Soon after Democrats secured an incoming majority in Congress, they made their intentions clear: ambitious legislation. “We’re going to get out of the gate fast,” Democratic House leader Hakeem Jeffries said.
Congressional Progressive Caucus Chair Greg Casar plans on “passing bold legislation that people called for, every single week, off of the floor of the House and the Senate.” Said Michigan’s Sen.-elect Abdul El-Sayed: “I want us to get to the work of passing legislation.”
There are also signals that the new Congress is willing to work with Republicans to get things done. In his bid for speaker, Jeffries promised to “find bipartisan common ground whenever and wherever possible.”
While there are numerous issues for the new Congress to address, from trade policy to foreign wars, one issue lawmakers have found common ground on in the past is protecting freedom of speech. This divided government presents a unique opportunity to introduce new legislation and move stalled bills over the finish line, all focused on strengthening our First Amendment protections.
To the extent that the new Congress cares about protecting this fundamental freedom, here are four bills it could propose on Day 1 that would immediately give Americans the breathing room to speak openly and freely and reduce the chance of ruinous litigation or government threats.
1. Codify New York Times v. Sullivan and Its Progeny
Few Supreme Court First Amendment opinions have sparked more debate than New York Times v. Sullivan, the 1964 ruling that requires public officials to meet the high bar of proving actual malice in defamation cases.
As Justice William Brennan wrote in that opinion, the Court adopted the standard “against a background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The Supreme Court has extended that protection to lawsuits involving claims by public figures, but private figures are not required to establish actual malice to establish liability.
Sullivan has allowed news organizations and others to critically investigate and comment on powerful figures without fearing existential defamation rulings. As Justice Lewis Powell would later explain: “The First Amendment requires that we protect some falsehood in order to protect speech that matters.”
Sullivan’s critics argue that it is not based on the First Amendment’s original meaning and that it encourages irresponsible journalism. In 2019, Justice Clarence Thomas called for the Court to revisit Sullivan, arguing that it has no basis in the original meaning of the First Amendment. In 2021, Justice Neil Gorsuch joined Thomas’s call, arguing that “over time the actual malice standard has evolved from a high bar to recovery into an effective immunity from liability.”
No other current justices have joined their call to revisit Sullivan, so the precedent is safe for now. But it is easy to envision that landscape changing if new justices join the Court or current justices change their mind.
For that reason, in a 2022 article, Matthew L. Schafer and I proposed the Freedom of Speech and Press Act, which would codify Sullivan’s actual malice standard into statute and require it in all defamation litigation relating to matters of public concern. The bill would adopt other safeguards for defamation, many of which stem from the progeny of Sullivan. They include:
Placing the burden of proving falsity on the plaintiff
Clarifying that statements of pure opinion cannot be the basis of defamation lawsuits
Limiting punitive damages to three times the total compensatory damages in defamation litigation relating to matters of public concern
Prohibiting state prosecutions for criminal libel
In an ideal world, such legislation would be unnecessary because such protections should be ingrained in First Amendment jurisprudence. But as we have seen in recent years, the Supreme Court can quickly alter what was once viewed as settled precedent. While Congress is also free to change or repeal statutes in the future, the Freedom of Speech and Press Act would provide a backstop and reduce the likelihood that vital freedom-of-the-press protections would vanish at the whims of a few judges.
2. Pass A Federal Anti-SLAPP Law
Defamation lawsuits and other litigation stemming from speech might not ultimately succeed. But success isn’t often the goal for plaintiffs in these cases. They want to punish the defendants for investigating and criticizing them, and discourage others from doing so. Both the litigation process and the high cost of discovery accomplish their goal, even if they don’t ultimately win the case.
Such cases are known as Strategic Lawsuits Against Public Participation (SLAPP), and they are widely considered to be barriers to freedom of speech. For that reason, 40 states and the District of Columbia have passed anti-SLAPP laws, according to the Reporters Committee for Freedom of the Press, which provided this overview:
“These laws typically provide critical protections to the news media—allowing defendants to secure a quick dismissal before the costly discovery process begins, permitting defendants who win their anti-SLAPP motions to recover attorney’s fees and costs, automatically staying discovery once the defendant has filed an anti-SLAPP motion, and allowing defendants to immediately appeal a trial court’s denial of an anti-SLAPP motion.”
The laws apply to all speakers — not just the media — and their scope and strength vary by state. They are particularly valuable because defendants can often bring anti-SLAPP motions early in litigation, reducing the costs of meritless lawsuits. And even those costs can be recovered due to the attorney’s fees provisions in many of the laws.
Unfortunately, Congress has failed to pass a federal anti-SLAPP law, and the federal courts are divided about whether state anti-SLAPP laws apply in federal court litigation where state law is applied. This means that even if a defendant would have anti-SLAPP protections in state court, they might not have them available in federal court in the same state.
