F:\M14\FARENT\FARENT_018.XML ..................................................................... (Original Signature of Member) 114TH CONGRESS 1ST SESSION H. R. ll To amend title 28, United States Code, to create a special motion to dismiss strategic lawsuits against public participation (SLAPP suits). IN THE HOUSE OF REPRESENTATIVES Mr. FARENTHOLD introduced the following bill; which was referred to the Committee on llllllllllllll A BILL To amend title 28, United States Code, to create a special motion to dismiss strategic lawsuits against public participation (SLAPP suits). 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE. 4 This Act may be cited as the ‘‘Securing Participation, 5 Engagement, and Knowledge Freedom by Reducing Egre6 gious Efforts Act of 2015’’ or the ‘‘SPEAK FREE Act 7 of 2015’’. f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM F:\M14\FARENT\FARENT_018.XML 2 1 SEC. 2. SPECIAL MOTION TO DISMISS STRATEGIC LAW- 2 SUITS AGAINST PUBLIC PARTICIPATION. 3 (a) IN GENERAL.—Part VI of title 28, United States 4 Code, is amended by adding after chapter 181 the fol5 lowing new chapter: 6 ‘‘CHAPTER 182—SPECIAL MOTION TO DIS7 MISS STRATEGIC LAWSUITS AGAINST 8 PUBLIC PARTICIPATION ‘‘Sec. ‘‘4201. ‘‘4202. ‘‘4203. ‘‘4204. ‘‘4205. ‘‘4206. ‘‘4207. ‘‘4208. Strategic lawsuit against public participation defined. Motion to dismiss strategic lawsuit against public participation. Discovery. Interlocutory appeal. Motion to quash. Removal. Fees, costs, and sanctions. Definitions. 9 ‘‘§ 4201. Strategic lawsuit against public participation 10 11 defined ‘‘In this chapter, the term ‘strategic lawsuit against 12 public participation’ or ‘SLAPP suit’ means a claim that 13 arises from an oral or written statement or other expres14 sion, or conduct in furtherance of such expression, by the 15 person against whom the claim is asserted that was made 16 in connection with an official proceeding or about a matter 17 of public concern. 18 ‘‘§ 4202. Special motion to dismiss strategic lawsuit 19 20 against public participation ‘‘(a) IN GENERAL.—Except as provided in subsection 21 (b), a person against whom a SLAPP suit is asserted may f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM F:\M14\FARENT\FARENT_018.XML 3 1 file a special motion to dismiss. If the party filing a special 2 motion to dismiss a SLAPP suit makes a prima facie 3 showing that the claim at issue arises from an oral or writ4 ten statement or other expression by the defendant that 5 was made in connection with an official proceeding or 6 about a matter of public concern, then the motion shall 7 be granted and the claim dismissed with prejudice, unless 8 the responding party demonstrates that the claim is likely 9 to succeed on the merits, in which case the motion shall 10 be denied. 11 ‘‘(b) EXCEPTIONS.— 12 ‘‘(1) ENFORCEMENT court shall 13 not grant a special motion to dismiss under this sec- 14 tion if the claim is an enforcement action brought by 15 an agency or entity of the Federal Government or a 16 State or local government. 17 ‘‘(2) COMMERCIAL SPEECH.—Except as pro- 18 vided in subsection (c), the court shall not grant a 19 special motion to dismiss under this section if the 20 claim is brought against a person primarily engaged 21 in the business of selling or leasing goods or services 22 where such claim arises from the statement or con- 23 duct of such person and such statement or con- 24 duct— f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 ACTIONS.—The 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM F:\M14\FARENT\FARENT_018.XML 4 1 ‘‘(A) consists of representations of fact 2 about such person’s or a business competitor’s 3 goods or services, that is made for the purpose 4 of obtaining approval for, promoting, or secur- 5 ing sales or leases of, or commercial trans- 6 actions in, the person’s goods or services, or the 7 statement or conduct was made in the course of 8 delivering the person’s goods or services; and 9 ‘‘(B) arises out of the sale or lease of 10 goods, services, or an insurance product, insur- 11 ance services, or a commercial transaction in 12 which the intended audience is an actual or po- 13 tential buyer or customer. 14 ‘‘(3) PUBLIC INTEREST.