Skip to content

THE FREE AND PROTECTED SPEECH AMENDMENT

A Proposal to Modernize First Amendment Protections for the 21st Century

Revision 1.3

This Amendment may be cited as the Free and Protected Speech Amendment.

PREAMBLE

The First Amendment's protection of political speech from government suppression remains the cornerstone of American democracy. Its core purpose -- shielding dissent, criticism of government, and the free exchange of opinion from official censorship -- is not diminished by this Amendment. That protection is strengthened by placing it on a clearer constitutional footing.

The conditions under which speech operates have changed fundamentally since the founding era. Algorithmic amplification, coordinated disinformation campaigns, and the concentration of communicative power in large platforms create harms the original constitutional framework was not designed to address. A speaker with the capacity to reach tens of millions of persons in seconds bears a fundamentally different relationship to public discourse than a pamphleteer in a town square. The scale of that difference is not merely technological -- it is constitutional.

This Amendment preserves the core of what the First Amendment was designed to protect: political opinion, dissent, and criticism of government receive absolute protection. It establishes, in addition, that demonstrably false statements of fact causing catastrophic harm are not beyond accountability, and that entities with substantial amplification capacity bear commensurate responsibility for the systemic harms they enable. It creates no government censorship authority. All determinations of falsity are made only by courts through adversarial proceedings. Strict procedural safeguards and independent oversight operate as permanent constraints against viewpoint discrimination and government abuse.

Democracy is not required to tolerate coordinated campaigns designed to destroy it through weaponized falsehood. Foreign state actors conducting information warfare operations against the United States receive no protection under this Amendment.

PART I: FOUNDATIONAL PROTECTIONS

Section 1. Core Political Speech Protection

Congress shall make no law abridging the freedom of political speech, including criticism of government officials, public policies, and institutions, or speech concerning matters of public concern. No prior restraint shall be imposed on publication or expression. Opinion, interpretation, and matters of subjective judgment shall not be subject to regulation.

Section 2. Commercial Speech

Commercial speech may be regulated to prevent fraud, deception, or material harm to consumers, subject to rational basis review.

PART II: ACCOUNTABILITY FRAMEWORK

Section 3. Regulation of False Factual Claims

(a) General Standard

Congress may regulate false statements of fact that cause material harm to individuals or the public, provided that:

  1. The statement is demonstrably false as a matter of fact, not opinion or interpretation;
  2. The harm is concrete, specific, and demonstrable;
  3. Regulation employs the least restrictive means available;
  4. The burden of proof lies with the government to establish falsity and harm; and
  5. Determination of falsity shall be made only by courts through adversarial proceedings.

(b) Political Speech Standard

Political speech may be restricted only where the government establishes by clear and convincing evidence that the speech: (i) is specifically directed toward producing harm to democratic processes; (ii) is likely to produce such harm; (iii) would produce severe and substantially irreversible damage to democratic processes; (iv) would produce such harm within a timeframe that does not permit adequate corrective speech or other democratic remedy before the harm is realized; and (v) no less restrictive means is available to prevent the harm. No court may uphold a restriction on political speech absent an affirmative finding on each element.

(c) Strict Liability for Catastrophic Harms

Where false statements of fact cause or create substantial risk of harms exceeding catastrophic thresholds, civil liability shall attach. For institutional speakers and entities meeting the definition of substantial platform in Section 8(b), such liability shall attach regardless of the speaker's knowledge, intent, or belief in the truth of the statement, and no defense of good faith belief, reliance on others, or lack of intent shall apply. For natural persons not meeting the definition of substantial platform, civil liability shall not attach absent proof of at least negligence. Criminal penalties shall require proof of recklessness or willful disregard for truth regardless of the speaker's platform size.

Catastrophic harm thresholds include:

  1. Death or serious bodily harm to persons;
  2. Substantial undermining of democratic electoral processes;
  3. Incitement to mass violence or civil disorder;
  4. Serious threats to national security or public safety; and
  5. Public health crises affecting substantial populations.

The degree of liability shall constitute a hard constitutional floor and shall not exceed what is proportional to:

(1) The reach and platform of the speaker;

(2) The foreseeability of harm at the time of publication; and

(3) The speaker's capacity to verify claims before publication.

(d) Duty to Verify

Persons with substantial platforms or public reach bear a heightened duty to verify factual claims before publication when such claims could foreseeably cause catastrophic harm. The extent of this duty scales with platform size and the severity of potential harm.

Section 4. Platform Responsibility

Congress may require entities that algorithmically amplify speech to substantial audiences to bear responsibility for preventing systematic distribution of demonstrably false information that meets catastrophic harm thresholds. Such responsibility may be discharged through reasonable content moderation systems subject to transparency requirements and appeals processes established by law.

