[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3493 Introduced in Senate (IS)]

112th CONGRESS
  2d Session
                                S. 3493

 To protect first amendment rights of journalists and internet service 
  providers by preventing States and the United States from allowing 
 meritless lawsuits arising from acts in furtherance of those rights, 
commonly called ``Strategic Lawsuits Against Public Participation'' or 
                  ``SLAPPs'', and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 2, 2012

    Mr. Kyl introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To protect first amendment rights of journalists and internet service 
  providers by preventing States and the United States from allowing 
 meritless lawsuits arising from acts in furtherance of those rights, 
commonly called ``Strategic Lawsuits Against Public Participation'' or 
                  ``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 ``Free Press Act of 2012''.

SEC. 2. SPECIAL MOTION TO DISMISS.

    Part VI of title 28, United States Code, is amended by adding at 
the end the following:

                ``CHAPTER 182--SPECIAL MOTION TO DISMISS

``Sec.
``4201. Special motion to dismiss.
``4202. Stay of discovery.
``4203. Exceptions for governmental litigation and commercial speech.
``4204. Interlocutory appeal.
``4205. Special motion to quash.
``4206. Removal.
``4207. Fees, costs, and sanctions.
``Sec. 4201. Special motion to dismiss
    ``(a) In General.--A representative of the news media (as defined 
in section 552(a)(4) of title 5) may file a special motion to dismiss 
any claim asserted against the representative of the news media in a 
civil action if the claim arises in whole or in part from an oral or 
written statement or other expression that is on a matter of public 
concern or that relates to a public official or figure.
    ``(b) Time Limit.--Unless the court grants an extension, a special 
motion to dismiss under this section shall be filed--
            ``(1) not later than 45 days after the date of service of 
        the claim, if the claim is filed in Federal court; or
            ``(2) not later than 30 days after the date of removal, if 
        the claim is removed to Federal court under section 4206.
    ``(c) Amendments.--If a special motion to dismiss is filed under 
this section as to a claim, the claim may not be amended or 
supplemented until a final and unappealable order is entered denying 
the special motion to dismiss.
    ``(d) Burdens of Proof.--
            ``(1) Moving party.--A representative of the news media 
        filing a special motion to dismiss under this section as to a 
        claim shall have the burden of making a prima facie showing 
        that the claim is a claim described in subsection (a).
            ``(2) Nonmoving party.--If the movant meets the burden 
        described in paragraph (1) for a claim, the party asserting the 
        claim shall bear the burden of proving that the claim is--
                    ``(A) legally sufficient; and
                    ``(B) supported by a prima facie showing, based on 
                admissible evidence, of facts sufficient to sustain a 
                favorable judgment.
            ``(3) Failure to meet burden.--If the nonmoving party fails 
        to meet the burden required for a claim under paragraph (2), 
        the claim shall be dismissed with prejudice.
``Sec. 4202. Stay of discovery
    ``(a) In General.--Except as provided in subsection (b), upon the 
filing of a special motion to dismiss under section 4201, discovery 
proceedings in the action shall be stayed until a final and 
unappealable order is entered on the special motion to dismiss.
    ``(b) Limitation and Exception.--
            ``(1) Limitation.--A stay issued under subsection (a) based 
        on the filing of a special motion to dismiss that only seeks 
        dismissal of a third-party claim or a cross claim asserted by a 
        defendant shall only stay discovery that--
                    ``(A) is requested by the party asserting the 
                third-party claim or cross claim; or
                    ``(B) relates solely to the third-party claim or 
                cross claim.
            ``(2) Exception.--Upon motion and for good cause shown, a 
        court may order that specified discovery be conducted.
``Sec. 4203. Exceptions for governmental litigation and commercial 
              speech
    ``A special motion to dismiss under section 4201 may not be filed 
as to a claim that--
            ``(1) is brought by the Federal Government or the attorney 
        general of a State; or
            ``(2) arises out of a statement offering or promoting the 
        sale of the goods or services of the person making the 
        statement.
``Sec. 4204. Interlocutory appeal
    ``An aggrieved party may take an immediate interlocutory appeal 
from an order granting or denying in whole or in part a special motion 
to dismiss under section 4201.
``Sec. 4205. Special motion to quash
    ``(a) In General.--A person whose personally identifying 
information is sought in connection with a claim that arises in whole 
or in part from an oral or written statement or other expression that 
is on a matter of public concern or that relates to a public official 
or figure, or a person from whom such information is sought in 
connection with such a claim, may file a special motion to quash the 
request or order to produce the information.
    ``(b) Burdens of Proof.--
            ``(1) Moving party.--A person filing a special motion to 
        quash a request or order under this section shall have the 
        burden of making a prima facie showing that the request or 
        order is a request or order described in subsection (a).
            ``(2) Nonmoving party.--If the movant meets the burden 
        described in paragraph (1), the party who made the request or 
        sought the order shall bear the burden of showing that the 
        claim described in subsection (a) is--
                    ``(A) legally sufficient; and
                    ``(B) supported by a prima facie showing, based on 
                admissible evidence, of facts sufficient to sustain a 
                favorable judgment.
            ``(3) Failure to meet burden.--If the nonmoving party fails 
        to meet the burden required for a claim under paragraph (2), 
        the request or order to produce the personally identifying 
        information shall be quashed.
``Sec. 4206. Removal
    ``(a) Special Motion To Dismiss.--
            ``(1) In general.--Except as provided in paragraph (2), a 
        civil action in a State court that raises a claim that 
        colorably appears to be a claim described in section 4201(a) 
        may be removed to the district court of the United States for 
        the district and division embracing the place where the civil 
        action is pending by a party who may file and who seeks to file 
        a special motion to dismiss under section 4201 that asserts a 
        colorable defense based on the Constitution or laws of the 
        United States.
            ``(2) Exception.--Removal may not be requested under 
        paragraph (1) on the basis of a third-party claim or a cross 
        claim asserted by a defendant.
            ``(3) Remand.--If a civil action is removed under paragraph 
        (1), and a final and unappealable order is entered denying the 
        special motion to dismiss filed under section 4201, the court 
        may remand the remaining claims to the State court from which 
        the civil action was removed.
    ``(b) Special Motion To Quash.--
            ``(1) In general.--A proceeding in a State court in which a 
        request or order that colorably appears to be a request or 
        order described in section 4205(a) is sought, issued, or sought 
        to be enforced may be removed to the district court of the 
        United States for the district and division embracing the place 
        where the civil action is pending by a person who may file and 
        who seeks to file a special motion to quash under section 4205 
        that asserts a colorable defense based on the Constitution or 
        laws of the United States.
            ``(2) Limitation.--If removal is requested under paragraph 
        (1) for a proceeding in which a request or order described in 
        section 4205(a) is sought, issued, or sought to be enforced, 
        and there is no basis for removal of the remainder of the civil 
        action in connection with which the proceeding is brought, or 
        no party has requested removal of the remainder of the civil 
        action, only the proceeding in which the request or order 
        described is section 4205(a) is sought, issued, or sought to be 
        enforced may be removed.
``Sec. 4207. Fees, costs, and sanctions
    ``(a) Attorney's Fees and Costs.--Except as provided in subsection 
(c), a court shall award a person who files and prevails on a special 
motion to dismiss under section 4201 or a special motion to quash under 
section 4205 litigation costs, expert witness fees, and reasonable 
attorney's fees.
    ``(b) Frivolous Motions or Petitions.--Except as provided in 
subsection (c)(1), if a court finds that a special motion to dismiss 
under section 4201, a special motion to quash under section 4205, or a 
notice of removal under section 4206 is frivolous or is solely intended 
to cause unnecessary delay, the court may award litigation costs, 
expert witness fees, and reasonable attorney's fees to the party that 
responded to the motion or notice.
    ``(c) Exceptions.--
            ``(1) Governmental entities.--The Federal Government and 
        the government of a State, or political subdivision thereof, 
        may not recover litigation costs, expert witness fees, or 
        attorney's fees under this section.
            ``(2) Novel legal questions.--A court may not award 
        litigation costs, expert witness fees, or attorney's fees under 
        subsection (a) if the grant of the special motion to dismiss 
        under section 4201 or the special motion to quash under section 
        4205 depended on the resolution of a novel or unsettled legal 
        question in favor of the movant.''.

