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EXAMINING H.R. 2304, THE ‘‘SPEAK FREE ACT’’ 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

AND CIVIL JUSTICE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

ON

H.R. 2304 

JUNE 22, 2016 

Serial No. 114–82 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

TRENT FRANKS, Arizona, Chairman 

RON DeSANTIS, Florida, Vice-Chairman 

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

TED DEUTCH, Florida 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

C O N T E N T S 

JUNE 22, 2016 

Page 

THE BILL 

H.R. 2304, the ‘‘SPEAK FREE Act of 2015’’ .......................................................... 3 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Chairman, Subcommittee on the Constitution and Civil 

Justice ................................................................................................................... 1 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 17 

The Honorable Blake Farenthold, a Representative in Congress from the 

State of Texas, and Member, Committee on the Judiciary .............................. 17 

WITNESSES 

Aaron Schur, Senior Director of Litigation, Yelp Inc. 

Oral Testimony ..................................................................................................... 33 

Prepared Statement ............................................................................................. 35 

Bruce D. Brown, Executive Director, The Reporters Committee for Freedom 

of the Press 

Oral Testimony ..................................................................................................... 41 

Prepared Statement ............................................................................................. 43 

Alexander A. Reinert, Professor of Law, Benjamin N. Cardozo School of Law 

Oral Testimony ..................................................................................................... 47 

Prepared Statement ............................................................................................. 49 

Laura Lee Prather, Partner, Haynes and Boone, LLP 

Oral Testimony ..................................................................................................... 66 

Prepared Statement ............................................................................................. 68 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee 

on the Constitution and Civil Justice ................................................................. 19 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 26 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of Jeremy B. Rosen, Partner, Horvitz & Levy LLP ........... 88 

Prepared Statement of the Motion Picture Association of America, Inc. ............ 99 

Response to Questions for the Record from Aaron Schur, Senior Director 

of Litigation, Yelp Inc. ......................................................................................... 104 

Response to Questions for the Record from Bruce D. Brown, Executive Director, The Reporters Committee for Freedom of the Press .................................. 109 

Response to Questions for the Record from Alexander A. Reinert, Professor 

of Law, Benjamin N. Cardozo School of Law ..................................................... 116 
(IV) 

OFFICIAL HEARING RECORD 

MATERIAL SUBMITTED FOR THE HEARING RECORD BUT NOT REPRINTED

Material submitted by the Honorable Trent Franks, a Representative in Congress 

from the State of Arizona, and Chairman, Subcommittee on the Constitution and 

Civil Justice. This material is available at the Subcommittee and can also be 

accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=105106 

Material submitted by the Honorable Steve Cohen, a Representative in Congress 

from the State of Tennessee, and Ranking Member, Subcommittee on the Constitution and Civil Justice. This material is available at the Subcommittee and 

can also be accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=105106 

Response to Question for the Record from Laura Lee Prather, Partner, Haynes and 

Boone, LLP. This material is available at the Subcommittee and can also be 

accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=105106 
(1) 

EXAMINING H.R. 2304, THE ‘‘SPEAK FREE ACT’’ 

WEDNESDAY, JUNE 22, 2016 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 1 p.m., in Room 210, 

Cannon House Office Building, the Honorable Trent Franks (Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, DeSantis, Goodlatte, Gohmert, 

and Farenthold. 

Staff Present: (Majority) John Coleman, Counsel; Tricia White, 

Clerk; (Minority) James J. Park, Chief Counsel; Matthew Morgan, 

Professional Staff Member; and Veronica Eligan, Professional Staff 

Member. 

Mr. FRANKS. The Subcommittee on the Constitution and Civil 

Justice will come to order, and without objection, the Chair is authorized to declare recesses of the Committee at any time. 

So good afternoon to all of you. The Subcommittee today will examine H.R. 2304, the ‘‘SPEAK FREE Act of 2015,’’ a bipartisan bill 

designed to protect Americans from meritless lawsuits that target 

their right to free speech, and their right to petition their government. 

The First Amendment states that, ‘‘Congress shall make no law 

respecting an establishment of a religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, 

or of the right of the people to peaceably assemble, and to petition 

the government for redress of grievances.’’ 

Those sacred rights, endowed by our Creator, and recognized by 

our Founding Fathers, place clear limitations on our Federal Government, and guarantee freedom of religion, speech, peaceable assembly, and the right of Americans to participate in their own government. 

History makes clear that when these rights are robustly defended, Americans are afforded the opportunity to pursue truth, 

and scientific advancement, to create a culture of innovation within 

our Nation, and to hold American government accountable. Without such protections, all other rights are at grave risk. 

