I
114th CONGRESS
1st Session
H. R. 2304
IN THE HOUSE OF REPRESENTATIVES
May 13, 2015
Mr. Farenthold (for himself, Ms. Eshoo, Mr. Issa, Mr. Franks of Arizona, and Mr. Polis) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To amend title 28, United States Code, to create a special motion to dismiss strategic lawsuits against public participation (SLAPP suits).
Short title
This Act may be cited as the Securing Participation, Engagement, and Knowledge Freedom by Reducing Egregious Efforts Act of 2015
or the SPEAK FREE Act of 2015
.
Special motion to dismiss strategic lawsuits against public participation
In General
Part VI of title 28, United States Code, is amended by adding after chapter 181 the following new chapter:
Special motion to dismiss strategic lawsuits against public participation
Sec.
4201. Strategic lawsuit against public participation defined.
4202. Motion to dismiss strategic lawsuit against public participation.
4203. Discovery.
4204. Interlocutory appeal.
4205. Motion to quash.
4206. Removal.
4207. Fees, costs, and sanctions.
4208. Definitions.
Strategic lawsuit against public participation defined
In this chapter, the term strategic lawsuit against public participation
or SLAPP suit
means a claim that arises from an oral or written statement or other expression, or conduct in furtherance of such expression, by the person against whom the claim is asserted that was made in connection with an official proceeding or about a matter of public concern.
Special motion to dismiss strategic lawsuit against public participation
In general
Except as provided in subsection (b), a person against whom a SLAPP suit is asserted may file a special motion to dismiss. If the party filing a special motion to dismiss a SLAPP suit makes a prima facie showing that the claim at issue arises from an oral or written statement or other expression by the defendant that was made in connection with an official proceeding or about a matter of public concern, then the motion shall be granted and the claim dismissed with prejudice, unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.
Exceptions
Enforcement actions
The court shall not grant a special motion to dismiss under this section if the claim is an enforcement action brought by an agency or entity of the Federal Government or a State or local government.
Commercial speech
Except as provided in subsection (c), the court shall not grant a special motion to dismiss under this section if the claim is brought against a person primarily engaged in the business of selling or leasing goods or services where such claim arises from the statement or conduct of such person and such statement or conduct—
consists of representations of fact about such person’s or a business competitor’s goods or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person’s goods or services, or the statement or conduct was made in the course of delivering the person’s goods or services; and
arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.
Public interest
Except as provided in subsection (c), the court shall not grant a special motion to dismiss under this section if the claim is a public interest claim.
Limitations on exceptions
Paragraphs (2) and (3) of subsection (b) shall not apply as to—
any claim against a person or entity engaged in the dissemination of ideas or expression in any book or academic journal, while engaged in the gathering, receiving, or processing of information for communication to the public;
any claim against any person or entity based upon statements or conduct concerning the creation, dissemination, exhibition, advertisement, or other similar promotion of journalistic, consumer commentary, dramatic, literary, musical, political, or artistic works, including motion pictures, television programs, or articles published online or in a newspaper or magazine of general circulation; or
any claim against a nonprofit organization that receives more than 50 percent of annual revenue grants or awards from, programs of, or reimbursements for services rendered to the Federal, State, or local government.
Time Limit
Unless the court grants an extension, a motion to dismiss a SLAPP suit shall be filed—
not later than 45 days after the date of service of the claim, if the claim is filed in a Federal court; or
not later than 30 days after the date of removal, if the claim is removed to Federal court under section 4206.
Hearing
In general
Except as provided in paragraphs (2) and (3), the court shall set a hearing on a special motion to dismiss a SLAPP suit on a date not later than 30 days after the date of service of the special motion to dismiss a SLAPP suit.
Hearing postponed
Except as provided in paragraph (3), the court may postpone the hearing for up to 60 days, but shall set the hearing on a date that is not later than 90 days after the date of service of the special motion to dismiss a SLAPP suit, if—
the docket conditions of the court require a later hearing;
there is a showing of good cause; or
the parties agree to postpone the hearing.
Extension for discovery
If the court allows specified discovery under subsection (a) of section 4203, the court may extend the hearing date to allow specified discovery under that subsection, but the court shall set the hearing on a date not later than 120 days after the date of service of the special motion to dismiss a SLAPP suit.
Ruling
The court must rule on a special motion to dismiss a SLAPP suit not later than 30 days after the date on which the final paper is required to be filed or the date argument is heard, whichever is later.
Evidence
In general
In determining whether a legal action should be dismissed under this chapter, the court shall consider the pleadings and affidavits stating the facts on which the liability or defense is based.
Discovery
If the court has ordered specified discovery pursuant to section 4203, the court may consider such discovery.
Stay of discovery
In general
Except as provided in subsection (b), upon the filing of a special motion to dismiss under section 4202, discovery proceedings in the action shall be stayed until a final and unappealable order is entered on such motion unless good cause is shown for specified discovery.
Exception
A stay issued under subsection (a) based on the filing of a special motion to dismiss under section 4202, that only seeks dismissal of a third-party claim or a cross claim asserted by a defendant shall only apply to discovery that is requested by the party asserting the third-party claim or cross claim or discovery that relates solely to the third-party claim or cross claim.
