    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

                  EXAMINING H.R. 2304, THE ``SPEAK FREE ACT''

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON THE CONSTITUTION
                               AND CIVIL JUSTICE

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                       ON

                                   H.R. 2304

                                   __________

                                 JUNE 22, 2016

                                   __________

                               Serial No. 114-82

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Available via the World Wide Web: http://judiciary.house.gov

                                       ______

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                           COMMITTEE ON THE JUDICIARY

                       BOB GOODLATTE, Virginia, Chairman
    F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
        Wisconsin                        JERROLD NADLER, New York
    LAMAR S. SMITH, Texas                ZOE LOFGREN, California
    STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
    DARRELL E. ISSA, California          STEVE COHEN, Tennessee
    J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
    STEVE KING, Iowa                       Georgia
    TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
    LOUIE GOHMERT, Texas                 JUDY CHU, California
    JIM JORDAN, Ohio                     TED DEUTCH, Florida
    TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
    JASON CHAFFETZ, Utah                 KAREN BASS, California
    TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
    TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
    RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
    BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
    DOUG COLLINS, Georgia                SCOTT PETERS, California
    RON DeSANTIS, Florida
    MIMI WALTERS, California
    KEN BUCK, Colorado
    JOHN RATCLIFFE, Texas
    DAVE TROTT, Michigan
    MIKE BISHOP, Michigan

               Shelley Husband, Chief of Staff & General Counsel
            Perry Apelbaum, Minority Staff Director & Chief Counsel
                                     ------

               Subcommittee on the Constitution and Civil Justice

                        TRENT FRANKS, Arizona, Chairman

                      RON DeSANTIS, Florida, Vice-Chairman

    STEVE KING, Iowa                     STEVE COHEN, Tennessee
    LOUIE GOHMERT, Texas                 JERROLD NADLER, New York
    JIM JORDAN, Ohio                     TED DEUTCH, Florida

                         Paul B. Taylor, Chief Counsel
                        James J. Park, Minority Counsel

                                C O N T E N T S

                                  ----------

                                 JUNE 22, 2016

                                                                       Page

                                    THE BILL

    H.R. 2304, the ``SPEAK FREE Act of 2015''........................     3

                               OPENING STATEMENTS

    The Honorable Trent Franks, a Representative in Congress from the
      State of Arizona, and Chairman, Subcommittee on the
      Constitution and Civil Justice.................................     1
    The Honorable Bob Goodlatte, a Representative in Congress from
      the State of Virginia, and Chairman, Committee on the Judiciary    17
    The Honorable Blake Farenthold, a Representative in Congress from
      the State of Texas, and Member, Committee on the Judiciary.....    17

                                   WITNESSES

    Aaron Schur, Senior Director of Litigation, Yelp Inc.
      Oral Testimony.................................................    33
      Prepared Statement.............................................    35
    Bruce D. Brown, Executive Director, The Reporters Committee for
      Freedom of the Press
      Oral Testimony.................................................    41
      Prepared Statement.............................................    43
    Alexander A. Reinert, Professor of Law, Benjamin N. Cardozo
      School of Law
      Oral Testimony.................................................    47
      Prepared Statement.............................................    49
    Laura Lee Prather, Partner, Haynes and Boone, LLP
      Oral Testimony.................................................    66
      Prepared Statement.............................................    68

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable Steve Cohen, a Representative
      in Congress from the State of Tennessee, and Ranking Member,
      Subcommittee on the Constitution and Civil Justice.............    19
    Prepared Statement of the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan, and
      Ranking Member, Committee on the Judiciary.....................    26

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Prepared Statement of Jeremy B. Rosen, Partner, Horvitz & Levy
      LLP............................................................    88
    Prepared Statement of the Motion Picture Association of America,
      Inc............................................................    99
    Response to Questions for the Record from Aaron Schur, Senior
      Director of Litigation, Yelp Inc...............................   104
    Response to Questions for the Record from Bruce D. Brown,
      Executive Director, The Reporters Committee for Freedom of the
      Press..........................................................   109
    Response to Questions for the Record from Alexander A. Reinert,
      Professor of Law, Benjamin N. Cardozo School of Law............   116
                            OFFICIAL HEARING RECORD
          Material Submitted for the Hearing Record but not Reprinted

    Material submitted by the Honorable Trent Franks, a Representative in
        Congress from the State of Arizona, and Chairman, Subcommittee on
        the Constitution and Civil Justice. This material is available at
        the Subcommittee and can also be accessed at:

        http://docs.house.gov/Committee/Calendar/
    ByEvent.aspx?EventID=105106

    Material submitted by the Honorable Steve Cohen, a Representative in
        Congress from the State of Tennessee, and Ranking Member,
        Subcommittee on the Constitution and Civil Justice. This material
        is available at the Subcommittee and can also be accessed at:

        http://docs.house.gov/Committee/Calendar/
    ByEvent.aspx?EventID=105106

    Response to Question for the Record from Laura Lee Prather, Partner,
        Haynes and Boone, LLP. This material is available at the
        Subcommittee and can also be accessed at:

        http://docs.house.gov/Committee/Calendar/
    ByEvent.aspx?EventID=105106

                  EXAMINING H.R. 2304, THE ``SPEAK FREE ACT''

                                  ----------

                            WEDNESDAY, JUNE 22, 2016

                            House of Representatives

                       Subcommittee on the Constitution
                               and Civil Justice

                           Committee on the Judiciary

                                Washington, DC.

