[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 7771 Introduced in House (IH)]
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116th CONGRESS
2d Session
H. R. 7771
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.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 24, 2020
Mr. Cohen introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Citizen Participation Act of 2020''.
SEC. 2. FINDINGS.
The Congress finds and declares that--
(1) 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;
(2) 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;
(3) 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;
(4) 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;
(5) 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;
(6) 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;
(7) SLAPPs are an abuse of the judicial process that waste
judicial resources and clog the already over-burdened court
dockets;
(8) while some courts and State legislatures have
recognized and discouraged SLAPPs, protection against SLAPPs
has not been uniform or comprehensive; and
(9) 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.
SEC. 3. IMMUNITY FOR PETITION ACTIVITY.
(a) Immunity.--Any act of petitioning the government made without
knowledge of falsity or reckless disregard of falsity shall be immune
from civil liability.
(b) Burden and Standard of Proof.--A plaintiff must prove knowledge
of falsity or reckless disregard of falsity by clear and convincing
evidence.
SEC. 4. 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.
SEC. 5. SPECIAL MOTION TO DISMISS.
(a) In General.--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.
(b) 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.
(c) 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.
(d) Expedited Hearing.--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.
(e) Immediate Appeal.--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.
SEC. 6. FEDERAL REMOVAL JURISDICTION.
(a) In General.--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.
(b) 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.
(c) Timing.--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.
SEC. 7. SPECIAL MOTION TO QUASH.
(a) In General.--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.
(b) 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.
SEC. 8. FEES AND COSTS.
(a) Attorney's Fees.--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.
(b) 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.
(c) Government Entities.--A government entity may not recover fees
pursuant to this section.
SEC. 9. 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.
SEC. 10. EXEMPTIONS.
(a) Public Enforcement.--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.
(b) Commercial Speech.--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.
(c) ``SLAPP-Back'' Suits.--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.
SEC. 11. DEFINITIONS.
In this Act:
(1) Act in furtherance of the right of free speech.--The
term ``act in furtherance of the right of free speech''
includes but is not limited to--
(A) 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;
(B) 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
(C) 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.
(2) Act of petitioning the government.--The term ``act of
petitioning the government'' includes but is not limited to any
written or oral statement--
(A) made or submitted before a legislative,
executive, or judicial body, or any other official
proceeding authorized by law; or
(B) any written or oral statement encouraging a
statement before a legislative, executive, or judicial
body, or any other official proceeding authorized by
law.
(3) Claim.--The term ``claim'' includes any civil lawsuit,
claim, complaint, cause of action, cross-claim, counterclaim,
or other judicial pleading or filing requesting relief.
(4) Government entity.--The term ``government entity''
includes the United States, a branch, department, agency,
State, or subdivision of a State, or other public authority.
(5) Issue of public interest.--The term ``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.
(6) Personally identifying information.--The term
``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.
(7) State.--The term ``State'' means each of the several
States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.
SEC. 12. CONSTRUCTION.
This Act shall be liberally construed to effectuate its findings
and purposes fully, except that the exemptions shall be construed
narrowly.
SEC. 13. 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.
SEC. 14. SEVERABILITY.
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.
SEC. 15. EFFECTIVE DATE.
This Act shall become effective upon enactment.
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