PART III: PROCEDURAL SAFEGUARDS AND ENFORCEMENT

Section 5. Procedural Requirements

All regulation of speech enacted pursuant to this Amendment must:

  1. Be content-neutral in application across viewpoints;
  2. Provide for immediate judicial review with the burden of proof on the government;
  3. Include automatic stays of enforcement pending appellate review;
  4. Prove falsity by clear and convincing evidence;
  5. Demonstrate a causal connection between the speech and the harm alleged; and
  6. Not be applied to suppress dissent or to disadvantage particular political viewpoints.

Section 6. Enforcement and Review

(a) Judicial Initiation

Enforcement authority under this Amendment is vested exclusively in courts of competent jurisdiction through adversarial judicial proceedings. No executive department, administrative agency, or officer of the United States may initiate enforcement outside of such proceedings.

(b) Sunset Provisions

Sunset provisions of no more than five years shall apply to any speech regulation enacted pursuant to this Amendment. Congress may reenact such regulations upon affirmative vote following independent review of enforcement patterns.

(c) Independent Oversight

An independent oversight body shall review enforcement patterns on an annual basis to identify and prevent viewpoint discrimination in the application of speech regulations enacted pursuant to this Amendment.

(d) Preservation of Existing Protections

Nothing in this Amendment shall be construed to diminish existing constitutional or statutory protections for journalists' sources, editorial discretion, or whistleblower disclosures.

Section 10. Legislative Requirements

(a) Mandatory Findings

No law restricting or penalizing speech pursuant to this Amendment shall take effect unless the enrolled bill contains an express section of findings, adopted by affirmative vote of both chambers, establishing with specificity:

  1. That the regulated conduct falls within an authorized category established by Section 3(a) or Section 3(b);
  2. That the restriction or penalty employs the least restrictive means available to address the identified harm;
  3. That the harm addressed is concrete, specific, and demonstrable, and not speculative or inferred from general social conditions;
  4. That the restriction or penalty is content-neutral across viewpoints as defined in Section 1; and
  5. That the restriction or penalty was not designed to disadvantage, and will not in its operation disadvantage, any political party, faction, or ideological position.

The findings required by this Section are subject to judicial review. No court reviewing the constitutionality of any law enacted pursuant to this Amendment shall defer to findings that are conclusory, unsupported by the legislative record, or irreconcilable with the design or operation of the law as enacted.

(b) Criminal Penalties

No law imposing criminal penalties for speech regulated pursuant to this Amendment shall take effect unless passed by a vote of three-fifths of all Members duly elected and qualified in each chamber of Congress, in addition to satisfying the requirements of subsection (a).

PART IV: CONSTRUCTION AND DEFINITIONS

Section 7. Limitation on Rights

Rights enumerated herein shall not be construed to protect speech deliberately designed to undermine democratic institutions through systematic campaigns of coordinated disinformation, nor to shield foreign state actors from accountability for information warfare operations conducted against the United States.

Section 8. Definitions

For purposes of this Amendment:

(a) Demonstrably False

"Demonstrably false" means capable of objective verification and proven false by a preponderance of credible evidence through adversarial judicial proceedings.

(b) Substantial Platform

"Substantial platform" means the capacity to reach more than 100,000 persons directly or through algorithmic amplification within a continuous 30-day period.

(c) Material Harm

"Material harm" means legally cognizable injury to person, property, democratic processes, or public safety.

(d) Political Speech

"Political speech" means expression relating to government, public officials, electoral processes, or matters of public concern.

(e) Democratic Processes

"Democratic processes" means the institutions, procedures, and mechanisms through which the people of the United States exercise self-governance, including electoral processes, legislative proceedings, judicial functions, and the operation of civil institutions established by law.

(f) Substantially Irreversible

Harm to democratic processes is "substantially irreversible" where no subsequent corrective speech, legal remedy, or democratic process can restore the affected function to a materially equivalent condition within a reasonable timeframe following the harm.

(g) Algorithmic Amplification

"Algorithmic Amplification" means the automated distribution, promotion, or surfacing of content to audiences based on computational signals including engagement metrics, behavioral data, or predictive modeling, without individualized human editorial selection of the specific content distributed. The term does not include the selection, arrangement, or presentation of content by human editors exercising independent editorial judgment, regardless of the platform size of the entity employing such editors.

(h) Institutional Speaker

"Institutional Speaker" means any corporation, partnership, limited liability company, nonprofit organization, association, or other entity organized under law, regardless of whether such entity meets the definition of substantial platform in Section 8(b).

Section 9. Relationship to State Law

This Amendment establishes minimum constitutional protections for speakers. Any provision of state law that affords speakers greater protection than the corresponding provision of this Amendment requires shall not be preempted. Any provision of state law that imposes liability standards less protective of speakers than the standard established by the corresponding provision of this Amendment is preempted to the extent of the conflict. Whether a state law provision affords greater or lesser protection than this Amendment shall be evaluated provision by provision.

Revision history available in the raw file.

Last revised April 2026

Prepared by Albert Ramos for The American Policy Architecture Institute