George Washington recognized this risk when he proclaimed to 

the officers of the Army in 1783 that, ‘‘If men are to be precluded 

from offering their sentiments on a matter which may involve the 
2 

most serious and alarming consequences that can invite the consideration of mankind, reason is of no use to us. The freedom of 

speech may be taken away, and dumb and silent, we may be led 

like sheep to the slaughter.’’ 

Americans today still believe that free speech is foundational to 

freedom itself. According to a 2015 poll conducted by the Pew Research Center, 95 percent of Americans believe that people should 

be able to make statements that publicly criticize government’s 

policies. A majority of Americans, roughly 7 in 10, also considered 

it very important for people to be able to use the Internet without 

government censorship on matters of free speech. 

Despite the fundamental nature of these freedoms, and their importance in American life, Americans’ ability to exercise their First 

Amendment rights has been threatened by lawsuits called strategic 

lawsuits against public participation, or SLAPPs. 

These lawsuits, often brought by private parties, are filed against 

persons in retaliation for speaking out on a public issue or controversy. These kinds of lawsuits are solely intended to censor and 

intimidate critics by burdening them with expensive litigation in 

our court system. 

In response, 28 States, the District of Columbia, and one U.S. 

territory have enacted anti-SLAPP laws, with varying degrees of 

protection. One key feature found in most of these laws, however, 

is a special motion to dismiss a claim if it is based on an action 

related to protected speech, or the right to petition. 

For example, California, which enacted its anti-SLAPP law in 

1992, provides a special motion to strike a complaint that is filed 

against a person based on ‘‘an act of furtherance of a person’s right 

of petition or free speech under the United States or California 

Constitution, in connection with a public issue.’’ 

With decades of precedent at the State level, this hearing is intended to examine what similar protections are needed at the Federal level. Mr. Farenthold, of Texas, who is a Member of the House 

Judiciary Committee, introduced H.R. 2304, the ‘‘SPEAK FREE Act 

of 2015,’’ on June 1, 2015. 

This legislation, which currently enjoys broad bipartisan support, 

addresses SLAPPs by amending lawsuit rules to allow a person 

against whom a lawsuit is asserted to file a special motion to dismiss claims that ‘‘arise from an oral or written statement, or other 

expression, or conduct in furtherance of such expression, by the defendant in connection with an official proceeding, or about a matter 

of public concern.’’ 

Ladies and gentlemen, free speech is a vital component of government accountability, public enlightenment, and the collective 

pursuit of truth itself. My hope is that today’s hearing will shed 

light on the kinds of SLAPPs filed, as well as how this bill would 

address the problem. 

And I would like to thank our witnesses for being here, and I 

look forward to their testimony. And I would now yield to the distinguished gentleman from Virginia, the Chairman of the full Committee, Mr. Goodlatte. 

[The bill, H.R. 2304, follows:] 
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Mr. GOODLATTE. Well, thank you very much, Mr. Chairman. I 

have a brief opening statement, then I would like to yield to the 

gentleman from Texas, Mr. Farenthold, for an opening statement 

on his part. He is a Member of the full Judiciary Committee, but 

not the Subcommittee, and he has been integrally involved in this 

issue. 

It is clear that our Founders believed that the free expression of 

ideas are integral to the wellbeing of our Nation. John Adams, in 

his writing on the importance of the press, for example, states: 

‘‘Care has been taken that the art of printing should be encouraged, and that it should be easy and cheap and safe for any person 

to communicate his thoughts to the public. 

‘‘And you, Messieurs printers, whatever the tyrants of the earth 

may say of your paper, have done important service to your country 

by your readiness and freedom in publishing the speculations of the 

curious. 

‘‘The stale, impudent insinuations of slander and sedition are so 

much the more to your honor, for the jaws of power are always 

opened to devour, and her arm is always stretched out, if possible, 

to destroy the freedom of thinking, speaking, and writing.’’ 

In the digital age, we continue to witness our world impacted by 

what one Federal district court judge has called ‘‘the most 

participatory marketplace of mass speech ever seen.’’ Indeed, the 

Internet provides a nearly unlimited lowcost forum for all kinds of 

constitutionally-protected communication. 

But within the context of lawsuits referred to as strategic lawsuits against public participation, or SLAPPs, the cost of Internet 

expression protected by the First Amendment is on the rise. Today’s hearing, I hope, will examine the most common kinds of 

SLAPPs heard in Federal court, as well as their impact on the 

right to free expression, and the right to petition the government. 

