Citizen Participation Act of 2020

I 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Citizen Participation 4 Act of 2020’’. 5 SEC. 2. FINDINGS. 6 The Congress finds and declares that— 7 VerDate Sep 11 2014 16:16 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H7771.IH H7771 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 7771 IH (1) the framers of our Constitution, recognizing 1 participation in government and freedom of speech 2 as inalienable rights essential to the survival of de- 3 mocracy, secured their protection through the First 4 Amendment to the United States Constitution; 5 (2) the communications, information, opinions, 6 reports, testimony, claims and arguments that indi- 7 viduals, organizations and businesses provide to the 8 government are essential to wise government deci- 9 sions and public policy, the public health, safety, and 10 welfare, effective law enforcement, the efficient oper- 11 ation of government programs, the credibility and 12 trust afforded government, and the continuation of 13 America’s representative democracy; 14 (3) civil lawsuits and counterclaims, often 15 claiming millions of dollars in damages, have been 16 and are being filed against thousands of individuals, 17 organizations, and businesses based upon their valid 18 exercise of the rights to petition or free speech, in- 19 cluding seeking relief, influencing action, informing, 20 communicating, and otherwise participating with 21 government, the electorate, or in matters of public 22 interest; 23 (4) such lawsuits, called Strategic Lawsuits 24 Against Public Participation or SLAPPs, are often 25 VerDate Sep 11 2014 16:16 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7771.IH H7771 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 7771 IH ultimately dismissed as groundless or unconstitu- 1 tional, but not before the defendants are put to 2 great expense, harassment, and interruption of their 3 productive activities; 4 (5) it is in the public interest for individuals, 5 organizations and businesses to participate in mat- 6 ters of public concern and provide information to 7 public entities and other citizens on public issues 8 that affect them without fear of reprisal through 9 abuse of the judicial process; 10 (6) the threat of financial liability, litigation 11 costs, destruction of one’s business, loss of one’s 12 home, and other personal losses from groundless 13 lawsuits seriously impacts government, interstate 14 commerce, and individual rights by significantly 15 chilling public participation in government, public 16 issues, and in voluntary service; 17 (7) SLAPPs are an abuse of the judicial proc- 18 ess that waste judicial resources and clog the al- 19 ready over-burdened court dockets; 20 (8) while some courts and State legislatures 21 have recognized and discouraged SLAPPs, protec- 22 tion against SLAPPs has not been uniform or com- 23 prehensive; and 24 VerDate Sep 11 2014 16:16 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7771.IH H7771 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 7771 IH (9) some SLAPP victims are deprived of the re- 1 lief to which they are entitled because the current 2 bankruptcy law allows for the discharge of fees, 3 costs and damages awarded against a party for 4 maintaining a SLAPP. 5 SEC. 3. IMMUNITY FOR PETITION ACTIVITY. 6 (a) IMMUNITY.—Any act of petitioning the govern- 7 ment made without knowledge of falsity or reckless dis- 8 regard of falsity shall be immune from civil liability. 9 (b) BURDEN AND STANDARD OF PROOF.—A plaintiff 10 must prove knowledge of falsity or reckless disregard of 11 falsity by clear and convincing evidence. 12 SEC. 4. PROTECTION FOR PETITION AND SPEECH ACTIV- 13 ITY. 14 Any act in furtherance of the constitutional right of 15 petition or free speech shall be entitled to the procedural 16 protections provided in this Act. 17 SEC. 5. SPECIAL MOTION TO DISMISS. 18 (a) IN GENERAL.—A party may file a special motion 19 to dismiss any claim arising from an act or alleged act 20 in furtherance of the constitutional right of petition or free 21 speech within 45 days after service of the claim if the 22 claim was filed in Federal court or, if the claim was re- 23 moved to Federal court pursuant to section 6 of this Act, 24 within 15 days after removal. 25 VerDate Sep 11 2014 16:16 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7771.IH H7771 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 7771 IH (b) BURDENS OF THE PARTIES.