Free Press Act of 2012 - Amends the federal judicial code to authorize a representative of the news media to file a special motion to dismiss any claim asserted against such representative in a civil action if the claim arises 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 (thereby establishing a judicial procedure to seek dismissal of what are commonly referred to as "Strategic Lawsuits Against Public Participation" [SLAPPs]).
Places the burden on the party asserting the claim, after such a motion is properly brought, to prove the claim is legally sufficient and supported by facts sufficient to sustain a favorable judgment. Requires the dismissal with prejudice of any such claim challenged with a motion to dismiss for which the party asserting the claim fails to meet that burden.
Prohibits such a special motion to dismiss from being filed against a claim: (1) brought by the federal government or a state attorney general, or (2) arising out of a statement offering or promoting the sale of the goods or services of the person making the statement.
Authorizes 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, to file a special motion to quash the request or order to produce the information. Places a similar burden of proof on the party making the request for such information, after a special motion to quash is properly brought, to show that the claim is legally sufficient and supported by appropriate evidence.
Permits a civil action in a state court that raises a claim arising out of speech on public issues to be removed to federal court by a party who seeks to file a special motion to dismiss asserting a colorable defense based on the Constitution or laws of the United States. Allows the removal of a state court proceeding to federal court by a party who seeks to file a special motion to quash, but only with respect to the proceeding to quash the request for personally identifying information and not the remainder of the civil action.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3493 Introduced in Senate (IS)]
112th CONGRESS
2d Session
S. 3493
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
August 2, 2012
Mr. Kyl introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
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.
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 ``Free Press Act of 2012''.
SEC. 2. SPECIAL MOTION TO DISMISS.
Part VI of title 28, United States Code, is amended by adding at
the end the following:
``CHAPTER 182--SPECIAL MOTION TO DISMISS
``Sec.
``4201. Special motion to dismiss.
``4202. Stay of discovery.
``4203. Exceptions for governmental litigation and commercial speech.
``4204. Interlocutory appeal.
``4205. Special motion to quash.
``4206. Removal.
``4207. Fees, costs, and sanctions.
``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.
``(b) Time Limit.--Unless the court grants an extension, a special
motion to dismiss under this section shall be filed--
``(1) not later than 45 days after the date of service of
the claim, if the claim is filed in Federal court; or
``(2) not later than 30 days after the date of removal, if
the claim is removed to Federal court under section 4206.
``(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.
``(d) Burdens of Proof.--
``(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).
``(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--
``(A) legally sufficient; and
``(B) supported by a prima facie showing, based on
admissible evidence, of facts sufficient to sustain a
favorable judgment.
``(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.
``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.
``(b) Limitation and Exception.--
``(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--
``(A) is requested by the party asserting the
third-party claim or cross claim; or
``(B) relates solely to the third-party claim or
cross claim.
``(2) Exception.--Upon motion and for good cause shown, a
court may order that specified discovery be conducted.
``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--
``(1) is brought by the Federal Government or the attorney
general of a State; or
``(2) arises out of a statement offering or promoting the
sale of the goods or services of the person making the
statement.
``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.
``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.
``(b) Burdens of Proof.--
``(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).
``(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--
``(A) legally sufficient; and
``(B) supported by a prima facie showing, based on
admissible evidence, of facts sufficient to sustain a
favorable judgment.
``(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.
``Sec. 4206. Removal
``(a) Special Motion To Dismiss.--
``(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.
``(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.
``(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.
``(b) Special Motion To Quash.--
``(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.
``(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.
``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.
``(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.
``(c) Exceptions.--
``(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.
``(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.''.
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.
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:
``182. Special motion to dismiss............................ 4201''.
(b) Interlocutory Appeals.--Section 1292(a) of title 28, United
States Code, is amended--
(1) in paragraph (3), by striking the period at the end and
inserting ``; and''; and
(2) by adding at the end the following:
``(4) Interlocutory orders granting or denying in whole or
in part special motions to dismiss under section 4201.''.
(c) Nondischargability of Fees and Costs.--Section 523(a) of title
11, United States Code, is amended--
(1) in paragraph (18), by striking ``or'' at the end;
(2) in paragraph (19), by striking the period at the end
and inserting ``; or''; and
(3) by inserting after paragraph (19) the following:
``(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.''.
SEC. 5. EFFECTIVE DATE; APPLICABILITY.
(a) Effective Date.--Except as provided in subsection (b), this Act
and the amendments made by this Act shall--
(1) take effect on the date of enactment of this Act; and
(2) apply to a claim filed on or after the date of
enactment of this Act.
(b) Claims Filed Before Enactment.--For a claim that was filed
before and is pending on the date of enactment of this Act--
(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; and
(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.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S5983-5984)
Read twice and referred to the Committee on the Judiciary. (text of measure as introduced: CR S5984-5985)
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