        The Subcommittee met, pursuant to call, at 1 p.m., in Room
    210, Cannon House Office Building, the Honorable Trent Franks
    (Chairman of the Subcommittee) presiding.
        Present: Representatives Franks, DeSantis, Goodlatte,
    Gohmert, and Farenthold.
        Staff Present: (Majority) John Coleman, Counsel; Tricia
    White, Clerk; (Minority) James J. Park, Chief Counsel; Matthew
    Morgan, Professional Staff Member; and Veronica Eligan,
    Professional Staff Member.
        Mr. Franks. The Subcommittee on the Constitution and Civil
    Justice will come to order, and without objection, the Chair is
    authorized to declare recesses of the Committee at any time.
        So good afternoon to all of you. The Subcommittee today
    will examine H.R. 2304, the ``SPEAK FREE Act of 2015,'' a
    bipartisan bill designed to protect Americans from meritless
    lawsuits that target their right to free speech, and their
    right to petition their government.
        The First Amendment states that, ``Congress shall make no
    law respecting an establishment of a religion, or prohibiting
    the free exercise thereof, or abridging the freedom of speech,
    or of the press, or of the right of the people to peaceably
    assemble, and to petition the government for redress of
    grievances.''
        Those sacred rights, endowed by our Creator, and recognized
    by our Founding Fathers, place clear limitations on our Federal
    Government, and guarantee freedom of religion, speech,
    peaceable assembly, and the right of Americans to participate
    in their own government.
        History makes clear that when these rights are robustly
    defended, Americans are afforded the opportunity to pursue
    truth, and scientific advancement, to create a culture of
    innovation within our Nation, and to hold American government
    accountable. Without such protections, all other rights are at
    grave risk.
        George Washington recognized this risk when he proclaimed
    to the officers of the Army in 1783 that, ``If men are to be
    precluded from offering their sentiments on a matter which may
    involve the most serious and alarming consequences that can
    invite the consideration of mankind, reason is of no use to us.
    The freedom of speech may be taken away, and dumb and silent,
    we may be led like sheep to the slaughter.''
        Americans today still believe that free speech is
    foundational to freedom itself. According to a 2015 poll
    conducted by the Pew Research Center, 95 percent of Americans
    believe that people should be able to make statements that
    publicly criticize government's policies. A majority of
    Americans, roughly 7 in 10, also considered it very important
    for people to be able to use the Internet without government
    censorship on matters of free speech.
        Despite the fundamental nature of these freedoms, and their
    importance in American life, Americans' ability to exercise
    their First Amendment rights has been threatened by lawsuits
    called strategic lawsuits against public participation, or
    SLAPPs.
        These lawsuits, often brought by private parties, are filed
    against persons in retaliation for speaking out on a public
    issue or controversy. These kinds of lawsuits are solely
    intended to censor and intimidate critics by burdening them
    with expensive litigation in our court system.
        In response, 28 States, the District of Columbia, and one
    U.S. territory have enacted anti-SLAPP laws, with varying
    degrees of protection. One key feature found in most of these
    laws, however, is a special motion to dismiss a claim if it is
    based on an action related to protected speech, or the right to
    petition.
        For example, California, which enacted its anti-SLAPP law
    in 1992, provides a special motion to strike a complaint that
    is filed against a person based on ``an act of furtherance of a
    person's right of petition or free speech under the United
    States or California Constitution, in connection with a public
    issue.''
        With decades of precedent at the State level, this hearing
    is intended to examine what similar protections are needed at
    the Federal level. Mr. Farenthold, of Texas, who is a Member of
    the House Judiciary Committee, introduced H.R. 2304, the
    ``SPEAK FREE Act of 2015,'' on June 1, 2015.
        This legislation, which currently enjoys broad bipartisan
    support, addresses SLAPPs by amending lawsuit rules to allow a
    person against whom a lawsuit is asserted to file a special
    motion to dismiss claims that ``arise from an oral or written
    statement, or other expression, or conduct in furtherance of
    such expression, by the defendant in connection with an
    official proceeding, or about a matter of public concern.''
        Ladies and gentlemen, free speech is a vital component of
    government accountability, public enlightenment, and the
    collective pursuit of truth itself. My hope is that today's
    hearing will shed light on the kinds of SLAPPs filed, as well
    as how this bill would address the problem.
        And I would like to thank our witnesses for being here, and
    I look forward to their testimony. And I would now yield to the
    distinguished gentleman from Virginia, the Chairman of the full
    Committee, Mr. Goodlatte.
        [The bill, H.R. 2304, follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Goodlatte. Well, thank you very much, Mr. Chairman. I
    have a brief opening statement, then I would like to yield to
    the gentleman from Texas, Mr. Farenthold, for an opening
    statement on his part. He is a Member of the full Judiciary
    Committee, but not the Subcommittee, and he has been integrally
    involved in this issue.
        It is clear that our Founders believed that the free
    expression of ideas are integral to the wellbeing of our
    Nation. John Adams, in his writing on the importance of the
    press, for example, states: ``Care has been taken that the art
    of printing should be encouraged, and that it should be easy
    and cheap and safe for any person to communicate his thoughts
    to the public.
        ``And you, Messieurs printers, whatever the tyrants of the
    earth may say of your paper, have done important service to
    your country by your readiness and freedom in publishing the
    speculations of the curious.
        ``The stale, impudent insinuations of slander and sedition
    are so much the more to your honor, for the jaws of power are
    always opened to devour, and her arm is always stretched out,
    if possible, to destroy the freedom of thinking, speaking, and
    writing.''
        In the digital age, we continue to witness our world
    impacted by what one Federal district court judge has called
    ``the most participatory marketplace of mass speech ever
    seen.'' Indeed, the Internet provides a nearly unlimited
    lowcost forum for all kinds of constitutionally-protected
    communication.
        But within the context of lawsuits referred to as strategic
    lawsuits against public participation, or SLAPPs, the cost of
    Internet expression protected by the First Amendment is on the
    rise. Today's hearing, I hope, will examine the most common
    kinds of SLAPPs heard in Federal court, as well as their impact
    on the right to free expression, and the right to petition the
    government.
        I look forward to today's discussion of the ``SPEAK FREE
    Act of 2015,'' and I would like to thank all the witnesses for
    their testimony. And it is now my pleasure to yield to the
    gentleman from Texas, Mr. Farenthold.
        Mr. Farenthold. Thank you, Chairman Goodlatte, and I will
    be brief as well. I think you hit on the most important part
    now. Pretty much everybody with a computer who can make it to a
    Starbucks is a publisher now, and we have the greatest
    marketplace of ideas in the world on the Internet.
        We have got a sharing economy, and an economy based on
    people making decisions about what to purchase online, where to
    visit, where to go to dinner, where to go to lunch, all driven
    by reviews written by folks just like you and me. And we have
    got a group of folks out there who are abusing the legal system
    by saying, ``Look, if they post something bad about us, let's
    sue them, and cost them tens of thousands of dollars to get
    that suit down.''
        It is no good having a site with reviews on it if all the
    reviews are positive, and the people posting negative reviews
    are silenced.
        What this bill does, what the SPEAK FREE Act does, is make
    it easier for those who are victimized by abusive lawsuits to
    silence their voices to end this early on in the litigation
    proceeding, before they rack up thousands or tens of thousands
    of dollars in legal fees.
        I think this is an important piece of legislation to
    protect the First Amendment rights, and carry forth the vision
    of our Founding Fathers that everybody have a voice, and
    everybody be heard with their truthful, honest, good-faith
    reviews. And again, thank you for yielding, and I look forward
    to hearing the testimony. I yield back.
        Mr. Franks. And I thank the gentleman. Without objection,
    other Members' opening statements will be made part of the
    record.
        [The prepared statement of Mr. Cohen follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                      __________