I look forward to today’s discussion of the ‘‘SPEAK FREE Act of 

2015,’’ and I would like to thank all the witnesses for their testimony. And it is now my pleasure to yield to the gentleman from 

Texas, Mr. Farenthold. 

Mr. FARENTHOLD. Thank you, Chairman Goodlatte, and I will be 

brief as well. I think you hit on the most important part now. Pretty much everybody with a computer who can make it to a 

Starbucks is a publisher now, and we have the greatest marketplace of ideas in the world on the Internet. 

We have got a sharing economy, and an economy based on people 

making decisions about what to purchase online, where to visit, 

where to go to dinner, where to go to lunch, all driven by reviews 

written by folks just like you and me. And we have got a group of 

folks out there who are abusing the legal system by saying, ‘‘Look, 

if they post something bad about us, let’s sue them, and cost them 

tens of thousands of dollars to get that suit down.’’ 

It is no good having a site with reviews on it if all the reviews 

are positive, and the people posting negative reviews are silenced. 

What this bill does, what the SPEAK FREE Act does, is make 

it easier for those who are victimized by abusive lawsuits to silence 

their voices to end this early on in the litigation proceeding, before 

they rack up thousands or tens of thousands of dollars in legal fees. 
18 

I think this is an important piece of legislation to protect the 

First Amendment rights, and carry forth the vision of our Founding 

Fathers that everybody have a voice, and everybody be heard with 

their truthful, honest, good-faith reviews. And again, thank you for 

yielding, and I look forward to hearing the testimony. I yield back. 

Mr. FRANKS. And I thank the gentleman. Without objection, 

other Members’ opening statements will be made part of the 

record. 

[The prepared statement of Mr. Cohen follows:] 
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[The prepared statement of Mr. Conyers follows:] 
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*Note: The submitted material is not printed in this hearing record but is on file with the 

Subcommittee, and can also be accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=105106 

Mr. FRANKS. Now before I introduce the witnesses, I would like 

to submit several items into the record. 

The first submission includes a letter, a statement, and an L.A. 

Times editorial from the Public Participation Project in support of 

H.R. 2304; a second is a letter from law professors in support of 

the bill. 

Third is a joint letter in support of the bill from several Internetbased companies and related businesses. 

Fourth is the written testimony of George Freeman, executive director of the Media Law Research Cente. 

Fifth is a statement of David Diesenfeld, who is an attorney in 

California, in support of the bill. 

Sixth is a written statement from Tom O’Brian, Deputy General 

Counsel of Glassdoor Incorporated, in support of the bill. 

Seventh is a letter in support of the bill from the Internet Association. 

Eighth is a statement from Tracy Rosenberg, executive director 

of the Media Alliance, in support of the bill. 

The ninth and last is a statement from Daniel O’Connor, vice 

president of Public Policy at the Computer and Communications 

Association’s support of the bill. 

And without objections, these statements will be entered into the 

record.* 

So now let me introduce our witnesses. Out first witness is Aaron 

Schur. Mr. Schur is the senior director of litigation at Yelp Incorporated. 

Our second witness is Bruce D. Brown. Mr. Brown is the executive director of the Reporters Committee for Freedom of the Press. 

Our third witness is Alexander Reinert. Mr. Reinert is a professor of law at the Benjamin N. Cardozo School of Law in New 

York City. 

Our fourth and final witness is Laura Prather. Ms. Prather is a 

partner in the litigation practice group in the Austin office of 

Haynes and Boone, LLP. 

Each of the witnesses’ written statements will be entered into 

the record in its entirety, and I would ask that each witness summarize his or her testimony in 5 minutes or less; and to help you 

stay within that time, there is a timing light in front of you. The 

light will switch from green to yellow, indicating that you have 1 

minute to conclude your testimony. When the light turns red, it indicates that the witness’ 5 minutes have expired. 

So before I recognize the witness, it is the tradition of the Subcommittee that they be sworn, so if you would please all stand to 

be sworn. 

Do you solemnly swear that the testimony that you are about to 

give will be the truth, the whole truth, and nothing but the truth, 

so help you God? You may be seated. Let the record reflect that the 

witnesses answered in the affirmative. 

And I will now recognize our first witness, Mr. Schur. And, Mr. 

Schur, if you would make sure you turn that microphone on before 

speaking, sir. 
33 

TESTIMONY OF AARON SCHUR, SENIOR DIRECTOR OF 

LITIGATION, YELP INC. 