SEC. 3. RELATIONSHIP TO OTHER LAWS.

    Nothing in this Act or the amendments made by this Act shall 
preempt or supersede any Federal or State statutory, constitutional, 
case, or common law that provides the equivalent or greater protection 
for persons engaging in activities protected by the First Amendment to 
the Constitution of the United States.

SEC. 4. TECHNICAL AND CONFORMING AMENDMENTS.

    (a) Table of Chapters.--The table of chapters for part VI of title 
28, United States Code, is amended by adding at the end the following:

``182. Special motion to dismiss............................    4201''.
    (b) Interlocutory Appeals.--Section 1292(a) of title 28, United 
States Code, is amended--
            (1) in paragraph (3), by striking the period at the end and 
        inserting ``; and''; and
            (2) by adding at the end the following:
            ``(4) Interlocutory orders granting or denying in whole or 
        in part special motions to dismiss under section 4201.''.
    (c) Nondischargability of Fees and Costs.--Section 523(a) of title 
11, United States Code, is amended--
            (1) in paragraph (18), by striking ``or'' at the end;
            (2) in paragraph (19), by striking the period at the end 
        and inserting ``; or''; and
            (3) by inserting after paragraph (19) the following:
            ``(20) for litigation costs, expert witness fees, or 
        reasonable attorney's fees awarded by a court under chapter 182 
        of title 28 or under comparable State laws.''.

SEC. 5. EFFECTIVE DATE; APPLICABILITY.

    (a) Effective Date.--Except as provided in subsection (b), this Act 
and the amendments made by this Act shall--
            (1) take effect on the date of enactment of this Act; and
            (2) apply to a claim filed on or after the date of 
        enactment of this Act.
    (b) Claims Filed Before Enactment.--For a claim that was filed 
before and is pending on the date of enactment of this Act--
            (1) this Act and the amendments made by this Act shall 
        apply to the claim if the court with original jurisdiction of 
        the claim has not entered a judgment on the merits as to the 
        claim as of the date of enactment of this Act; and
            (2) for a claim described in paragraph (1), the periods 
        under sections 4201 and 1446 of title 28, United States Code, 
        as amended by this Act, shall begin on the date of enactment of 
        this Act.
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