[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
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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''
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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:]
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__________
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:]
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__________
[The prepared statement of Mr. Conyers follows:]
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__________
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.*
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*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:]
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__________
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
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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
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[all]