Mr. SCHUR. Thank you very much, and good afternoon, Chairman Franks, and Members of the Subcommittee. Thank you for the 

opportunity to appear before you to discuss the ‘‘SPEAK FREE Act 

of 2015.’’ My name is Aaron Schur, and I am the senior director 

for litigation at Yelp, an online platform dedicated to connecting 

people with great local places. In this role, I am responsible for 

Yelp’s litigation defense, which in many cases involves Yelp being 

sued solely for its role in allowing consumers to speak out about 

local businesses online, including cases where users themselves are 

named as our codefendants. 

I am also responsible for making sure Yelp appropriately evaluates and makes proper objections to subpoenas we receive each 

month from plaintiffs seeking Yelp’s users’ personal information in 

order to press legal claims, often without substance. Additionally, 

I help our user support team respond to users who have been sued, 

and aid them in finding counsel to take up their cases. This is particularly difficult, and sometimes impossible, when a defendant has 

limited or even average means. 

People frequently share their opinions and experiences, including 

about local businesses, with their friends and family. For an offline 

example, imagine the following scenario: a new restaurant opens 

up in your neighborhood, and you are first in line to try it. After 

dinner, you leave the restaurant happy and full. Your food was 

great, the staff was responsive, and the atmosphere was lively. 

A week later, when your friends ask you where you should go to 

dinner, you tell them about your experience at this restaurant, and 

you recommend that they should go, too. Online, this type of feedback is amplified. Your review of a restaurant or any number of 

services or products can now be read by hundreds, or even thousands or millions of others. 

Just because users have access to a larger audience online, which 

sites like Yelp enable, it does not mean they lose their right to free 

speech. Yet some businesses use strategic lawsuits against public 

participation, the meritless lawsuits that we call SLAPPs, to silence their critics, diminishing their ability to exercise their First 

Amendment rights. 

The SPEAK FREE Act seeks to prevent this, ensuring that honest speakers have a way to quickly and economically end meritless 

lawsuits targeting them for what they have said, regardless of 

where they live, or whether the claims at issue are considered 

under Federal or State law. 

More than 100 million reviews have been posted to Yelp, and 

with people writing and reading reviews at an increasing rate, 

about half of these were written over the last 2 years. On Yelp, 

businesses also have the opportunity to publicly or directly respond 

to their customers, analyze consumer feedback, and share their 

own experiences and stories. 

The interaction between business and consumer is a laboratory 

of speech in response to speech, exactly what the First Amendment 

is supposed to protect. But in recent years, Yelp has observed an 

increase in the number of businesses using SLAPPs to silence their 

critics. We also regularly hear from users Nationwide who have 
34 

been targeted for their honest opinions about industries across the 

spectrum, including pet sitters, flooring companies, and dentists. 

Here is an example of a threat a user from New York reported 

to us less than a week ago: ‘‘I wrote a review on a dentist’s page. 

He sued me for that review for $100,000. Although what I wrote 

was true, I agreed to take that review out because I cannot afford 

the lawsuit fee. The dentist said he would stop the lawsuit if I removed the review.’’ 

While statements of honest opinions and truthful experiences are 

not bases for liability in this country, unfortunately we have seen 

that even the simple threat of a lawsuit is a highly effective tool 

to get users to remove their reviews from consumer advocacy sites 

like Yelp. The specter of lopsided litigation against an opponent 

with better financial resources is simply more than the average 

person is willing to take on, especially as winning provides no 

mechanism to recoup legal expenses. 

It is simply easier for the average person to take down his or her 

review, a fact some businesses and their lawyers know full well. 

These businesses face very little risk in bringing meritless lawsuits 

with solely the goal of removing information from public view. 

Such actions have a chilling effect on the targeted consumer, who 

is less likely to share his or her experiences in the future, and may 

also ward off other consumers who think that the potential cost of 

speaking their mind is too great. By discouraging public discourse, 

these businesses artificially inflate their reputation, leading to a 

skewed and unbalanced marketplace. 

Those people able and willing to defend their cases must still 

bear the burden of substantial legal fees before their words are vindicated in court. And there is seldom a mechanism to recover those 

fees, leaving them doubly harmed, first by the original poor service 

received from the business, and second, by the financial drain of a 

lawsuit. 

Thus the fee-shifting component of the SPEAK FREE Act is of 

critical importance, as it deters meritless cases in the first instance, incentivizes attorneys to take cases on behalf of those who 

could not otherwise afford a defense, and enables those who have 

the means to defend themselves, an opportunity to be made whole 

when they prevail in court. 

When a business uses a SLAPP to threaten or intimidate a consumer, it discourages public discourse and harms the online information ecosystem. The benefit of transparency, which is what online review platforms provide, is having a more perfect feedback 

loop. Consumers share their experiences with businesses, and businesses engage with their consumers in efforts to understand what 

they are doing right, or should consider improving. 