       [The prepared statement of Mr. Conyers follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Franks. Now before I introduce the witnesses, I would
    like to submit several items into the record.
        The first submission includes a letter, a statement, and an
    L.A. Times editorial from the Public Participation Project in
    support of H.R. 2304; a second is a letter from law professors
    in support of the bill.
        Third is a joint letter in support of the bill from several
    Internet-based companies and related businesses.
        Fourth is the written testimony of George Freeman,
    executive director of the Media Law Research Cente.
        Fifth is a statement of David Diesenfeld, who is an
    attorney in California, in support of the bill.
        Sixth is a written statement from Tom O'Brian, Deputy
    General Counsel of Glassdoor Incorporated, in support of the
    bill.
        Seventh is a letter in support of the bill from the
    Internet Association.
        Eighth is a statement from Tracy Rosenberg, executive
    director of the Media Alliance, in support of the bill.
        The ninth and last is a statement from Daniel O'Connor,
    vice president of Public Policy at the Computer and
    Communications Association's support of the bill.
        And without objections, these statements will be entered
    into the record.*
    ---------------------------------------------------------------------------
        *Note: The submitted material is not printed in this hearing record
    but is on file with the Subcommittee, and can also be accessed at:

        http://docs.house.gov/Committee/Calendar/
    ByEvent.aspx?EventID=105106
        So now let me introduce our witnesses. Out first witness is
    Aaron Schur. Mr. Schur is the senior director of litigation at
    Yelp Incorporated.
        Our second witness is Bruce D. Brown. Mr. Brown is the
    executive director of the Reporters Committee for Freedom of
    the Press.
        Our third witness is Alexander Reinert. Mr. Reinert is a
    professor of law at the Benjamin N. Cardozo School of Law in
    New York City.
        Our fourth and final witness is Laura Prather. Ms. Prather
    is a partner in the litigation practice group in the Austin
    office of Haynes and Boone, LLP.
        Each of the witnesses' written statements will be entered
    into the record in its entirety, and I would ask that each
    witness summarize his or her testimony in 5 minutes or less;
    and to help you stay within that time, there is a timing light
    in front of you. The light will switch from green to yellow,
    indicating that you have 1 minute to conclude your testimony.
    When the light turns red, it indicates that the witness' 5
    minutes have expired.
        So before I recognize the witness, it is the tradition of
    the Subcommittee that they be sworn, so if you would please all
    stand to be sworn.
        Do you solemnly swear that the testimony that you are about
    to give will be the truth, the whole truth, and nothing but the
    truth, so help you God? You may be seated. Let the record
    reflect that the witnesses answered in the affirmative.
        And I will now recognize our first witness, Mr. Schur. And,
    Mr. Schur, if you would make sure you turn that microphone on
    before speaking, sir.

     TESTIMONY OF AARON SCHUR, SENIOR DIRECTOR OF LITIGATION, YELP
                                  INC.

        Mr. Schur. Thank you very much, and good afternoon,
    Chairman Franks, and Members of the Subcommittee. Thank you for
    the opportunity to appear before you to discuss the ``SPEAK
    FREE Act of 2015.'' My name is Aaron Schur, and I am the senior
    director for litigation at Yelp, an online platform dedicated
    to connecting people with great local places. In this role, I
    am responsible for Yelp's litigation defense, which in many
    cases involves Yelp being sued solely for its role in allowing
    consumers to speak out about local businesses online, including
    cases where users themselves are named as our codefendants.
        I am also responsible for making sure Yelp appropriately
    evaluates and makes proper objections to subpoenas we receive
    each month from plaintiffs seeking Yelp's users' personal
    information in order to press legal claims, often without
    substance. Additionally, I help our user support team respond
    to users who have been sued, and aid them in finding counsel to
    take up their cases. This is particularly difficult, and
    sometimes impossible, when a defendant has limited or even
    average means.
        People frequently share their opinions and experiences,
    including about local businesses, with their friends and
    family. For an offline example, imagine the following scenario:
    a new restaurant opens up in your neighborhood, and you are
    first in line to try it. After dinner, you leave the restaurant
    happy and full. Your food was great, the staff was responsive,
    and the atmosphere was lively.
        A week later, when your friends ask you where you should go
    to dinner, you tell them about your experience at this
    restaurant, and you recommend that they should go, too. Online,
    this type of feedback is amplified. Your review of a restaurant
    or any number of services or products can now be read by
    hundreds, or even thousands or millions of others.
        Just because users have access to a larger audience online,
    which sites like Yelp enable, it does not mean they lose their
    right to free speech. Yet some businesses use strategic
    lawsuits against public participation, the meritless lawsuits
    that we call SLAPPs, to silence their critics, diminishing
    their ability to exercise their First Amendment rights.
        The SPEAK FREE Act seeks to prevent this, ensuring that
    honest speakers have a way to quickly and economically end
    meritless lawsuits targeting them for what they have said,
    regardless of where they live, or whether the claims at issue
    are considered under Federal or State law.
        More than 100 million reviews have been posted to Yelp, and
    with people writing and reading reviews at an increasing rate,
    about half of these were written over the last 2 years. On
    Yelp, businesses also have the opportunity to publicly or
    directly respond to their customers, analyze consumer feedback,
    and share their own experiences and stories.
        The interaction between business and consumer is a
    laboratory of speech in response to speech, exactly what the
    First Amendment is supposed to protect. But in recent years,
    Yelp has observed an increase in the number of businesses using
    SLAPPs to silence their critics. We also regularly hear from
    users Nationwide who have been targeted for their honest
    opinions about industries across the spectrum, including pet
    sitters, flooring companies, and dentists.
        Here is an example of a threat a user from New York
    reported to us less than a week ago: ``I wrote a review on a
    dentist's page. He sued me for that review for $100,000.
    Although what I wrote was true, I agreed to take that review
    out because I cannot afford the lawsuit fee. The dentist said
    he would stop the lawsuit if I removed the review.''
        While statements of honest opinions and truthful
    experiences are not bases for liability in this country,
    unfortunately we have seen that even the simple threat of a
    lawsuit is a highly effective tool to get users to remove their
    reviews from consumer advocacy sites like Yelp. The specter of
    lopsided litigation against an opponent with better financial
    resources is simply more than the average person is willing to
    take on, especially as winning provides no mechanism to recoup
    legal expenses.
        It is simply easier for the average person to take down his
    or her review, a fact some businesses and their lawyers know
    full well. These businesses face very little risk in bringing
    meritless lawsuits with solely the goal of removing information
    from public view.
        Such actions have a chilling effect on the targeted
    consumer, who is less likely to share his or her experiences in
    the future, and may also ward off other consumers who think
    that the potential cost of speaking their mind is too great. By
    discouraging public discourse, these businesses artificially
    inflate their reputation, leading to a skewed and unbalanced
    marketplace.
        Those people able and willing to defend their cases must
    still bear the burden of substantial legal fees before their
    words are vindicated in court. And there is seldom a mechanism
    to recover those fees, leaving them doubly harmed, first by the
    original poor service received from the business, and second,
    by the financial drain of a lawsuit.
        Thus the fee-shifting component of the SPEAK FREE Act is of
    critical importance, as it deters meritless cases in the first
    instance, incentivizes attorneys to take cases on behalf of
    those who could not otherwise afford a defense, and enables
    those who have the means to defend themselves, an opportunity
    to be made whole when they prevail in court.
        When a business uses a SLAPP to threaten or intimidate a
    consumer, it discourages public discourse and harms the online
    information ecosystem. The benefit of transparency, which is
    what online review platforms provide, is having a more perfect
    feedback loop. Consumers share their experiences with
    businesses, and businesses engage with their consumers in
    efforts to understand what they are doing right, or should
    consider improving.
        In conclusion, Mr. Chairman, Yelp is dedicated to
    protecting free speech rights online. We strongly support the
    SPEAK FREE Act, because it strengthens those protections, and
    look forward to working with you and other Members of this
    Committee as this legislation moves forward. I welcome your
    questions on this important topic.
        [The prepared statement of Mr. Schur follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                    __________