For decades, members of both parties have aimed to fix this problem by proposing a federal anti-SLAPP law. A recent example is the December 2024 Free Speech Protection Act, proposed by Sen. Ron Wyden, D-Ore., and Reps. Jamie Raskin, D-Md. and Kevin Kiley, R-Calif. The bill would provide a mechanism to dismiss weak lawsuits early, freeze discovery, and award attorneys’ fees to successful defendants.
“Under this legislation, powerful interests will no longer be able to launch frivolous lawsuits intended to bankrupt everyday Americans,” Kiley said at the time.
Given the historical bipartisan support for a federal anti-SLAPP law, 2027 is an ideal time for a renewed attempt that might even secure a veto-proof majority.
3. Pass The Bipartisan JAWBONE Act
Members of both parties are concerned about government officials exerting pressure on social media platforms, broadcasters, and artificial intelligence companies to censor the speech of Americans. That practice — known as jawboning — has the same ultimate impact as direct government speech regulation.
In 2024, the Supreme Court made clear its distaste for jawboning, writing in a unanimous opinion:
“A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the State to punish or suppress disfavored expression.”
Although jawboning raises serious First Amendment issues, it is often difficult to litigate because existing law provides few viable causes of action for censored plaintiffs. Moreover, evidence of jawboning might only materialize after discovery, and plaintiffs’ lawsuits could be dismissed before they have the opportunity to gather evidence.
To address these shortcomings, Wyden and Sen. Ted Cruz, R-Tex., this year introduced the Justice Against Weaponized Bureaucratic Overreach to Networked Expression Act (“JAWBONE Act”), which prohibits federal agencies or employees from “coercing” broadcasters, AI providers, or online platforms into removing or changing speech or suspending or terminating individual users.
According to Cruz, the bill is essential for “[h]olding the government accountable and giving Americans the tools to fight back.” The legislation “ensures the First Amendment is protected, not undermined,” he continued.
The JAWBONE Act explicitly provides plaintiffs with a private right of action against a federal agency or employee who coerced or attempted to coerce an intermediary to remove their speech. And to address the unavailability of evidence when jawboning may have occurred, the bill would give judges discretion to allow early, limited discovery before ruling on a motion to dismiss.
The bill also would require federal agencies to report descriptions of covered communications with intermediaries to a centralized, publicly available repository, providing transparency to potential jawboning.
In September, the Senate Commerce Committee advanced the amended JAWBONE Act, in a bipartisan 18-10 vote, but it has not received a floor vote. Three Democrats – Brian Schatz, Ed Markey, and Jacky Rosen – joined their Republican colleagues in voting for the bill.
Because members of both parties have expressed deep concerns in recent years about the executive branch exerting pressure on intermediaries to censor speech, the JAWBONE Act should be a key priority for the new Congress.
4. Pass A Reporter’s Shield Law
For well over a decade, members of both parties have proposed federal legislation to prevent journalists from being forced to disclose confidential sources in civil litigation and federal criminal investigations. The issue has taken new importance in light of recent federal attempts to investigate journalists’ sources.
Most states have shield laws that limit litigants’ and the government’s ability to require reporters to provide information about confidential sources, but Congress has failed to pass a similar law at the federal level. Most federal circuit courts recognize some level of protection for journalists, but those safeguards often are weak and inconsistent. (The Reporters Committee has an excellent summary of these reporters’ privilege protections here).
Fortunately, a bipartisan model for such federal protections already exists. In 2023, Sens. Wyden, D-Ore., Mike Lee, R-Utah, and Dick Durbin, D-Ill. along with Reps. Raskin, D-Md. and Kiley, R-Calif introduced the Protect Reporters from Exploitative State Spying (PRESS) Act.
The bill would protect journalists from being compelled to disclose their sources in cases arising under federal law except for narrow circumstances involving terrorism or prevention of a threat of bodily harm, death, or imminent violence. The bill would also require journalists to be notified if a service provider, such as an email or telecom company, is being compelled to disclose confidential source information.
“Not only is this legislation imperative to shield journalists from unnecessary government surveillance, but it is also necessary to protect the public’s right to access information, hold their elected officials accountable, and actively participate in representative government,” Lee said when the bill was introduced.
The PRESS Act had sufficient support to pass the House by voice vote, but it stalled in the Senate. Given the legislation’s bipartisan support, the new Congress has a good opportunity to pass a reform that would provide journalists with much-needed source protection.
Jeff Kosseff is a Non-Resident Senior Fellow at The Future of Free Speech and the co-author (with Jacob Mchangama) of the new book The Future of Free Speech: Reversing the Global Decline of Democracy’s Most Essential Freedom (Johns Hopkins University Press, 2026).