S 3493 ISCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

2d SessionCommentsClose CommentsPermalink

S. 3493CommentsClose CommentsPermalink

To protect first amendment rights of journalists and internet service providers by preventing States and the United States from allowing meritless lawsuits arising from acts in furtherance of those rights, commonly called ‘Strategic Lawsuits Against Public Participation’ or ‘SLAPPs’, and for other purposes.CommentsClose CommentsPermalink

IN THE SENATE OF THE UNITED STATESCommentsClose CommentsPermalink

August 2, 2012CommentsClose CommentsPermalink

Mr. KYL introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

To protect first amendment rights of journalists and internet service providers by preventing States and the United States from allowing meritless lawsuits arising from acts in furtherance of those rights, commonly called ‘Strategic Lawsuits Against Public Participation’ or ‘SLAPPs’, and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Free Press Act of 2012’.CommentsClose CommentsPermalink

SEC. 2. SPECIAL MOTION TO DISMISS.

Part VI of title 28, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink

‘CHAPTER 182--SPECIAL MOTION TO DISMISS

‘Sec.CommentsClose CommentsPermalink





‘4201. Special motion to dismiss.CommentsClose CommentsPermalink





‘4202. Stay of discovery.CommentsClose CommentsPermalink





‘4203. Exceptions for governmental litigation and commercial speech.CommentsClose CommentsPermalink





‘4204. Interlocutory appeal.CommentsClose CommentsPermalink





‘4205. Special motion to quash.CommentsClose CommentsPermalink





‘4206. Removal.CommentsClose CommentsPermalink





‘4207. Fees, costs, and sanctions.CommentsClose CommentsPermalink

‘Sec. 4201. Special motion to dismiss

‘(a) In General- A representative of the news media (as defined in section 552(a)(4) of title 5) may file a special motion to dismiss any claim asserted against the representative of the news media in a civil action if the claim arises in whole or in part from an oral or written statement or other expression that is on a matter of public concern or that relates to a public official or figure.CommentsClose CommentsPermalink





‘(b) Time Limit- Unless the court grants an extension, a special motion to dismiss under this section shall be filed--CommentsClose CommentsPermalink





‘(1) not later than 45 days after the date of service of the claim, if the claim is filed in Federal court; orCommentsClose CommentsPermalink





‘(2) not later than 30 days after the date of removal, if the claim is removed to Federal court under section 4206.CommentsClose CommentsPermalink





‘(c) Amendments- If a special motion to dismiss is filed under this section as to a claim, the claim may not be amended or supplemented until a final and unappealable order is entered denying the special motion to dismiss.CommentsClose CommentsPermalink





‘(d) Burdens of Proof-CommentsClose CommentsPermalink





‘(1) MOVING PARTY- A representative of the news media filing a special motion to dismiss under this section as to a claim shall have the burden of making a prima facie showing that the claim is a claim described in subsection (a).CommentsClose CommentsPermalink





‘(2) NONMOVING PARTY- If the movant meets the burden described in paragraph (1) for a claim, the party asserting the claim shall bear the burden of proving that the claim is--CommentsClose CommentsPermalink





‘(A) legally sufficient; andCommentsClose CommentsPermalink





‘(B) supported by a prima facie showing, based on admissible evidence, of facts sufficient to sustain a favorable judgment.CommentsClose CommentsPermalink





‘(3) FAILURE TO MEET BURDEN- If the nonmoving party fails to meet the burden required for a claim under paragraph (2), the claim shall be dismissed with prejudice.CommentsClose CommentsPermalink

‘Sec. 4202. Stay of discovery

‘(a) In General- Except as provided in subsection (b), upon the filing of a special motion to dismiss under section 4201, discovery proceedings in the action shall be stayed until a final and unappealable order is entered on the special motion to dismiss.CommentsClose CommentsPermalink





‘(b) Limitation and Exception-CommentsClose CommentsPermalink





‘(1) LIMITATION- A stay issued under subsection (a) based on the filing of a special motion to dismiss that only seeks dismissal of a third-party claim or a cross claim asserted by a defendant shall only stay discovery that--CommentsClose CommentsPermalink





‘(A) is requested by the party asserting the third-party claim or cross claim; orCommentsClose CommentsPermalink





‘(B) relates solely to the third-party claim or cross claim.CommentsClose CommentsPermalink





‘(2) EXCEPTION- Upon motion and for good cause shown, a court may order that specified discovery be conducted.CommentsClose CommentsPermalink

‘Sec. 4203. Exceptions for governmental litigation and commercial speech

‘A special motion to dismiss under section 4201 may not be filed as to a claim that--CommentsClose CommentsPermalink





‘(1) is brought by the Federal Government or the attorney general of a State; orCommentsClose CommentsPermalink





‘(2) arises out of a statement offering or promoting the sale of the goods or services of the person making the statement.CommentsClose CommentsPermalink

‘Sec. 4204. 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 4201.CommentsClose CommentsPermalink

‘Sec. 4205. Special motion to quash

‘(a) In General- A person whose personally identifying information is sought in connection with a claim that arises in whole or in part from an oral or written statement or other expression that is on a matter of public concern or that relates to a public official or figure, or a person from whom such information is sought in connection with such a claim, may file a special motion to quash the request or order to produce the information.CommentsClose CommentsPermalink





‘(b) Burdens of Proof-CommentsClose CommentsPermalink





‘(1) MOVING PARTY- A person filing a special motion to quash a request or order under this section shall have the burden of making a prima facie showing that the request or order is a request or order described in subsection (a).CommentsClose CommentsPermalink





