II 112th CONGRESS 2d Session S. 3493 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.

1.

Short title

This Act may be cited as the Free Press Act of 2012.

2.

Special motion to dismiss

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

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.

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.

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.

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.

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.

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.

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.

.

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.

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 dismiss4201 . (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. .

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.