In conclusion, Mr. Chairman, Yelp is dedicated to protecting free 

speech rights online. We strongly support the SPEAK FREE Act, 

because it strengthens those protections, and look forward to working with you and other Members of this Committee as this legislation moves forward. I welcome your questions on this important 

topic. 

[The prepared statement of Mr. Schur follows:] 
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Mr. FRANKS. Well, thank you, Mr. Schur. And I now recognize 

our second witness, Mr. Brown. And sir, you would also turn on 

that microphone. 

TESTIMONY OF BRUCE D. BROWN, EXECUTIVE DIRECTOR, THE 

REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 

Mr. BROWN. Thank you, Mr. Chairman, and Members of this 

Committee. I am Bruce Brown, executive director of the Reporters 

Committee for Freedom of the Press. The Reporters Committee has 

been, since 1970, defending the First Amendment rights of journalists and news organizations. We typically get involved in SLAPP 

cases when we do pro bono friend of court or amicus briefs in different cases around the country where SLAPP statutes are at 

issue, and I have detailed in my written statement some of those 

cases in recent years. 

I was last before the Judiciary Committee in 2009, testifying in 

support of legislation to counter the threat from libel tourism that 

became known as the SPEECH Act. And I would suggest that the 

SPEECH Act is a good model for what Congress can do in the antiSLAPP area. 

In the libel tourism area, there were concerns that libel litigation 

in foreign courts was being used strategically to deter the exercise 

of First Amendment rights. Congress then initiated and enacted a 

series of reforms to make libel tourism less attractive to plaintiffs 

who are taking advantage of an end-run around the First Amendment and due process. It provides defendants with a mechanism to 

seek to declare those judgments unenforceable in the United 

States. It provides for attorneys’ fees to a defendant who is successful in doing so. And it contains a removal provision for enforcement 

actions brought in State court. 

The point was not that every foreign lawsuit arising out of 

SPEECH Activity is inherently meritless, and must be stopped. 

Rather, the SPEECH Act contains provisions to allow the plaintiff 

who has a legitimate case to prevail. And the law did not, in its 

final form, authorize counter-suits, as some had initially suggested. 

Rather, by establishing some modest new rights, Congress tilted 

the scales slightly more in the direction of protecting speech. And 

generally speaking, with this new deterrence in place, we are hearing a lot less about libel tourism today. 

Congress should take similar action through H.R. 2304, an antiSLAPP legislation, in order to make plaintiffs think twice before 

filing a meritless suit attacking speech on a matter of public concern. By creating new substantive rights to protect expression, 

Congress would be doing with domestic cases what it did with foreign cases in the SPEECH Act. 

As I noted in my written submission, the availability of antiSLAPP remedies in Federal court diversity cases, along with interlocutory review, are two key provisions that would strengthen the 

ability of all speakers, from the kinds of publishers and journalists 

we might work with at the Reporters Committee, to all Internet 

bloggers, community activists, and other speakers, to fend off 

meritless cases while at the same time ensuring that cases with 

merit are not unreasonably blocked from moving forward. 
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Before coming to the Reporters Committee, I defended a city 

paper reporter sued by Washington Redskins owner Dan Snyder 

for libel. Along with counsel representing the newspaper, we believe the newly-enacted, the then-newly-enacted D.C. anti-SLAPP 

bill, and our motion under the new law, led to Mr. Snyder’s rather 

abrupt, excuse me, decision to withdraw his suit before his allegations could be tested in court and subject to the SLAPP back. The 

deterrent effect of these laws can be very significant, even to Mr. 

Snyder. 

Thank you again for the opportunity to testify, and I look forward to answering your questions here, or by supplementing the 

record after the hearing. Thank you. 

[The prepared statement of Mr. Brown follows:] 
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Mr. FRANKS. Thank you, sir. And I would now recognize our 

third witness, Mr. Reinert. And, sir, make sure that microphone is 

on. 

TESTIMONY OF ALEXANDER A. REINERT, PROFESSOR OF LAW, 

BENJAMIN N. CARDOZO SCHOOL OF LAW 

Mr. REINERT. It is. Thank you, Chairman Franks, Members of 

the Subcommittee. Good afternoon. I am Alex Reinert; I am a law 

professor at the Benjamin N. Cardozo School of Law. Thank you for 

inviting me to testify here today regarding H.R. 2304, the ‘‘SPEAK 

FREE Act of 2015.’’ 

