill shelves with books. The solution, by contrast, is quite simple. Congress must pass into law the following model statute, substantively modeled on § 1983, to hold federal bad actors liable just as State bad actors are:
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The Freedom of Expression Act
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of the federal government, subjects, or causes to be subjected, any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the First Amendment to the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
The provisions of this Act shall be interpreted consistently with judicial decisions construing 42 U.S.C. § 1983 except as provided by subsection (c).
A person may bring an action under this chapter in state or federal court seeking relief violations of First Amendment rights and may recover or obtain the following remedies:
Treble damages;
Reasonable attorney’s fees;
Punitive damages;
An injunction against unconstitutional conduct;
Any other relief which the court deems proper.
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Our current situation is grave but not unsalvageable. There is a clear path forward, with a substantial body of interpretive case law from 150 years of § 1983 precedents available for guidance. The only missing piece is Congressional will to once again guarantee the rights of free expression to the people. Of what use is the First Amendment if the necessary means of enforcement are lacking? Where will the whims of federal officials alight? Today it’s Austin Franco’s refusal to work for an employer. It may soon be your own speech. If your interests fail to align with the caprices of unchecked federal bureaucrats, your only means of redress could be an idea that is not yet enacted into law but should be: The Freedom of Expression Act.