        Mr. Franks. Well, thank you, Mr. Schur. And I now recognize
    our second witness, Mr. Brown. And sir, you would also turn on
    that microphone.

    TESTIMONY OF BRUCE D. BROWN, EXECUTIVE DIRECTOR, THE REPORTERS
                   COMMITTEE FOR FREEDOM OF THE PRESS

        Mr. Brown. Thank you, Mr. Chairman, and Members of this
    Committee. I am Bruce Brown, executive director of the
    Reporters Committee for Freedom of the Press. The Reporters
    Committee has been, since 1970, defending the First Amendment
    rights of journalists and news organizations. We typically get
    involved in SLAPP cases when we do pro bono friend of court or
    amicus briefs in different cases around the country where SLAPP
    statutes are at issue, and I have detailed in my written
    statement some of those cases in recent years.
        I was last before the Judiciary Committee in 2009,
    testifying in support of legislation to counter the threat from
    libel tourism that became known as the SPEECH Act. And I would
    suggest that the SPEECH Act is a good model for what Congress
    can do in the anti-SLAPP area.
        In the libel tourism area, there were concerns that libel
    litigation in foreign courts was being used strategically to
    deter the exercise of First Amendment rights. Congress then
    initiated and enacted a series of reforms to make libel tourism
    less attractive to plaintiffs who are taking advantage of an
    end-run around the First Amendment and due process. It provides
    defendants with a mechanism to seek to declare those judgments
    unenforceable in the United States. It provides for attorneys'
    fees to a defendant who is successful in doing so. And it
    contains a removal provision for enforcement actions brought in
    State court.
        The point was not that every foreign lawsuit arising out of
    SPEECH Activity is inherently meritless, and must be stopped.
    Rather, the SPEECH Act contains provisions to allow the
    plaintiff who has a legitimate case to prevail. And the law did
    not, in its final form, authorize counter-suits, as some had
    initially suggested.
        Rather, by establishing some modest new rights, Congress
    tilted the scales slightly more in the direction of protecting
    speech. And generally speaking, with this new deterrence in
    place, we are hearing a lot less about libel tourism today.
        Congress should take similar action through H.R. 2304, an
    anti-SLAPP legislation, in order to make plaintiffs think twice
    before filing a meritless suit attacking speech on a matter of
    public concern. By creating new substantive rights to protect
    expression, Congress would be doing with domestic cases what it
    did with foreign cases in the SPEECH Act.
        As I noted in my written submission, the availability of
    anti-SLAPP remedies in Federal court diversity cases, along
    with interlocutory review, are two key provisions that would
    strengthen the ability of all speakers, from the kinds of
    publishers and journalists we might work with at the Reporters
    Committee, to all Internet bloggers, community activists, and
    other speakers, to fend off meritless cases while at the same
    time ensuring that cases with merit are not unreasonably
    blocked from moving forward.
        Before coming to the Reporters Committee, I defended a city
    paper reporter sued by Washington Redskins owner Dan Snyder for
    libel. Along with counsel representing the newspaper, we
    believe the newly-enacted, the then-newly-enacted D.C. anti-
    SLAPP bill, and our motion under the new law, led to Mr.
    Snyder's rather abrupt, excuse me, decision to withdraw his
    suit before his allegations could be tested in court and
    subject to the SLAPP back. The deterrent effect of these laws
    can be very significant, even to Mr. Snyder.
        Thank you again for the opportunity to testify, and I look
    forward to answering your questions here, or by supplementing
    the record after the hearing. Thank you.
        [The prepared statement of Mr. Brown follows:]

       [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Franks. Thank you, sir. And I would now recognize our
    third witness, Mr. Reinert. And, sir, make sure that microphone
    is on.