Mr. Chairman, I like Yelp; I use it. I am sure James Madison 

would have liked it, too. I cannot imagine he would have liked it 

so much that he would have been willing to throw overboard Article III, the Seventh Amendment, and State sovereignty on the basis 

of a potential problem that has been supported only by anecdotes, 

and neither should this Subcommittee. And respectfully, the Constitution does not permit you to do so. 

So I want to start with the constitutional problems with this Act. 

First, the legislation runs afoul of the Constitution on jurisdictional 

grounds. Section 4206(a) authorizes removal from State to Federal 

court of purely State law claims in the absence of diversity of citizenship between the parties. 

There is no beating around the bush with respect to this provision. Congress cannot expand district court jurisdiction beyond the 

bounds of Article III, section 2; and Section 4206(a) does just that. 

Removal of Federal question or diversity claims would be permissible, but that is already covered by 28 USC, Section 1441. So to 

the extent that 4206(a) expands removal power to State law claims 

between non-diverse parties, it is unconstitutional, flatly. 

Section 4206(b) is just as problematic, if not more, because it appears to give non-parties the power to remove a case from State 

court to Federal court if that non-party’s personal identifying information is sought by one of the parties. 

Aside from the intrusion on litigant autonomy, let’s recall that if 

I am a defendant, and I want to remove a case from State court 

to Federal court, I cannot do it by myself, I need the other defendants to agree. That is because we care about litigant autonomy. 

So first of all, aside from the intrusion on litigant autonomy occasioned by a non-party removing the case, there is simply no basis 

for Federal jurisdiction extending to a non-party’s objection to particular discovery being sought in State court. 

The constitutional difficulties are not just jurisdictional, they are 

substantive as well. The special motion to dismiss, in Section 

4202(a), contemplates dismissal with prejudice, pre-discovery, if the 

plaintiff cannot meet the burden of showing ‘‘that the claim is likely to succeed on the merits.’’ 

I am aware of no other instance in which a plaintiff has been 

asked to demonstrate a likelihood of success on the merits in order 

to survive a motion to dismiss. That is because it is unconstitutional. The standard at summary judgment after discovery, the 

well-worn standard on summary judgment after discovery, is that 

a plaintiff need only show that a reasonable jury could find for her. 

Not that a reasonable jury is more likely than not to find for her. 
48 

And so the reason that the proposed standard has never been 

used in Federal court to filter a claim at the pre-discovery stage is 

because it is inconsistent with the Seventh Amendment, as the District of Minnesota has said recently, and as State courts have 

agreed with respect to State anti-SLAPP laws with respect to their 

own State protections of the right to jury trial. 

There also are several difficult constitutional questions about 

whether Congress has the authority to accomplish the substantial 

displacement of State law and authority that would accompany 

H.R. 2304. I have covered these in detail in my prepared written 

remarks, and I will not linger too much on them. 

But I will say, in Mr. Brown’s written statement, he has testified 

that he supports H.R. 2304 because he thinks that the substantive 

laws of the States that have anti-SLAPP laws should be accorded 

respect in Federal court. That is the opposite of what H.R. 2304 

does. It does not accord respect to any State law. It displaces all 

State law regarding SLAPPs. 

So let us assume that the constitutional objections can be overcome somehow, which I think is doubtful, but possible. Still, one 

must ask whether this displacement of State law inherent in H.R. 

2304 is appropriate or necessary from a policy perspective. 

And I will say, the stated rationale of its proponents is that this 

is merely taking anti-SLAPP laws and putting them at the Federal 

level. This is not a traditional State anti-SLAPP law; it covers 

grounds that are far beyond the original definition of a SLAPP suit; 

and the proponents base their support for the legislation on mere 

anecdotes. 

So with respect, a statute that unconstitutionally expands the jurisdiction of the Federal courts, significantly burdens and imperils 

important civil rights and allied litigation, imposes new and unprecedented procedures in Federal court, and displaces State sovereignty, should not advance based on anecdotes alone. 

Once again, I thank you for the opportunity to testify here today, 

and I look forward to your questions. 

[The prepared statement of Mr. Reinert follows:] 
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Mr. FRANKS. Thank you, sir. And I will now recognize our fourth 

and final witness, Ms. Prather. And, Ms. Prather, if you would turn 

your microphone on. 

TESTIMONY OF LAURA LEE PRATHER, PARTNER, 

HAYNES AND BOONE, LLP 

Ms. PRATHER. Mr. Chairman, Members of the Subcommittee, my 

name is Laura Prather. I am a partner with the law firm of 

Haynes and Boone in Austin, Texas, and a board member of the 

Public Participation Project, a nonprofit organization devoted to 

educating the public about SLAPP suits, and advocating for the 

passage of anti-SLAPP laws. 

