H. R. 4364
IN THE HOUSE OF REPRESENTATIVES
December 16, 2009
Mr. Cohen introduced the following bill; which was referred to the Committee on the Judiciary
To protect first amendment rights of petition and free speech by preventing States and the United States from allowing meritless lawsuits arising from acts in furtherance of those rights, commonly called
SLAPPs, and for other purposes.
This Act may be cited as the
Citizen Participation Act of 2009.
The Congress finds and declares that—
the framers of our Constitution, recognizing participation in government and freedom of speech as inalienable rights essential to the survival of democracy, secured their protection through the First Amendment to the United States Constitution;
the communications, information, opinions, reports, testimony, claims and arguments that individuals, organizations and businesses provide to the government are essential to wise government decisions and public policy, the public health, safety, and welfare, effective law enforcement, the efficient operation of government programs, the credibility and trust afforded government, and the continuation of America’s representative democracy;
civil lawsuits and counterclaims, often claiming millions of dollars in damages, have been and are being filed against thousands of individuals, organizations, and businesses based upon their valid exercise of the rights to petition or free speech, including seeking relief, influencing action, informing, communicating, and otherwise participating with government, the electorate, or in matters of public interest;
such lawsuits, called Strategic Lawsuits Against Public Participation or SLAPPs, are often ultimately dismissed as groundless or unconstitutional, but not before the defendants are put to great expense, harassment, and interruption of their productive activities;
it is in the public interest for individuals, organizations and businesses to participate in matters of public concern and provide information to public entities and other citizens on public issues that affect them without fear of reprisal through abuse of the judicial process;
the threat of financial liability, litigation costs, destruction of one’s business, loss of one’s home, and other personal losses from groundless lawsuits seriously impacts government, interstate commerce, and individual rights by significantly chilling public participation in government, public issues, and in voluntary service;
SLAPPs are an abuse of the judicial process that waste judicial resources and clog the already over-burdened court dockets;
while some courts and State legislatures have recognized and discouraged SLAPPs, protection against SLAPPs has not been uniform or comprehensive; and
some SLAPP victims are deprived of the relief to which they are entitled because the current bankruptcy law allows for the discharge of fees, costs and damages awarded against a party for maintaining a SLAPP.
Immunity for petition activity
Any act of petitioning the government made without knowledge of falsity or reckless disregard of falsity shall be immune from civil liability.
Burden and standard of proof
A plaintiff must prove knowledge of falsity or reckless disregard of falsity by clear and convincing evidence.
Protection for petition and speech activity
Any act in furtherance of the constitutional right of petition or free speech shall be entitled to the procedural protections provided in this Act.
Special motion to dismiss
A party may file a special motion to dismiss any claim arising from an act or alleged act in furtherance of the constitutional right of petition or free speech within 45 days after service of the claim if the claim was filed in Federal court or, if the claim was removed to Federal court pursuant to section 6 of this Act, within 15 days after removal.
Burdens of the parties
A party filing a special motion to dismiss under this Act has the initial burden of making a prima facie showing that the claim at issue arises from an act in furtherance of the constitutional right of petition or free speech. If the moving party meets this burden, the burden shifts to the responding party to demonstrate that the claim is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.
Stay of discovery
Upon the filing of a special motion to dismiss, discovery proceedings in the action shall be stayed until notice of entry of an order disposing of the motion, except that the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.
The court shall hold an expedited hearing on the special motion to dismiss, and issue a ruling as soon as practicable after the hearing. The parties may submit the pleadings and affidavits stating the facts upon which the liability or defense is based. The court shall explain the reasons for its grant or denial of the motion in a statement for the record. If the special motion to dismiss is granted, dismissal shall be with prejudice.
The defendant shall have a right of immediate appeal from a district court order denying a special motion to dismiss in whole or in part.
Federal removal jurisdiction
A civil action commenced in a State court against any person who asserts as a defense the immunity provided for in section 3 of this Act, or asserts that the action arises from an act in furtherance of the constitutional right of petition or free speech, may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending.