—Except as provided in 15 subsection (c), the court shall not grant a special 16 motion to dismiss under this section if the claim is 17 a public interest claim. 18 ‘‘(c) LIMITATIONS ON EXCEPTIONS.—Paragraphs (2) 19 and (3) of subsection (b) shall not apply as to— 20 ‘‘(1) any claim against a person or entity en- 21 gaged in the dissemination of ideas or expression in 22 any book or academic journal, while engaged in the 23 gathering, receiving, or processing of information for 24 communication to the public; f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM F:\M14\FARENT\FARENT_018.XML 5 1 ‘‘(2) any claim against any person or entity 2 based upon statements or conduct concerning the 3 creation, dissemination, exhibition, advertisement, or 4 other similar promotion of journalistic, consumer 5 commentary, dramatic, literary, musical, political, or 6 artistic works, including motion pictures, television 7 programs, or articles published online or in a news- 8 paper or magazine of general circulation; or 9 ‘‘(3) any claim against a nonprofit organization 10 that receives more than 50 percent of annual rev- 11 enue grants or awards from, programs of, or reim- 12 bursements for services rendered to the Federal, 13 State, or local government. 14 ‘‘(d) TIME LIMIT.—Unless the court grants an exten- 15 sion, a motion to dismiss a SLAPP suit shall be filed— 16 ‘‘(1) not later than 45 days after the date of 17 service of the claim, if the claim is filed in a Federal 18 court; or 19 ‘‘(2) not later than 30 days after the date of re- 20 moval, if the claim is removed to Federal court 21 under section 4206. 22 ‘‘(e) HEARING.— 23 ‘‘(1) IN as provided in para- 24 graphs (2) and (3), the court shall set a hearing on 25 a special motion to dismiss a SLAPP suit on a date f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 GENERAL.—Except 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM F:\M14\FARENT\FARENT_018.XML 6 1 not later than 30 days after the date of service of 2 the special motion to dismiss a SLAPP suit. 3 ‘‘(2) HEARING POSTPONED.—Except as pro- 4 vided in paragraph (3), the court may postpone the 5 hearing for up to 60 days, but shall set the hearing 6 on a date that is not later than 90 days after the 7 date of service of the special motion to dismiss a 8 SLAPP suit, if— 9 ‘‘(A) the docket conditions of the court re- 10 quire a later hearing; 11 ‘‘(B) there is a showing of good cause; or 12 ‘‘(C) the parties agree to postpone the 13 hearing. 14 ‘‘(3) EXTENSION FOR DISCOVERY.—If the court 15 allows specified discovery under subsection (a) of 16 section 4203, the court may extend the hearing date 17 to allow specified discovery under that subsection, 18 but the court shall set the hearing on a date not 19 later than 120 days after the date of service of the 20 special motion to dismiss a SLAPP suit. 21 ‘‘(f) RULING.—The court must rule on a special mo- 22 tion to dismiss a SLAPP suit not later than 30 days after 23 the date on which the final paper is required to be filed 24 or the date argument is heard, whichever is later. 25 ‘‘(g) EVIDENCE.— f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM F:\M14\FARENT\FARENT_018.XML 7 1 ‘‘(1) IN GENERAL.—In determining whether a 2 legal action should be dismissed under this chapter, 3 the court shall consider the pleadings and affidavits 4 stating the facts on which the liability or defense is 5 based. 6 ‘‘(2) DISCOVERY.—If the court has ordered 7 specified discovery pursuant to section 4203, the 8 court may consider such discovery. 9 ‘‘§ 4203. Stay of discovery 10 ‘‘(a) IN GENERAL.—Except as provided in subsection 11 (b), upon the filing of a special motion to dismiss under 12 section 4202, discovery proceedings in the action shall be 13 stayed until a final and unappealable order is entered on 14 such motion unless good cause is shown for specified dis15 covery. 16 ‘‘(b) EXCEPTION.—A stay issued under subsection 17 (a) based on the filing of a special motion to dismiss under 18 section 4202, that only seeks dismissal of a third-party 19 claim or a cross claim asserted by a defendant shall only 20 apply to discovery that is requested by the party asserting 21 the third-party claim or cross claim or discovery that re22 lates solely to the third-party claim or cross claim. 