     TESTIMONY OF ALEXANDER A. REINERT, PROFESSOR OF LAW, BENJAMIN
                        N. CARDOZO SCHOOL OF LAW

        Mr. Reinert. It is. Thank you, Chairman Franks, Members of
    the Subcommittee. Good afternoon. I am Alex Reinert; I am a law
    professor at the Benjamin N. Cardozo School of Law. Thank you
    for inviting me to testify here today regarding H.R. 2304, the
    ``SPEAK FREE Act of 2015.''
        Mr. Chairman, I like Yelp; I use it. I am sure James
    Madison would have liked it, too. I cannot imagine he would
    have liked it so much that he would have been willing to throw
    overboard Article III, the Seventh Amendment, and State
    sovereignty on the basis of a potential problem that has been
    supported only by anecdotes, and neither should this
    Subcommittee. And respectfully, the Constitution does not
    permit you to do so.
        So I want to start with the constitutional problems with
    this Act. First, the legislation runs afoul of the Constitution
    on jurisdictional grounds. Section 4206(a) authorizes removal
    from State to Federal court of purely State law claims in the
    absence of diversity of citizenship between the parties.
        There is no beating around the bush with respect to this
    provision. Congress cannot expand district court jurisdiction
    beyond the bounds of Article III, section 2; and Section
    4206(a) does just that.
        Removal of Federal question or diversity claims would be
    permissible, but that is already covered by 28 USC, Section
    1441. So to the extent that 4206(a) expands removal power to
    State law claims between non-diverse parties, it is
    unconstitutional, flatly.
        Section 4206(b) is just as problematic, if not more,
    because it appears to give non-parties the power to remove a
    case from State court to Federal court if that non-party's
    personal identifying information is sought by one of the
    parties.
        Aside from the intrusion on litigant autonomy, let's recall
    that if I am a defendant, and I want to remove a case from
    State court to Federal court, I cannot do it by myself, I need
    the other defendants to agree. That is because we care about
    litigant autonomy.
        So first of all, aside from the intrusion on litigant
    autonomy occasioned by a non-party removing the case, there is
    simply no basis for Federal jurisdiction extending to a non-
    party's objection to particular discovery being sought in State
    court.
        The constitutional difficulties are not just
    jurisdictional, they are substantive as well. The special
    motion to dismiss, in Section 4202(a), contemplates dismissal
    with prejudice, pre-discovery, if the plaintiff cannot meet the
    burden of showing ``that the claim is likely to succeed on the
    merits.''
        I am aware of no other instance in which a plaintiff has
    been asked to demonstrate a likelihood of success on the merits
    in order to survive a motion to dismiss. That is because it is
    unconstitutional. The standard at summary judgment after
    discovery, the well-worn standard on summary judgment after
    discovery, is that a plaintiff need only show that a reasonable
    jury could find for her. Not that a reasonable jury is more
    likely than not to find for her.
        And so the reason that the proposed standard has never been
    used in Federal court to filter a claim at the pre-discovery
    stage is because it is inconsistent with the Seventh Amendment,
    as the District of Minnesota has said recently, and as State
    courts have agreed with respect to State anti-SLAPP laws with
    respect to their own State protections of the right to jury
    trial.
        There also are several difficult constitutional questions
    about whether Congress has the authority to accomplish the
    substantial displacement of State law and authority that would
    accompany H.R. 2304. I have covered these in detail in my
    prepared written remarks, and I will not linger too much on
    them.
        But I will say, in Mr. Brown's written statement, he has
    testified that he supports H.R. 2304 because he thinks that the
    substantive laws of the States that have anti-SLAPP laws should
    be accorded respect in Federal court. That is the opposite of
    what H.R. 2304 does. It does not accord respect to any State
    law. It displaces all State law regarding SLAPPs.
        So let us assume that the constitutional objections can be
    overcome somehow, which I think is doubtful, but possible.
    Still, one must ask whether this displacement of State law
    inherent in H.R. 2304 is appropriate or necessary from a policy
    perspective.
        And I will say, the stated rationale of its proponents is
    that this is merely taking anti-SLAPP laws and putting them at
    the Federal level. This is not a traditional State anti-SLAPP
    law; it covers grounds that are far beyond the original
    definition of a SLAPP suit; and the proponents base their
    support for the legislation on mere anecdotes.
        So with respect, a statute that unconstitutionally expands
    the jurisdiction of the Federal courts, significantly burdens
    and imperils important civil rights and allied litigation,
    imposes new and unprecedented procedures in Federal court, and
    displaces State sovereignty, should not advance based on
    anecdotes alone.
        Once again, I thank you for the opportunity to testify here
    today, and I look forward to your questions.
        [The prepared statement of Mr. Reinert follows:]

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                                   __________

        Mr. Franks. Thank you, sir. And I will now recognize our
    fourth and final witness, Ms. Prather. And, Ms. Prather, if you
    would turn your microphone on.

               TESTIMONY OF LAURA LEE PRATHER, PARTNER,
                         HAYNES AND BOONE, LLP

        Ms. Prather. Mr. Chairman, Members of the Subcommittee, my
    name is Laura Prather. I am a partner with the law firm of
    Haynes and Boone in Austin, Texas, and a board member of the
    Public Participation Project, a nonprofit organization devoted
    to educating the public about SLAPP suits, and advocating for
    the passage of anti-SLAPP laws.
        I am testifying here on behalf of the Public Participation
    Project today, and I thank you for the opportunity to testify
    in support of H.R. 2304, the ``SPEAK FREE Act of 2015.'' I have
    been practicing law for 25 years, and the vast majority of my
    career has been devoted to defending First Amendment rights at
    the courthouse and at the legislature.
        In recent years, I have spent a significant portion of my
    time defending SLAPP victims. Seeing the frequency with which
    SLAPP suits were filed, I also took part in the passage of the
    Texas Citizens Participation Act, their version of an anti-
    SLAPP statute.
        This month marks the fifth anniversary since that passage.
    The Texas experience demonstrates, and consistent with
    congressional experience here, that anti-SLAPP laws are good
    public policy. They help one who may not have means to fight
    meritless lawsuits have a system in place to do so. They
    promote judicial economy by getting rid of meritless claims
    that currently clog up the legal system, and they promote free
    speech rights, civic engagement and public discourse.
        First Amendment rights should not depend on where one
    resides, or the type of claim that is filed against them. There
    are three primary reasons for the need for passage of a Federal
    anti-SLAPP law.
        The first is, the patchwork for State protection that
    currently exist invites forum shopping.
        The second is the fact that there is a circuit split right
    now on whether Federal courts will apply State anti-SLAPP laws
    in diversity cases; and the third is the fact that current
    State anti-SLAPP laws simply do not apply to meritless Federal
    claims. The passage of the Federal anti-SLAPP law would provide
    consistency and predictability in the protection of First
    Amendment rights.
        Let's start with the patchwork. Members of this Committee
    are from a number of different states. Some states have narrow
    anti-SLAPP laws, some have none, some have broad anti-SLAPP
    laws. What happens in those scenarios? It encourages people to
    forum shop, like the Dan Snyder example that Mr. Brown pointed
    out. He filed a lawsuit in New York, against a hedge fund that
    owned the Washington City Paper, after admitting that he had
    never even read the article at issue in the lawsuit. That
    lawsuit was filed in New York to avoid D.C.'s anti-SLAPP law.
        Ultimately, he had to refile in D.C., and then he dismissed
    without there ever being a decision on the application of the
    D.C. law. There are countless examples of cases like that where
    people specifically choose a State in which there is no anti-
    SLAPP law, or a weak anti-SLAPP law, in which to file their
    claims.
        Second, there is now a circuit split with regard to whether
    State anti-SLAPP laws apply in Federal diversity cases. Up
    until recently, every circuit that had decided the issue
    decided that anti-SLAPP laws were substantive, and they should
    be applied to State law claims in diversity cases. The D.C.
    Circuit decided differently. The U.S. Supreme Court earlier
    this year in the Mebo case, denied the petition to review on
    that issue, leaving it uncertain, and leaving us with more
    inconsistency and questions about the application of First
    Amendment rights for our citizens.
        Third issue is the issue of Federal claims. There is
    currently no protection for those creative SLAPP claims that
    come in the form of a Federal cause of action. By definition,
    there is no particular cause of action. It is not limited by
    anything other than the fertile minds of the lawyers and the
    parties to who bring the claims. So what we are seeing now is,
    instead of filing a State law defamation claim, or an invasion
    of privacy claim, what we are seeing is people using very
    creative intellectual property claims in Federal forums so as
    to avoid anti-SLAPP statutes.
        In addition, like SLAPP claims that are not in any one
    particular form or fashion, SLAPP victims also are not any one
    form or fashion as well. You have SLAPP victims that are
    individuals, homeowners that are getting sued by their
    homeowner's associations.
        You have SLAPP victims that are businesses. Better Business
    Bureau gets sued regularly for their reliability reports.
    Politicians get sued for their campaign literature. The media
    gets sued for investigative reporting that they have done where
    they have uncovered significant amounts of Medicaid fraud.
        Whistleblowers get sued very, very frequently; they get
    sued for shining the light on things like--in Texas we had a
    case where a lobbyist-turned-whistleblower shone the light on a
    $110 million in no-bid contracts that were being offered by a
    State official. That led to an FBI investigation, a Public
    Integrity Unit investigation, and a State Auditor's Office
    investigation.
        What ended up happening? The whistleblower got sued for $90
    million by the company that was receiving the no-bid contracts.
    The anti-SLAPP law protected that whistleblower.
        In addition, trial lawyers. Trial lawyers get sued, often
    for statements that they make to the media, or for complaints
    that they file on behalf of their clients. Trial lawyers use
    anti-SLAPP laws to defend against those cases. We had a case in
    Texas involving a media report on Medicaid fraud. Not only was
    the media sued, but the individual plaintiff's lawyer who was
    seeking class-action plaintiffs was sued. Both parties used the
    anti-SLAPP statute to get rid of the lawsuit.
        This is a real problem; it is not anecdotal; it is a real
    problem. This happens on a daily basis. This is a nonpartisan
    issue, it is a both-sides-of-the-aisle issue, and it is one
    that the American Bar Association, academics, domestic violence
    groups, and organizations from the right and the left side of
    the aisle have come forward to support.
        I applaud this Committee for hearing this important matter,
    and I am happy to answer any questions the Committee has.
        [The prepared statement of Ms. Prather follows:]**
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        **Note: This witness statement is not printed in its entirety. The
    complete statement is available at the Subcommittee and can also be
    accessed at:

