[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4364 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 4364

   To protect first amendment rights of petition and free speech by 
    preventing States and the United States from allowing meritless 
  lawsuits arising from acts in furtherance of those rights, commonly 
               called ``SLAPPs'', and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           December 16, 2009

  Mr. Cohen introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To protect first amendment rights of petition and free speech by 
    preventing States and the United States from allowing meritless 
  lawsuits arising from acts in furtherance of those rights, commonly 
               called ``SLAPPs'', and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Citizen Participation Act of 2009''.

SEC. 2. FINDINGS.

    The Congress finds and declares that--
            (1) the framers of our Constitution, recognizing 
        participation in government and freedom of speech as 
        inalienable rights essential to the survival of democracy, 
        secured their protection through the First Amendment to the 
        United States Constitution;
            (2) the communications, information, opinions, reports, 
        testimony, claims and arguments that individuals, organizations 
        and businesses provide to the government are essential to wise 
        government decisions and public policy, the public health, 
        safety, and welfare, effective law enforcement, the efficient 
        operation of government programs, the credibility and trust 
        afforded government, and the continuation of America's 
        representative democracy;
            (3) civil lawsuits and counterclaims, often claiming 
        millions of dollars in damages, have been and are being filed 
        against thousands of individuals, organizations, and businesses 
        based upon their valid exercise of the rights to petition or 
        free speech, including seeking relief, influencing action, 
        informing, communicating, and otherwise participating with 
        government, the electorate, or in matters of public interest;
            (4) such lawsuits, called Strategic Lawsuits Against Public 
        Participation or SLAPPs, are often ultimately dismissed as 
        groundless or unconstitutional, but not before the defendants 
        are put to great expense, harassment, and interruption of their 
        productive activities;
            (5) it is in the public interest for individuals, 
        organizations and businesses to participate in matters of 
        public concern and provide information to public entities and 
        other citizens on public issues that affect them without fear 
        of reprisal through abuse of the judicial process;
            (6) the threat of financial liability, litigation costs, 
        destruction of one's business, loss of one's home, and other 
        personal losses from groundless lawsuits seriously impacts 
        government, interstate commerce, and individual rights by 
        significantly chilling public participation in government, 
        public issues, and in voluntary service;
            (7) SLAPPs are an abuse of the judicial process that waste 
        judicial resources and clog the already over-burdened court 
        dockets;
            (8) while some courts and State legislatures have 
        recognized and discouraged SLAPPs, protection against SLAPPs 
        has not been uniform or comprehensive; and
            (9) some SLAPP victims are deprived of the relief to which 
        they are entitled because the current bankruptcy law allows for 
        the discharge of fees, costs and damages awarded against a 
        party for maintaining a SLAPP.

SEC. 3. IMMUNITY FOR PETITION ACTIVITY.

    (a) Immunity.--Any act of petitioning the government made without 
knowledge of falsity or reckless disregard of falsity shall be immune 
from civil liability.
    (b) Burden and Standard of Proof.--A plaintiff must prove knowledge 
of falsity or reckless disregard of falsity by clear and convincing 
evidence.

SEC. 4. PROTECTION FOR PETITION AND SPEECH ACTIVITY.

    Any act in furtherance of the constitutional right of petition or 
free speech shall be entitled to the procedural protections provided in 
this Act.

SEC. 5. SPECIAL MOTION TO DISMISS.

    (a) In General.--A party may file a special motion to dismiss any 
claim arising from an act or alleged act in furtherance of the 
constitutional right of petition or free speech within 45 days after 
service of the claim if the claim was filed in Federal court or, if the 
claim was removed to Federal court pursuant to section 6 of this Act, 
within 15 days after removal.
    (b) Burdens of the Parties.--A party filing a special motion to 
dismiss under this Act has the initial burden of making a prima facie 
showing that the claim at issue arises from an act in furtherance of 
the constitutional right of petition or free speech. If the moving 
party meets this burden, the burden shifts to the responding party to 
demonstrate that the claim is both legally sufficient and supported by 
a sufficient prima facie showing of facts to sustain a favorable 
judgment.
    (c) Stay of Discovery.--Upon the filing of a special motion to 
dismiss, discovery proceedings in the action shall be stayed until 
notice of entry of an order disposing of the motion, except that the 
court, on noticed motion and for good cause shown, may order that 
specified discovery be conducted.
    (d) Expedited Hearing.--The court shall hold an expedited hearing 
on the special motion to dismiss, and issue a ruling as soon as 
practicable after the hearing. The parties may submit the pleadings and 
affidavits stating the facts upon which the liability or defense is 
based. The court shall explain the reasons for its grant or denial of 
the motion in a statement for the record. If the special motion to 
dismiss is granted, dismissal shall be with prejudice.
    (e) Immediate Appeal.--The defendant shall have a right of 
immediate appeal from a district court order denying a special motion 
to dismiss in whole or in part.

SEC. 6. FEDERAL REMOVAL JURISDICTION.

    (a) In General.--A civil action commenced in a State court against 
any person who asserts as a defense the immunity provided for in 
section 3 of this Act, or asserts that the action arises from an act in 
furtherance of the constitutional right of petition or free speech, may 
be removed by the defendant to the district court of the United States 
for the district and division embracing the place wherein it is 
pending.
    (b) Remand of Remaining Claims.--A court exercising jurisdiction 
under this section shall remand any claims against which the special 
motion to dismiss has been denied, as well as any remaining claims 
against which a special motion to dismiss was not brought, to the State 
court from which it was removed.
    (c) Timing.--A court exercising jurisdiction under this section 
shall remand an action if a special motion to dismiss is not filed 
within 15 days after removal.