23 ‘‘§ 4204. Interlocutory appeal 24 ‘‘An aggrieved party may take an immediate inter- 25 locutory appeal from an order granting or denying in f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM F:\M14\FARENT\FARENT_018.XML 8 1 whole or in part a special motion to dismiss under section 2 4202. 3 ‘‘§ 4205. Motion to quash 4 ‘‘A person whose personally identifying information 5 is sought in connection with a claim subject to the proce6 dure described in section 4202(a) may at any time file 7 a motion to quash the order to produce the information. 8 If the party filing a motion to quash makes a prima facie 9 showing that the order is for personally identifying infor10 mation, then the motion shall be granted and the order 11 to produce the personally identifying information shall be 12 quashed, unless the responding party demonstrates with 13 an evidentiary showing that the claim is likely to succeed 14 on the merits of each and every element of the claim, in 15 which case the motion to quash shall be denied. No deter16 minations made in deciding a motion to quash under this 17 section shall impede or otherwise diminish the availability 18 of the procedures described in section 4202(a). 19 ‘‘§ 4206. Removal 20 ‘‘(a) SPECIAL MOTION 21 ‘‘(1) IN DISMISS SLAPP SUIT.— GENERAL.—Except as provided in para- 22 graph (2), a civil action in a State court that raises 23 a claim described in section 4202(a) may be removed 24 to the district court of the United States for the ju- 25 dicial district and division embracing the place where f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 TO 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM F:\M14\FARENT\FARENT_018.XML 9 1 the civil action is pending. The grounds for removal 2 provided in this section need not appear on the face 3 of the complaint but may be shown in the petition 4 for removal. 5 ‘‘(2) EXCEPTION.—Removal may not be re- 6 quested under paragraph (1) on the basis of a third- 7 party claim or a cross claim asserted by a defendant. 8 ‘‘(3) REMAND.—If a civil action is removed 9 under paragraph (1) and an order denying in its en- 10 tirety a motion to dismiss filed under section 4202 11 is not appealed within the time permitted by law or 12 all potential appellate proceedings have been ex- 13 hausted, the court shall remand the remaining 14 claims to the State court from which the civil action 15 was removed. The remaining claims shall not be re- 16 manded to State court if the order granted a motion 17 to dismiss in part and such order is not appealed 18 within the time permitted by law or all potential ap- 19 pellate proceedings have been exhausted. 20 ‘‘(b) MOTION TO QUASH.—A proceeding in a State 21 court in which a request or order that reasonably appears 22 to be a request or order described in section 4205 is 23 sought or issued may be removed to the district court of 24 the United States for the judicial district and division em25 bracing the place where the civil action is pending by any f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM F:\M14\FARENT\FARENT_018.XML 10 1 person that seeks to file a motion to quash under section 2 4205 and asserts a defense based on the First Amendment 3 to the Constitution or laws of the United States. 4 ‘‘§ 4207. Fees, costs, and sanctions 5 ‘‘(a) ATTORNEYS FEES.—Except as provided in sub- 6 section (c), a court shall award a person that files and 7 prevails on a motion to dismiss under section 4202 or a 8 motion to quash under section 4205, litigation costs, ex9 pert witness fees, and reasonable attorneys fees. A party 10 shall be a prevailing party as to a special motion to dismiss 11 or to quash if a claim or discovery request is voluntarily 12 dismissed or withdrawn after the filing of a special motion 13 to dismiss. 14 ‘‘(b) FRIVOLOUS MOTIONS TO DISMISS.—Except as 15 provided in subsection (c), if a court finds that a motion 16 to dismiss under section 4202, a motion to quash under 17 section 4205, or a notice of removal under section 4206 18 is frivolous or is solely intended to cause unnecessary 19 delay, the court shall award litigation costs, expert witness 20 fees, and reasonable attorneys fees to the party that re21 sponded to the motion or notice. 