        http://docs.house.gov/Committee/Calendar/
    ByEvent.aspx?EventID=105106

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                                   __________

        Mr. Franks. I thank all the witnesses for their testimony.
    We will now proceed under the 5 minute rule with questions, and
    I will begin by recognizing myself for 5 minutes.
        And Ms. Prather, I would like to begin with you. You
    mentioned that State laws, State anti-SLAPP laws, do not
    protect against Federal claims. I think, to paraphrase your
    testimony, you said it is limited only to the imagination and
    the fertile minds of the lawyers, which is a pretty broad
    spectrum.
        Can you give us examples of SLAPP claims being filed in
    Federal courts? It is that something that is a ubiquitous
    practice, or is it something that is beginning now, or how is
    that proceeding?
        Ms. Prather. Thank you, Mr. Chairman. It is something that
    is an increasing problem, to tell you the truth. And most of
    the time, not all the time, but most of the time you are
    looking at intellectual property claims.
        Like Lanham Act claims, where people are saying, ``This is
    a false designation of origin, or an unfair competition claim,
    when in reality it is a defamation claim dressed up like Lanham
    Act claim.
        So you have things like, you know, doctors whose theories
    have been debunked, and are suing other doctors for debunking
    those theories, and then suing them under the Lanham Act to
    avoid State anti-SLAPP laws. You have situations like the City
    of Inglewood, where a politician is not terribly enamored by
    the way in which his image has been depicted on YouTube, based
    on video that was from open meetings.
        And because there is, you know, really no claim for
    defamation for accurately portraying videos of an open meeting,
    instead, the claim becomes a copyright claim, an infringement
    claim, because the city owns the copyright to the video of the
    open meeting.
        Similar situations where you have individuals who are of
    substantial means, who may not like still photos that have been
    posted online about them. We have got a case, the Katz v.
    Chevaldina case, in which a Miami Heat minority investor and
    commercial real estate tycoon sued a disgruntled former tenant
    who had put some photos online that had been taken from a news
    article, and he made some comments about the ill treatment that
    they had received.
        Instead of suing that individual for defamation, Katz went
    and purchased the rights to the photos, and then sued for
    copyright infringement instead. This happens fairly frequently.
    Civil RICO is another area in which there has been a
    significant amount of Federal claim to avoid to anti-SLAPP law
    protections.
        Mr. Franks. Well, thank you. Your testimony is a strong
    indication of how fertile sometimes those minds really are. Mr.
    Schur, in your experience, what elements of State anti-SLAPP
    laws act as to deterrents to claims filed primarily to
    intimidate? I mean, I know Yelp users essentially sometimes are
    intimidated related to their reviews. Can you speak to the
    SPEAK FREE Act? Would it have a deterrent effect?
        Mr. Schur. Excuse me, I believe so. I think that any strong
    anti-SLAPP law has essentially four main components, which are
    all present in the SPEAK FREE Act. A sufficiently broad scope
    of protected speech to encompass all the types of claims, which
    is really, as has been mentioned, only limited to the fertile
    mind of the lawyers bringing them. Requirement that the
    plaintiff have facts before they enter the courtroom, to prove
    up the merit of their claims.
        An attorneys' fees provision, so that the person who
    prevails on their anti-SLAPP motion can be made whole following
    those initial proceedings, As well as an interlocutory appeal
    process to make sure that a detrimental decision can be
    corrected on appeal so that the speech is not chilled by the
    continuation of a lawsuit that is meritlessly challenging free
    speech.
        Mr. Franks. Well, thank you. And Mr. Brown, speaking of the
    interlocutory appeal provision in the SPEAK FREE Act, can you
    express your opinion on the importance of that, or the
    significance of it one way or the other?
        Mr. Brown. Sure, of course. Sorry, thank you. Of course.
    The interlocutory appeal provision is crucial for a couple of
    reasons.
        One, as Professor Reinert noted--you know, to me and to
    those of us supporting this legislation--it is very important
    to conceive of the rights that anti-SLAPP laws create as being
    substantive in nature, that they are akin to the immunities
    that are accorded to government officials when they are sued,
    for example, under Section 1983, and those officials have the
    right to take an interlocutory review.
        And the whole point of the interlocutory review provision
    is because these rights are akin to an immunity from suit,
    unless you have the chance to get in front of an appellate
    court prior to trial. Then the right is effectively denied. And
    so the interlocutory provision is essential to the overall
    architecture of the substantive rights.
        And in this area of First Amendment law, there is an
    additional reason why interlocutory review is very crucial. And
    I know this Committee has a submission from George Freeman, who
    is the executive director of the Media Law Research Center. And
    they have for years done a lot of empirical work on what
    happens when adverse decisions from a trial court go up to an
    appeals court for review. And those numbers are rather
    astonishing in this area of First Amendment law.
        The Committee will see that through the decades, close to
    70 percent of these adverse decisions from below get reviewed
    or overturned one way or another on appeal. And so in the First
    Amendment area, there is this additional reason why
    interlocutory appeal is so important, because of the role that
    Federal--excuse me, that appellate court judges have played in
    making sure that First Amendment rights are protected at the
    trial court stage. Thank you.
        Mr. Franks. Well, thank you all very much, and I will now
    yield to the gentleman from Texas, Mr. Gohmert, for 5 minutes.
        Mr. Gohmert. Thank you, Mr. Chairman, and I thank each of
    the witnesses for being here. I know you are not here for the
    pay but--I continue to have concerns anytime it may appear that
    we are usurping State government authority. I think we have got
    diversity, that we have got clear interest.
        But someone that has been very involved in this legislation
    is my friend from Texas, Mr. Farenthold. And I will continue to
    study the bill, and seek out answers to my concern, but I would
    like to yield the rest of my time to Mr. Farenthold.
        Mr. Farenthold. Thank you, Mr. Gohmert, and I want to thank
    our witnesses for being here as well. And Ms. Prather, you are
    a fellow Texan. Can you tell me a little bit about how the law
    has worked in Texas? I mean, what was the timeframe and expense
    involved in defending a lawsuit before and after the anti-SLAPP
    statute was enacted in Texas?
        Ms. Prather. Thank you, Congressman Farenthold. The
    statistics say that an average defamation-type lawsuit in Texas
    would last about 6 years, prior to the passage of anti-SLAPP.