—A party filing a 1 special motion to dismiss under this Act has the initial 2 burden of making a prima facie showing that the claim 3 at issue arises from an act in furtherance of the constitu- 4 tional right of petition or free speech. If the moving party 5 meets this burden, the burden shifts to the responding 6 party to demonstrate that the claim is both legally suffi- 7 cient and supported by a sufficient prima facie showing 8 of facts to sustain a favorable judgment. 9 (c) STAY OF DISCOVERY.—Upon the filing of a spe- 10 cial motion to dismiss, discovery proceedings in the action 11 shall be stayed until notice of entry of an order disposing 12 of the motion, except that the court, on noticed motion 13 and for good cause shown, may order that specified dis- 14 covery be conducted. 15 (d) EXPEDITED HEARING.—The court shall hold an 16 expedited hearing on the special motion to dismiss, and 17 issue a ruling as soon as practicable after the hearing. The 18 parties may submit the pleadings and affidavits stating 19 the facts upon which the liability or defense is based. The 20 court shall explain the reasons for its grant or denial of 21 the motion in a statement for the record. If the special 22 motion to dismiss is granted, dismissal shall be with preju- 23 dice. 24 VerDate Sep 11 2014 16:16 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7771.IH H7771 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 7771 IH (e) IMMEDIATE APPEAL.—The defendant shall have 1 a right of immediate appeal from a district court order 2 denying a special motion to dismiss in whole or in part. 3 SEC. 6. FEDERAL REMOVAL JURISDICTION. 4 (a) IN GENERAL.—A civil action commenced in a 5 State court against any person who asserts as a defense 6 the immunity provided for in section 3 of this Act, or as- 7 serts that the action arises from an act in furtherance of 8 the constitutional right of petition or free speech, may be 9 removed by the defendant to the district court of the 10 United States for the district and division embracing the 11 place wherein it is pending. 12 (b) REMAND OF REMAINING CLAIMS.—A court exer- 13 cising jurisdiction under this section shall remand any 14 claims against which the special motion to dismiss has 15 been denied, as well as any remaining claims against 16 which a special motion to dismiss was not brought, to the 17 State court from which it was removed. 18 (c) TIMING.—A court exercising jurisdiction under 19 this section shall remand an action if a special motion to 20 dismiss is not filed within 15 days after removal. 21 SEC. 7. SPECIAL MOTION TO QUASH. 22 (a) IN GENERAL.—A person whose personally identi- 23 fying information is sought in connection with an action 24 pending in Federal court arising from an act in further- 25 VerDate Sep 11 2014 16:16 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7771.IH H7771 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 7771 IH ance of the constitutional right of petition or free speech 1 may make a special motion to quash the discovery order, 2 request or subpoena. 3 (b) BURDENS OF THE PARTIES.—The person bring- 4 ing a special motion to quash under this section must 5 make a prima facie showing that the underlying claim 6 arises from an act in furtherance of the constitutional 7 right of petition or free speech. If this burden is met, the 8 burden shifts to the plaintiff in the underlying action to 9 demonstrate that the underlying claim is both legally suffi- 10 cient and supported by a sufficient prima facie showing 11 of facts to sustain a favorable judgment. This standard 12 shall apply only to a special motion to quash brought 13 under this section. 14 SEC. 8. FEES AND COSTS. 15 (a) ATTORNEY’S FEES.—The court shall award a 16 moving party who prevails on a special motion to dismiss 17 or quash the costs of litigation, including a reasonable at- 18 torney’s fee. 19 (b) FRIVOLOUS MOTIONS AND REMOVAL.—If the 20 court finds that a special motion to dismiss, special motion 21 to quash, or the removal of a claim under this Act is frivo- 22 lous or is solely intended to cause unnecessary delay, the 23 court may award a reasonable attorney’s fees and costs 24 to the responding party. 25 VerDate Sep 11 2014 16:16 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H7771.IH H7771 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 7771 IH (c) GOVERNMENT ENTITIES.—A government entity 1 may not recover fees pursuant to this section. 2 SEC. 9. BANKRUPTCY NONDISCHARGABILITY OF FEES AND 3 COSTS. 4 Fees or costs awarded against a party by a court for 5 the prosecution of any claim finally dismissed pursuant 6 to this Act, or any subpoena or discovery order quashed 7 pursuant to this Act, or any claim finally dismissed pursu- 8 ant to a State anti-SLAPP law, shall not be dischargeable 9 in bankruptcy under section 1328 or section 523 of title 10 11, United States Code. 11 SEC. 10. EXEMPTIONS. 