22 ‘‘(c) EXCEPTION.—The Federal Government and the 23 government of a State, or political subdivision thereof, 24 may not recover litigation costs, expert witness fees, or 25 attorneys fees under this section. f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM F:\M14\FARENT\FARENT_018.XML 11 1 ‘‘§ 4208. Definitions 2 ‘‘In this chapter: 3 ‘‘(1) MATTER term 4 ‘matter of public concern’ means an issue related 5 to— 6 ‘‘(A) health or safety; 7 ‘‘(B) environmental, economic, or commu- 8 nity well-being; 9 ‘‘(C) the government; 10 ‘‘(D) a public official or public figure; or 11 ‘‘(E) a good, product, or service in the 12 marketplace. 13 ‘‘(2) NONPROFIT ORGANIZATION.—The term 14 ‘nonprofit organization’ means any organization that 15 is described in section 501(c) of the Internal Rev- 16 enue Code of 1986 and is exempt from tax under 17 section 501(a) of such Code. 18 19 ‘‘(3) PUBLIC INTEREST CLAIM.—The term ‘public interest claim’ means a claim— 20 ‘‘(A) that is brought solely on behalf of the 21 general public; 22 ‘‘(B) where private enforcement is nec- 23 essary; 24 ‘‘(C) that places a disproportionate finan- 25 cial burden on the plaintiff in relation to the 26 plaintiff’s stake in the matter; f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 OF PUBLIC CONCERN.—The 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM F:\M14\FARENT\FARENT_018.XML 12 1 ‘‘(D) that, if successful, enforces an impor- 2 tant right affecting the public interest and con- 3 fers a significant benefit on the general public; 4 and 5 ‘‘(E) notwithstanding attorneys fees, costs, 6 or penalties, would provide relief only for the 7 general public or a class of which the plaintiff 8 is a member. 9 ‘‘(4) STATE.—The term ‘State’ means each of 10 the several States, the District of Columbia, each 11 commonwealth, territory, or possession of the United 12 States, and each federally recognized Indian tribe.’’. 13 (b) TECHNICAL 14 (1) TABLE CONFORMING AMENDMENTS.— OF CHAPTERS.—The table of chap- 15 ters for part VI of title 28, United States Code, is 16 amended by inserting after the item relating to 17 chapter 181 the following new item: ‘‘182. Special 18 Motion to dismiss strategic lawsuits against public participation .............................. 4201’’. (2) INTERLOCUTORY DECISIONS.—Section 19 1292(a) of title 28, United States Code, is amend- 20 ed— 21 (A) in paragraph (1), by striking the semi- 22 colon at the end and inserting a period; 23 (B) in paragraph (2), by striking the semi- 24 colon at the end and inserting a period; and f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 AND 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM F:\M14\FARENT\FARENT_018.XML 13 1 (C) by adding at the end the following: 2 ‘‘(4) Interlocutory orders granting or denying in 3 whole or in part special motions to dismiss under 4 section 4202.’’. 5 (3) EXCEPTIONS TO DISCHARGE.—Section 6 523(a) of title 11, United States Code, is amend- 7 ed— 8 (A) in paragraph (18), by striking ‘‘; or’’ 9 at the end and inserting a semicolon; 10 (B) in paragraph (19), by striking the pe- 11 riod at the end and inserting ‘‘; or’’; and 12 (C) by inserting after paragraph (19) the 13 following: 14 ‘‘(20) for litigation costs, expert witness fees, or 15 reasonable attorney’s fees awarded by a court under 16 chapter 182 of title 28 or under comparable State 17 laws.’’. 18 (c) RELATIONSHIP TO OTHER LAWS.—Nothing in 19 this Act, or the amendments made by this Act, shall pre20 empt or supersede any Federal or State statutory, con21 stitutional, case, or common law that provides the equiva22 lent or greater protection for persons engaging in activities 23 protected by the First Amendment to the Constitution of 24 the United States. f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM F:\M14\FARENT\FARENT_018.XML 14 1 (d) RULE OF CONSTRUCTION.—This Act, and the 2 amendments made by this Act, shall be construed broadly 3 to effectuate the purpose and intent of this Act. f:\VHLC\051115\051115.086.xml May 11, 2015 (11:59 a.m.) VerDate 0ct 09 2002 11:59 May 11, 2015 Jkt 000000 (591409 35) PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 C:\USERS\KCSWISS\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\FARENT~1.XM