I am testifying here on behalf of the Public Participation Project 

today, and I thank you for the opportunity to testify in support of 

H.R. 2304, the ‘‘SPEAK FREE Act of 2015.’’ I have been practicing 

law for 25 years, and the vast majority of my career has been devoted to defending First Amendment rights at the courthouse and 

at the legislature. 

In recent years, I have spent a significant portion of my time defending SLAPP victims. Seeing the frequency with which SLAPP 

suits were filed, I also took part in the passage of the Texas Citizens Participation Act, their version of an anti-SLAPP statute. 

This month marks the fifth anniversary since that passage. The 

Texas experience demonstrates, and consistent with congressional 

experience here, that anti-SLAPP laws are good public policy. They 

help one who may not have means to fight meritless lawsuits have 

a system in place to do so. They promote judicial economy by getting rid of meritless claims that currently clog up the legal system, 

and they promote free speech rights, civic engagement and public 

discourse. 

First Amendment rights should not depend on where one resides, 

or the type of claim that is filed against them. There are three primary reasons for the need for passage of a Federal anti-SLAPP 

law. 

The first is, the patchwork for State protection that currently 

exist invites forum shopping. 

The second is the fact that there is a circuit split right now on 

whether Federal courts will apply State anti-SLAPP laws in diversity cases; and the third is the fact that current State anti-SLAPP 

laws simply do not apply to meritless Federal claims. The passage 

of the Federal anti-SLAPP law would provide consistency and predictability in the protection of First Amendment rights. 

Let’s start with the patchwork. Members of this Committee are 

from a number of different states. Some states have narrow antiSLAPP laws, some have none, some have broad anti-SLAPP laws. 

What happens in those scenarios? It encourages people to forum 

shop, like the Dan Snyder example that Mr. Brown pointed out. He 

filed a lawsuit in New York, against a hedge fund that owned the 

Washington City Paper, after admitting that he had never even 

read the article at issue in the lawsuit. That lawsuit was filed in 

New York to avoid D.C.’s anti-SLAPP law. 

Ultimately, he had to refile in D.C., and then he dismissed without there ever being a decision on the application of the D.C. law. 

There are countless examples of cases like that where people spe-
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cifically choose a State in which there is no anti-SLAPP law, or a 

weak anti-SLAPP law, in which to file their claims. 

Second, there is now a circuit split with regard to whether State 

anti-SLAPP laws apply in Federal diversity cases. Up until recently, every circuit that had decided the issue decided that antiSLAPP laws were substantive, and they should be applied to State 

law claims in diversity cases. The D.C. Circuit decided differently. 

The U.S. Supreme Court earlier this year in the Mebo case, denied 

the petition to review on that issue, leaving it uncertain, and leaving us with more inconsistency and questions about the application 

of First Amendment rights for our citizens. 

Third issue is the issue of Federal claims. There is currently no 

protection for those creative SLAPP claims that come in the form 

of a Federal cause of action. By definition, there is no particular 

cause of action. It is not limited by anything other than the fertile 

minds of the lawyers and the parties to who bring the claims. So 

what we are seeing now is, instead of filing a State law defamation 

claim, or an invasion of privacy claim, what we are seeing is people 

using very creative intellectual property claims in Federal forums 

so as to avoid anti-SLAPP statutes. 

In addition, like SLAPP claims that are not in any one particular 

form or fashion, SLAPP victims also are not any one form or fashion as well. You have SLAPP victims that are individuals, homeowners that are getting sued by their homeowner’s associations. 

You have SLAPP victims that are businesses. Better Business 

Bureau gets sued regularly for their reliability reports. Politicians 

get sued for their campaign literature. The media gets sued for investigative reporting that they have done where they have uncovered significant amounts of Medicaid fraud. 

Whistleblowers get sued very, very frequently; they get sued for 

shining the light on things like—in Texas we had a case where a 

lobbyist-turned-whistleblower shone the light on a $110 million in 

no-bid contracts that were being offered by a State official. That led 

to an FBI investigation, a Public Integrity Unit investigation, and 

a State Auditor’s Office investigation. 

What ended up happening? The whistleblower got sued for $90 

million by the company that was receiving the no-bid contracts. 

The anti-SLAPP law protected that whistleblower. 

In addition, trial lawyers. Trial lawyers get sued, often for statements that they make to the media, or for complaints that they file 

on behalf of their clients. Trial lawyers use anti-SLAPP laws to defend against those cases. We had a case in Texas involving a media 

report on Medicaid fraud. Not only was the media sued, but the individual plaintiff’s lawyer who was seeking class-action plaintiffs 

was sued. Both parties used the anti-SLAPP statute to get rid of 

the lawsuit. 