12 (a) PUBLIC ENFORCEMENT.—Sections 4 through 8 13 of this Act shall not be available in any action brought 14 solely on behalf of the public or solely to enforce an impor- 15 tant right affecting the public interest. 16 (b) COMMERCIAL SPEECH.—This Act shall not apply 17 to any claim for relief brought against a person primarily 18 engaged in the business of selling or leasing goods or serv- 19 ices, if the statement or conduct from which the claim 20 arises is a representation of fact made for the purpose of 21 promoting, securing or completing sales or leases of, or 22 commercial transactions in, the person’s goods or services, 23 and the intended audience is an actual or potential buyer 24 or customer. 25 VerDate Sep 11 2014 16:16 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H7771.IH H7771 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 7771 IH (c) ‘‘SLAPP-BACK’’ SUITS.—This Act shall not be 1 available to dismiss any action or claim arising from a 2 claim that has been dismissed pursuant to this Act or to 3 a State anti-SLAPP law. 4 SEC. 11. DEFINITIONS. 5 In this Act: 6 (1) ACT IN FURTHERANCE OF THE RIGHT OF 7 FREE SPEECH.—The term ‘‘act in furtherance of the 8 right of free speech’’ includes but is not limited to— 9 (A) any written or oral statement made in 10 connection with an issue under consideration or 11 review by a legislative, executive, or judicial 12 body, or any other official proceeding author- 13 ized by law; 14 (B) any written or oral statement made in 15 a place open to the public or a public forum in 16 connection with an issue of public interest; or 17 (C) any other conduct in furtherance of 18 the exercise of the constitutional right of peti- 19 tion or the constitutional right of free speech in 20 connection with an issue of public interest. 21 (2) ACT OF PETITIONING THE GOVERNMENT.— 22 The term ‘‘act of petitioning the government’’ in- 23 cludes but is not limited to any written or oral state- 24 ment— 25 VerDate Sep 11 2014 16:16 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H7771.IH H7771 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 7771 IH (A) made or submitted before a legislative, 1 executive, or judicial body, or any other official 2 proceeding authorized by law; or 3 (B) any written or oral statement encour- 4 aging a statement before a legislative, executive, 5 or judicial body, or any other official proceeding 6 authorized by law. 7 (3) CLAIM.—The term ‘‘claim’’ includes any 8 civil lawsuit, claim, complaint, cause of action, cross- 9 claim, counterclaim, or other judicial pleading or fil- 10 ing requesting relief. 11 (4) GOVERNMENT ENTITY.—The term ‘‘govern- 12 ment entity’’ includes the United States, a branch, 13 department, agency, State, or subdivision of a State, 14 or other public authority. 15 (5) ISSUE OF PUBLIC INTEREST.—The term 16 ‘‘issue of public interest’’ includes an issue related to 17 health or safety; environmental, economic or commu- 18 nity well-being; the government; a public figure; or 19 a good, product or service in the market place. 20 ‘‘Issue of public interest’’ shall not be construed to 21 include private interests, such as statements directed 22 primarily toward protecting the speaker’s business 23 interests rather than toward commenting on or shar- 24 VerDate Sep 11 2014 16:16 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H7771.IH H7771 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 7771 IH ing information about a matter of public signifi- 1 cance. 2 (6) PERSONALLY IDENTIFYING INFORMA- 3 TION.—The term ‘‘personally identifying informa- 4 tion’’ means first and last name or last name only; 5 home or other physical address including temporary 6 shelter or housing and including a street name or 7 ZIP Code; full date of birth; email address or other 8 online contact information; telephone number; social 9 security number; internet protocol address or host 10 name that identifies an individual, or any other in- 11 formation that would serve to identify an individual. 12 (7) STATE.—The term ‘‘State’’ means each of 13 the several States, the District of Columbia, and any 14 commonwealth, territory, or possession of the United 15 States. 16 SEC. 12. CONSTRUCTION. 17 This Act shall be liberally construed to effectuate its 18 findings and purposes fully, except that the exemptions 19 shall be construed narrowly. 20 SEC. 13. RELATIONSHIP TO OTHER LAWS. 21 Nothing in this Act shall pree [Text truncated for display. Full text available on Congress.gov.]