Remand of remaining claims
A court exercising jurisdiction under this section shall remand any claims against which the special motion to dismiss has been denied, as well as any remaining claims against which a special motion to dismiss was not brought, to the State court from which it was removed.
A court exercising jurisdiction under this section shall remand an action if a special motion to dismiss is not filed within 15 days after removal.
Special motion to quash
A person whose personally identifying information is sought in connection with an action pending in Federal court arising from an act in furtherance of the constitutional right of petition or free speech may make a special motion to quash the discovery order, request or subpoena.
Burdens of the parties
The person bringing a special motion to quash under this section must make a prima facie showing that the underlying claim arises from an act in furtherance of the constitutional right of petition or free speech. If this burden is met, the burden shifts to the plaintiff in the underlying action to demonstrate that the underlying claim is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. This standard shall apply only to a special motion to quash brought under this section.
Fees and costs
The court shall award a moving party who prevails on a special motion to dismiss or quash the costs of litigation, including a reasonable attorney’s fee.
Frivolous motions and removal
If the court finds that a special motion to dismiss, special motion to quash, or the removal of a claim under this Act is frivolous or is solely intended to cause unnecessary delay, the court may award a reasonable attorney’s fees and costs to the responding party.
A government entity may not recover fees pursuant to this section.
Bankruptcy nondischargability of fees and costs
Fees or costs awarded against a party by a court for the prosecution of any claim finally dismissed pursuant to this Act, or any subpoena or discovery order quashed pursuant to this Act, or any claim finally dismissed pursuant to a State anti-SLAPP law, shall not be dischargeable in bankruptcy under section 1328 or section 523 of title 11, United States Code.
Sections 4 through 8 of this Act shall not be available in any action brought solely on behalf of the public or solely to enforce an important right affecting the public interest.
This Act shall not apply to any claim for relief brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct from which the claim arises is a representation of fact made for the purpose of promoting, securing or completing sales or leases of, or commercial transactions in, the person’s goods or services, and the intended audience is an actual or potential buyer or customer.
This Act shall not be available to dismiss any action or claim arising from a claim that has been dismissed pursuant to this Act or to a State anti-SLAPP law.
In this Act:
Act in furtherance of the right of free speech
act in furtherance of the right of free speech includes but is not limited to—
any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
any written or oral statement made in a place open to the public or a public forum in connection with an issue of public interest; or
any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with an issue of public interest.
Act of petitioning the government
act of petitioning the government includes but is not limited to any written or oral statement—
made or submitted before a legislative, executive, or judicial body, or any other official proceeding authorized by law; or
any written or oral statement encouraging a statement before a legislative, executive, or judicial body, or any other official proceeding authorized by law.
claim includes any civil lawsuit, claim, complaint, cause of action, cross-claim, counterclaim, or other judicial pleading or filing requesting relief.
government entity includes the United States, a branch, department, agency, State, or subdivision of a State, or other public authority.
Issue of public interest
issue of public interest includes an issue related to health or safety; environmental, economic or community well-being; the government; a public figure; or a good, product or service in the market place.
Issue of public interest shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker’s business interests rather than toward commenting on or sharing information about a matter of public significance.
Personally identifying information
personally identifying information means first and last name or last name only; home or other physical address including temporary shelter or housing and including a street name or ZIP Code; full date of birth; email address or other online contact information; telephone number; social security number; Internet protocol address or host name that identifies an individual, or any other information that would serve to identify an individual.
State means each of the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
This Act shall be liberally construed to effectuate its findings and purposes fully, except that the exemptions shall be construed narrowly.
Relationship to other laws
Nothing in this Act shall preempt or supersede any Federal, State, constitutional, case or common law that provides the equivalent or greater protection for persons engaging in activities in furtherance of the rights of petition or free speech.
If any provision of this Act or the application of any provision of this Act to any person or circumstance is held invalid, the application of such provision to other persons or circumstances and the remainder of this Act shall not be affected thereby.
This Act shall become effective upon enactment.