    Now, we are looking at months, rather than years. It is a
    significant difference when you are dealing with a meritless
    claim. Obviously, if there is a meritorious claim, that claim
    goes forward. But if it is a meritless claim, it unburdens the
    judicial system by getting rid of the meritless claims in a
    swift manner.
        Mr. Farenthold. Let's talk about that for a second. Some of
    the critics of this say, ``All right, what do you do when
    somebody has actually come after you with something that is
    untrue?'' Let's say this whole Congress thing does not work out
    for me, and I decide to open Blake's Bistro.
        To me, it is pretty clear that if I sued somebody for
    saying, ``Your restaurant sucks,'' that would be their opinion,
    and it would be protected speech, and that would be a meritless
    lawsuit. But if somebody would come up and say, ``Oh,'' you
    know, ``Blake's served me a chicken-fried steak with a roach
    right in the middle of the cream gravy,'' that is a statement
    of fact; and if it is not true, I still want to have a way to
    deal with that through litigation.
        Can you assure me that this legislation would still protect
    me from my roach liar?
        Ms. Prather. Absolutely. I mean, there is nothing in this
    law, or in this bill, that prevents a meritorious claim from
    going forward. I think a number of the examples that have been
    given on the other side are hypothetical examples. There has
    not been cited a single meritorious case that was not allowed
    to go forward as a result of any sort of an anti-SLAPP law. You
    simply have to get over the initial hurdle, which you should
    have done before you filed the lawsuit, of being able to
    establish the facts that you are likely to be able to succeed
    on the merits.
        Mr. Farenthold. And so let me go back and talk of practical
    application. Because a lot of this is really amplified by the
    online community, and most online services that do reviews--I
    mean, Yelp comes to mind as a leader in that, as does
    Glassdoor, Trip Advisor, even the reviews on Amazon--to me, it
    seems a common feature among those that the opportunity for a
    business that feels like they have been lied about, or has a
    different opinion about a review, to post something themselves
    providing an alternative way for them to be heard as well,
    without going through a lawsuit.
        Yet, you have got big companies that say, ``We do not want
    anything,'' or even small businesses saying, ``We do not want
    anything about us. We are going to go after him.'' Can you talk
    a little bit about what other avenues besides a lawsuit are
    available to somebody who feels like his or her business has
    been abused online?
        Mr. Schur. Sure. I mean, as the Supreme Court said almost
    90 years ago, if there is speech that you do not like, the
    remedy for that is more speech, not enforced silence. At Yelp,
    we are firm believers in that, which is why we allow
    businesses, free of charge, to respond to any review, and that
    appears directly adjacent to the original review.
        We certainly never recommend litigation as a substitute for
    customer service. If you have one or two reviews, probably
    nobody is focusing on it as much as you, the business owner. If
    you have multiple critical reviews, more than that, then maybe
    you need to take a hard look at your business, and see if maybe
    somebody is pointing something out to you. In the case where
    someone does really feel the need to press litigation,
    certainly that is their right, but the case should have merit.
    Any case should have merit before you walk through the
    courtroom door, and the SPEAK FREE Act does nothing to prevent
    cases of merit from moving forward.
        Mr. Farenthold. All right. And finally, Mr. Reinert, I
    didn't want to--oh, I am sorry, I am out of time. If we get a
    second round, I will come back to you; I apologize. And I see I
    am out of time, and I yield back.
        Mr. Franks. I thank the gentleman that is giving the
    Chairman a hint that he would like a second round. And so with
    that, I think we will go ahead and do that. And, Mr. Gohmert,
    did you have questions? I will yield to the gentleman from
    Texas first.
        Mr.Gohmert. Thank you. I would just like to ask one
    question before I yield. You know, I have seen the concern that
    without anti-SLAPP laws in Federal court, it could lead to
    forum shopping. But if forum fits, I mean, is there is anything
    wrong with choosing the best forum for your lawsuit?
        Mr. Reinert. If I could answer that, Mr. Gohmert.
        Mr. Gohmert. Sure.
        Mr. Reinert. Right, that is the principle of federalism;
    that is the principle of concurrent jurisdiction; and that is
    the idea, which is that States get to experiment with the
    substantive laws that they think are best.
        And so when I hear both Ms. Prather and Mr. Brown say that
    this is about Erie--remember, Erie doctrine is about the Rules
    of Decision Act, and what does the Rules of Decision Act say?
    The Rules of Decision Act says State substantive law should
    govern. That is not what this statute does. So, if that is the
    argument, I am confused. I mean, normally when there is a
    circuit split about an Erie question, the Supreme Court
    resolves it.
        Mr. Gohmert. I want to yield the rest of my time to Mr.
    Farenthold. Thank you.
        Mr. Farenthold. Thank you, and I do not want to seem like I
    am ignoring your concerns that you raised, about third parties,
    for instance being able to jump in. But, you know, let's
    suppose I have posted on a semi-anonymous site like, you know,
    Glassdoor. I do not know if you are familiar with this, an
    employee can post reviews of employers anonymously to the
    public, but Glassdoor knows who they are. So if a plaintiff
    were to sue Glassdoor to try to get my personal information,
    should I not have a right to go in there and try to stop that
    from being disclosed? I guess my jumping in immediately
    discloses who I am----
        Mr. Reinert. No, no. Well, thank you, Representative
    Farenthold. I mean, I think that the answer is yes. The
    question is, does Federal court have a jurisdiction over that
    proceeding? And the answer to that question is no.
        I mean, Ms. Prather talked about the ABA supporting
    litigation like this. If you look at the legislation--if you
    look at the legislation the ABA has supported, it had no
    provision that allowed people to remove a case to Federal court
    because their personal identifying information was sought. So--
    --
        Mr. Farenthold. But part of the thought behind this is to
    promote free speech, the First Amendment being actually a
    purely Federal creation. Should I not have access to Federal
    courts to defend my First Amendment right to speech, and is
    this not just a way of granting that access at a potentially
    lower cost, lower threshold?
        Mr. Reinert. Representative Farenthold, whether you should
    or should not, I do not know if it is a question that I am
    equipped to answer. I can say the Constitution does not permit
    jurisdiction over that. The issue can be raised in State court.
    State courts are bound to follow the Federal Constitution.
        If State courts are not respecting the Federal
    Constitution, that is a problem to be resolved through
    traditional means of review. So it is not that you do not have
    a claim; it is the question ``Does the Federal court have