Interlocutory appeal
An aggrieved party may take an immediate interlocutory appeal from an order granting or denying in whole or in part a special motion to dismiss under section 4202.
Motion to quash
A person whose personally identifying information is sought in connection with a claim subject to the procedure described in section 4202(a) may at any time file a motion to quash the order to produce the information. If the party filing a motion to quash makes a prima facie showing that the order is for personally identifying information, then the motion shall be granted and the order to produce the personally identifying information shall be quashed, unless the responding party demonstrates with an evidentiary showing that the claim is likely to succeed on the merits of each and every element of the claim, in which case the motion to quash shall be denied. No determinations made in deciding a motion to quash under this section shall impede or otherwise diminish the availability of the procedures described in section 4202(a).
Removal
Special motion To dismiss SLAPP suit
In General
Except as provided in paragraph (2), a civil action in a State court that raises a claim described in section 4202(a) may be removed to the district court of the United States for the judicial district and division embracing the place where the civil action is pending. The grounds for removal provided in this section need not appear on the face of the complaint but may be shown in the petition for removal.
Exception
Removal may not be requested under paragraph (1) on the basis of a third-party claim or a cross claim asserted by a defendant.
Remand
If a civil action is removed under paragraph (1) and an order denying in its entirety a motion to dismiss filed under section 4202 is not appealed within the time permitted by law or all potential appellate proceedings have been exhausted, the court shall remand the remaining claims to the State court from which the civil action was removed. The remaining claims shall not be remanded to State court if the order granted a motion to dismiss in part and such order is not appealed within the time permitted by law or all potential appellate proceedings have been exhausted.
Motion To Quash
A proceeding in a State court in which a request or order that reasonably appears to be a request or order described in section 4205 is sought or issued may be removed to the district court of the United States for the judicial district and division embracing the place where the civil action is pending by any person that seeks to file a motion to quash under section 4205 and asserts a defense based on the First Amendment to the Constitution or laws of the United States.
Fees, costs, and sanctions
Attorneys fees
Except as provided in subsection (c), a court shall award a person that files and prevails on a motion to dismiss under section 4202 or a motion to quash under section 4205, litigation costs, expert witness fees, and reasonable attorneys fees. A party shall be a prevailing party as to a special motion to dismiss or to quash if a claim or discovery request is voluntarily dismissed or withdrawn after the filing of a special motion to dismiss.
Frivolous motions to dismiss
Except as provided in subsection (c), if a court finds that a motion to dismiss under section 4202, a motion to quash under section 4205, or a notice of removal under section 4206 is frivolous or is solely intended to cause unnecessary delay, the court shall award litigation costs, expert witness fees, and reasonable attorneys fees to the party that responded to the motion or notice.
Exception
The Federal Government and the government of a State, or political subdivision thereof, may not recover litigation costs, expert witness fees, or attorneys fees under this section.
Definitions
In this chapter:
Matter of public concern
The term matter of public concern
means an issue related to—
health or safety;
environmental, economic, or community well-being;
the government;
a public official or public figure; or
a good, product, or service in the marketplace.
Nonprofit organization
The term nonprofit organization
means any organization that is described in section 501(c) of the Internal Revenue Code of 1986 and is exempt from tax under section 501(a) of such Code.
Public interest claim
The term public interest claim
means a claim—
that is brought solely on behalf of the general public;
where private enforcement is necessary;
that places a disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the matter;
that, if successful, enforces an important right affecting the public interest and confers a significant benefit on the general public; and
notwithstanding attorneys fees, costs, or penalties, would provide relief only for the general public or a class of which the plaintiff is a member.
State
The term State
means each of the several States, the District of Columbia, each commonwealth, territory, or possession of the United States, and each federally recognized Indian tribe.
.
Technical and Conforming Amendments
Table of chapters
The table of chapters for part VI of title 28, United States Code, is amended by inserting after the item relating to chapter 181 the following new item:
.
Interlocutory decisions
Section 1292(a) of title 28, United States Code, is amended—
in paragraph (1), by striking the semicolon at the end and inserting a period;
in paragraph (2), by striking the semicolon at the end and inserting a period; and
by adding at the end the following:
Interlocutory orders granting or denying in whole or in part special motions to dismiss under section 4202.
.
Exceptions to discharge
Section 523(a) of title 11, United States Code, is amended—
in paragraph (18), by striking ; or
at the end and inserting a semicolon;
in paragraph (19), by striking the period at the end and inserting ; or
; and
by inserting after paragraph (19) the following:
for litigation costs, expert witness fees, or reasonable attorney’s fees awarded by a court under chapter 182 of title 28 or under comparable State laws.
.
Relationship to other laws
Nothing in this Act, or the amendments made by this Act, shall preempt or supersede any Federal or State statutory, constitutional, case, or common law that provides the equivalent or greater protection for persons engaging in activities protected by the First Amendment to the Constitution of the United States.
Rule of construction
This Act, and the amendments made by this Act, shall be construed broadly to effectuate the purpose and intent of this Act.