‘(2) NONMOVING PARTY- If the movant meets the burden described in paragraph (1), the party who made the request or sought the order shall bear the burden of showing that the claim described in subsection (a) is--CommentsClose CommentsPermalink





‘(A) legally sufficient; andCommentsClose CommentsPermalink





‘(B) supported by a prima facie showing, based on admissible evidence, of facts sufficient to sustain a favorable judgment.CommentsClose CommentsPermalink





‘(3) FAILURE TO MEET BURDEN- If the nonmoving party fails to meet the burden required for a claim under paragraph (2), the request or order to produce the personally identifying information shall be quashed.CommentsClose CommentsPermalink

‘Sec. 4206. Removal

‘(a) Special Motion To Dismiss-CommentsClose CommentsPermalink





‘(1) IN GENERAL- Except as provided in paragraph (2), a civil action in a State court that raises a claim that colorably appears to be a claim described in section 4201(a) may be removed to the district court of the United States for the district and division embracing the place where the civil action is pending by a party who may file and who seeks to file a special motion to dismiss under section 4201 that asserts a colorable defense based on the Constitution or laws of the United States.CommentsClose CommentsPermalink





‘(2) 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.CommentsClose CommentsPermalink





‘(3) REMAND- If a civil action is removed under paragraph (1), and a final and unappealable order is entered denying the special motion to dismiss filed under section 4201, the court may remand the remaining claims to the State court from which the civil action was removed.CommentsClose CommentsPermalink





‘(b) Special Motion To Quash-CommentsClose CommentsPermalink





‘(1) IN GENERAL- A proceeding in a State court in which a request or order that colorably appears to be a request or order described in section 4205(a) is sought, issued, or sought to be enforced may be removed to the district court of the United States for the district and division embracing the place where the civil action is pending by a person who may file and who seeks to file a special motion to quash under section 4205 that asserts a colorable defense based on the Constitution or laws of the United States.CommentsClose CommentsPermalink





‘(2) LIMITATION- If removal is requested under paragraph (1) for a proceeding in which a request or order described in section 4205(a) is sought, issued, or sought to be enforced, and there is no basis for removal of the remainder of the civil action in connection with which the proceeding is brought, or no party has requested removal of the remainder of the civil action, only the proceeding in which the request or order described is section 4205(a) is sought, issued, or sought to be enforced may be removed.CommentsClose CommentsPermalink

‘Sec. 4207. Fees, costs, and sanctions

‘(a) Attorney’s Fees and Costs- Except as provided in subsection (c), a court shall award a person who files and prevails on a special motion to dismiss under section 4201 or a special motion to quash under section 4205 litigation costs, expert witness fees, and reasonable attorney’s fees.CommentsClose CommentsPermalink





‘(b) Frivolous Motions or Petitions- Except as provided in subsection (c)(1), if a court finds that a special motion to dismiss under section 4201, a special 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 may award litigation costs, expert witness fees, and reasonable attorney’s fees to the party that responded to the motion or notice.CommentsClose CommentsPermalink





‘(c) Exceptions-CommentsClose CommentsPermalink





‘(1) GOVERNMENTAL ENTITIES- The Federal Government and the government of a State, or political subdivision thereof, may not recover litigation costs, expert witness fees, or attorney’s fees under this section.CommentsClose CommentsPermalink





‘(2) NOVEL LEGAL QUESTIONS- A court may not award litigation costs, expert witness fees, or attorney’s fees under subsection (a) if the grant of the special motion to dismiss under section 4201 or the special motion to quash under section 4205 depended on the resolution of a novel or unsettled legal question in favor of the movant.’.CommentsClose CommentsPermalink

SEC. 3. 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.CommentsClose CommentsPermalink

SEC. 4. TECHNICAL AND CONFORMING AMENDMENTS.

(a) Table of Chapters- The table of chapters for part VI of title 28, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink

4201’.CommentsClose CommentsPermalink

(b) Interlocutory Appeals- Section 1292(a) of title 28, United States Code, is amended--CommentsClose CommentsPermalink





(1) in paragraph (3), by striking the period at the end and inserting ‘; and’; andCommentsClose CommentsPermalink





(2) by adding at the end the following:CommentsClose CommentsPermalink





‘(4) Interlocutory orders granting or denying in whole or in part special motions to dismiss under section 4201.’.CommentsClose CommentsPermalink





(c) Nondischargability of Fees and Costs- Section 523(a) of title 11, United States Code, is amended--CommentsClose CommentsPermalink





(1) in paragraph (18), by striking ‘or’ at the end;CommentsClose CommentsPermalink





(2) in paragraph (19), by striking the period at the end and inserting ‘; or’; andCommentsClose CommentsPermalink





(3) by inserting after paragraph (19) the following:CommentsClose CommentsPermalink





‘(20) 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.’.CommentsClose CommentsPermalink

SEC. 5. EFFECTIVE DATE; APPLICABILITY.

(a) Effective Date- Except as provided in subsection (b), this Act and the amendments made by this Act shall--CommentsClose CommentsPermalink





(1) take effect on the date of enactment of this Act; andCommentsClose CommentsPermalink





(2) apply to a claim filed on or after the date of enactment of this Act.CommentsClose CommentsPermalink





(b) Claims Filed Before Enactment- For a claim that was filed before and is pending on the date of enactment of this Act--CommentsClose CommentsPermalink





(1) this Act and the amendments made by this Act shall apply to the claim if the court with original jurisdiction of the claim has not entered a judgment on the merits as to the claim as of the date of enactment of this Act; andCommentsClose CommentsPermalink





(2) for a claim described in paragraph (1), the periods under sections 4201 and 1446 of title 28, United States Code, as amended by this Act, shall begin on the date of enactment of this Act.CommentsClose CommentsPermalink