SEC. 7. SPECIAL MOTION TO QUASH.

    (a) In General.--A person whose personally identifying information 
is sought in connection with an action pending in Federal court arising 
from an act in furtherance of the constitutional right of petition or 
free speech may make a special motion to quash the discovery order, 
request or subpoena.
    (b) Burdens of the Parties.--The person bringing a special motion 
to quash under this section must make a prima facie showing that the 
underlying claim arises from an act in furtherance of the 
constitutional right of petition or free speech. If this burden is met, 
the burden shifts to the plaintiff in the underlying action to 
demonstrate that the underlying claim is both legally sufficient and 
supported by a sufficient prima facie showing of facts to sustain a 
favorable judgment. This standard shall apply only to a special motion 
to quash brought under this section.

SEC. 8. FEES AND COSTS.

    (a) Attorney's Fees.--The court shall award a moving party who 
prevails on a special motion to dismiss or quash the costs of 
litigation, including a reasonable attorney's fee.
    (b) Frivolous Motions and Removal.--If the court finds that a 
special motion to dismiss, special motion to quash, or the removal of a 
claim under this Act is frivolous or is solely intended to cause 
unnecessary delay, the court may award a reasonable attorney's fees and 
costs to the responding party.
    (c) Government Entities.--A government entity may not recover fees 
pursuant to this section.

SEC. 9. BANKRUPTCY NONDISCHARGABILITY OF FEES AND COSTS.

    Fees or costs awarded against a party by a court for the 
prosecution of any claim finally dismissed pursuant to this Act, or any 
subpoena or discovery order quashed pursuant to this Act, or any claim 
finally dismissed pursuant to a State anti-SLAPP law, shall not be 
dischargeable in bankruptcy under section 1328 or section 523 of title 
11, United States Code.

SEC. 10. EXEMPTIONS.

    (a) Public Enforcement.--Sections 4 through 8 of this Act shall not 
be available in any action brought solely on behalf of the public or 
solely to enforce an important right affecting the public interest.
    (b) Commercial Speech.--This Act shall not apply to any claim for 
relief brought against a person primarily engaged in the business of 
selling or leasing goods or services, if the statement or conduct from 
which the claim arises is a representation of fact made for the purpose 
of promoting, securing or completing sales or leases of, or commercial 
transactions in, the person's goods or services, and the intended 
audience is an actual or potential buyer or customer.
    (c) ``SLAPP-back'' Suits.--This Act shall not be available to 
dismiss any action or claim arising from a claim that has been 
dismissed pursuant to this Act or to a State anti-SLAPP law.

SEC. 11. DEFINITIONS.

    In this Act:
            (1) Act in furtherance of the right of free speech.--The 
        term ``act in furtherance of the right of free speech'' 
        includes but is not limited to--
                    (A) any written or oral statement made in 
                connection with an issue under consideration or review 
                by a legislative, executive, or judicial body, or any 
                other official proceeding authorized by law;
                    (B) any written or oral statement made in a place 
                open to the public or a public forum in connection with 
                an issue of public interest; or
                    (C) any other conduct in furtherance of the 
                exercise of the constitutional right of petition or the 
                constitutional right of free speech in connection with 
                an issue of public interest.
            (2) Act of petitioning the government.--The term ``act of 
        petitioning the government'' includes but is not limited to any 
        written or oral statement--
                    (A) made or submitted before a legislative, 
                executive, or judicial body, or any other official 
                proceeding authorized by law; or
                    (B) any written or oral statement encouraging a 
                statement before a legislative, executive, or judicial 
                body, or any other official proceeding authorized by 
                law.
            (3) Claim.--The term ``claim'' includes any civil lawsuit, 
        claim, complaint, cause of action, cross-claim, counterclaim, 
        or other judicial pleading or filing requesting relief.
            (4) Government entity.--The term ``government entity'' 
        includes the United States, a branch, department, agency, 
        State, or subdivision of a State, or other public authority.
            (5) Issue of public interest.--The term ``issue of public 
        interest'' includes an issue related to health or safety; 
        environmental, economic or community well-being; the 
        government; a public figure; or a good, product or service in 
        the market place. ``Issue of public interest'' shall not be 
        construed to include private interests, such as statements 
        directed primarily toward protecting the speaker's business 
        interests rather than toward commenting on or sharing 
        information about a matter of public significance.
            (6) Personally identifying information.--The term 
        ``personally identifying information'' means first and last 
        name or last name only; home or other physical address 
        including temporary shelter or housing and including a street 
        name or ZIP Code; full date of birth; email address or other 
        online contact information; telephone number; social security 
        number; Internet protocol address or host name that identifies 
        an individual, or any other information that would serve to 
        identify an individual.
            (7) State.--The term ``State'' means each of the several 
        States, the District of Columbia, and any commonwealth, 
        territory, or possession of the United States.

SEC. 12. CONSTRUCTION.

    This Act shall be liberally construed to effectuate its findings 
and purposes fully, except that the exemptions shall be construed 
narrowly.

SEC. 13. RELATIONSHIP TO OTHER LAWS.

    Nothing in this Act shall preempt or supersede any Federal, State, 
constitutional, case or common law that provides the equivalent or 
greater protection for persons engaging in activities in furtherance of 
the rights of petition or free speech.

SEC. 14. SEVERABILITY.

    If any provision of this Act or the application of any provision of 
this Act to any person or circumstance is held invalid, the application 
of such provision to other persons or circumstances and the remainder 
of this Act shall not be affected thereby.

SEC. 15. EFFECTIVE DATE.

    This Act shall become effective upon enactment.
                                 <all>