    jurisdiction over it?'' And the answer, flatly, is no.
        Mr. Farenthold. Well, I think I am going to disagree with
    you on that as, you know, a defender of the First Amendment.
    But I certainly will agree to disagree with you. I know better
    than to get into an argument with a law professor. I remember
    quite a few of those from many years ago in law school; you
    never tended to win those, especially when you are a recovering
    attorney now sitting in Congress.
        Ms. Prather, did you want to talk a little bit more about
    why you do think it is appropriate for these to be available in
    Federal court? I will let you argue with the law professor.
        Ms. Prather. And I would like to bring up two points on
    this, and perhaps Mr. Schur can speak to the issue of
    statements being made by Yelp customers that obviously
    transcend State lines. And you know, the fact of the matter is,
    it goes back to First Amendment rights should be equal to all
    citizens, no matter where they live, and no matter what claims
    are filed against them.
        With regard to the ABA's statement as well, I want to also
    address that point that the professor brought up. The ABA
    statement is attached to my written testimony; it speaks for
    itself. The characterization was not correct with regard to the
    ABA's statement.
        But generally speaking, we have got a problem, and you all
    are the only ones that can fix that problem. And the problem
    is, is that you have got people out there that are going around
    and abusing people's First Amendment rights, and doing so in a
    creative fashion by using the Federal court system to avoid
    First Amendment protection.
        Mr. Farenthold. Thank you very much, and I do look forward
    to this legislation moving forward to stop this type of cyber-
    bullying. And I yield back.
        Mr. Franks. Well, I am going to direct my question to Mr.
    Schur, and ask you to elaborate a little bit related to some of
    the constitutional questions. You know, this is the
    Constitution Subcommittee, and sometimes we avail ourselves of
    either trying to read it or defend it. And if you could give us
    your perspective on it, and why you believe that this is
    certainly something that would be constitutionally allowed, and
    beyond that, if it would be appropriate.
        Mr. Schur. Thank you very much, Chairman Franks, for the
    question. Fortunately, we live in a country where the First
    Amendment applies with equal force in every State.
    Unfortunately, we live in a country where SLAPPs can be filed
    in every State.
        Now, in the example that I gave earlier, with a Yelp
    reviewer writing a review of a restaurant or anything, really,
    it is not simply people in that State, or in that community
    that are reading those reviews. I looked up reviews from
    California to find out where I was going to stay here in D.C.,
    where I am going to go to dinner. This is literally interstate
    commerce, if anything else is. So I would be shocked if there
    was no basis for Congress to regulate this particular subject
    matter.
        Mr. Reinert. Mr. Chairman, I hate to breach etiquette, and
    if it is, please forgive me. Can I make an observation?
        Mr. Franks. Sure.
        Mr. Reinert. There are two separate questions here. There
    is the question of Article III jurisdiction, and there is the
    question of Congress's authority. I happen to agree with Mr.
    Schur, that with respect to some of these issues with respect
    to Yelp user reviews, they would fall within interstate
    commerce, and therefore would be within the Congress' ability
    to regulate, but that is separate from Article III. Under
    Article III, Congress cannot expand the jurisdiction of the
    Federal courts. Yes, the First Amendment applies throughout the
    land, and we rely on State courts to apply it and Federal
    courts to apply it. That is the principle of concurrent
    jurisdiction, so.
        Mr. Gohmert. You do not think under Article III, section 2,
    Congress can limit the jurisdiction of Federal courts?
        Mr. Reinert. Congress can certainly limit the jurisdiction
    of Federal courts. They cannot expand it beyond the bounds of
    Article III, section 2, which is what you do when you allow
    removal, either based on the motion to quash, or over non-
    diverse State claims.
        Could you add a provision like the Federal officer defense
    provision, in which you have removal when a Federal officer
    raises a Federal defense? Yeah, maybe you could do that. But
    that is not what this legislation does.
        And there are lots of issues that come up in State court in
    which defendants are raising constitutional issues. We count on
    State courts, we trust State courts--there is a long principle
    in this country of trusting State courts to adjudicate those.
    And the question is ``Why should it be any different here?''
        Mr. Franks. Well, I am going to take Mr. Farenthold's
    advice, and try to demur from debating law professors, and
    refer if I could to Mr. Schur. Would you have any response to
    Mr. Reinert?
        Mr. Schur. Thank you very much, Chairman Franks. Again, we
    are here to talk about free speech, which is guaranteed by the
    Constitution. It is certainly a Federal issue, in that people
    be allowed to speak their views online, and that not be subject
    to meritless cases. So I fully believe that Congress has a
    right, and in fact should be regulating in this area.
        Mr. Franks. Finally, Ms. Prather, your name was taken in
    vain a few times. Did you have sufficient opportunity to
    respond?
        Ms. Prather. I do believe that I have, Mr. Chairman. The
    one thing that I would encourage you all to do is look at the
    fact that there is a patchwork here, and there are holes that
    need to be filled, and Congress is the only vehicle that can
    close the loopholes that exist. And I applaud you all again for
    considering this legislation. Thank you.
        Mr. Franks. Well, on that note, I want to thank you all for
    your very compelling testimony, and this concludes today's
    hearing. And I certainly thank the audience and the witnesses
    for attending.
        And without objection, all Members will have 5 legislative
    days to submit additional written questions for the witnesses,
    or additional materials for the record. And I would thank the
    witnesses and thank the Members, and again, the audience, and
    this hearing is adjourned.
        [Whereupon, at 2 p.m., the Subcommittee was adjourned
    subject to the call of the Chair.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

       Prepared Statement of Jeremy B. Rosen, Partner, Horvitz & Levy LLP

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

     Prepared Statement of the Motion Picture Association of America, Inc.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            Response to Questions for the Record from Aaron Schur,
                    Senior Director of Litigation, Yelp Inc.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

      Response to Questions for the Record from Bruce D. Brown, Executive
           Director, The Reporters Committee for Freedom of the Press

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Response to Questions for the Record from Alexander A. Reinert,
              Professor of Law, Benjamin N. Cardozo School of Law

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                     [all]