This is a real problem; it is not anecdotal; it is a real problem. 

This happens on a daily basis. This is a nonpartisan issue, it is a 

both-sides-of-the-aisle issue, and it is one that the American Bar 

Association, academics, domestic violence groups, and organizations 

from the right and the left side of the aisle have come forward to 

support. 

I applaud this Committee for hearing this important matter, and 

I am happy to answer any questions the Committee has. 
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**Note: This witness statement is not printed in its entirety. The complete statement is available at the Subcommittee and can also be accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=105106 

[The prepared statement of Ms. Prather follows:]** 
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Mr. FRANKS. I thank all the witnesses for their testimony. We 

will now proceed under the 5 minute rule with questions, and I will 

begin by recognizing myself for 5 minutes. 

And Ms. Prather, I would like to begin with you. You mentioned 

that State laws, State anti-SLAPP laws, do not protect against 

Federal claims. I think, to paraphrase your testimony, you said it 

is limited only to the imagination and the fertile minds of the lawyers, which is a pretty broad spectrum. 

Can you give us examples of SLAPP claims being filed in Federal 

courts? It is that something that is a ubiquitous practice, or is it 

something that is beginning now, or how is that proceeding? 

Ms. PRATHER. Thank you, Mr. Chairman. It is something that is 

an increasing problem, to tell you the truth. And most of the time, 

not all the time, but most of the time you are looking at intellectual 

property claims. 

Like Lanham Act claims, where people are saying, ‘‘This is a 

false designation of origin, or an unfair competition claim, when in 

reality it is a defamation claim dressed up like Lanham Act claim. 

So you have things like, you know, doctors whose theories have 

been debunked, and are suing other doctors for debunking those 

theories, and then suing them under the Lanham Act to avoid 

State anti-SLAPP laws. You have situations like the City of 

Inglewood, where a politician is not terribly enamored by the way 

in which his image has been depicted on YouTube, based on video 

that was from open meetings. 

And because there is, you know, really no claim for defamation 

for accurately portraying videos of an open meeting, instead, the 

claim becomes a copyright claim, an infringement claim, because 

the city owns the copyright to the video of the open meeting. 

Similar situations where you have individuals who are of substantial means, who may not like still photos that have been posted 

online about them. We have got a case, the Katz v. Chevaldina 

case, in which a Miami Heat minority investor and commercial real 

estate tycoon sued a disgruntled former tenant who had put some 

photos online that had been taken from a news article, and he 

made some comments about the ill treatment that they had received. 

Instead of suing that individual for defamation, Katz went and 

purchased the rights to the photos, and then sued for copyright infringement instead. This happens fairly frequently. Civil RICO is 

another area in which there has been a significant amount of Federal claim to avoid to anti-SLAPP law protections. 

Mr. FRANKS. Well, thank you. Your testimony is a strong indication of how fertile sometimes those minds really are. Mr. Schur, in 

your experience, what elements of State anti-SLAPP laws act as to 

deterrents to claims filed primarily to intimidate? I mean, I know 

Yelp users essentially sometimes are intimidated related to their 

reviews. Can you speak to the SPEAK FREE Act? Would it have 

a deterrent effect? 

Mr. SCHUR. Excuse me, I believe so. I think that any strong antiSLAPP law has essentially four main components, which are all 

present in the SPEAK FREE Act. A sufficiently broad scope of protected speech to encompass all the types of claims, which is really, 

as has been mentioned, only limited to the fertile mind of the law-
81 

yers bringing them. Requirement that the plaintiff have facts before they enter the courtroom, to prove up the merit of their claims. 

An attorneys’ fees provision, so that the person who prevails on 

their anti-SLAPP motion can be made whole following those initial 

proceedings, As well as an interlocutory appeal process to make 

sure that a detrimental decision can be corrected on appeal so that 

the speech is not chilled by the continuation of a lawsuit that is 

meritlessly challenging free speech. 

Mr. FRANKS. Well, thank you. And Mr. Brown, speaking of the 

interlocutory appeal provision in the SPEAK FREE Act, can you 

express your opinion on the importance of that, or the significance 

of it one way or the other? 

Mr. BROWN. Sure, of course. Sorry, thank you. Of course. The interlocutory appeal provision is crucial for a couple of reasons. 

One, as Professor Reinert noted—you know, to me and to those 

of us supporting this legislation—it is very important to conceive 

of the rights that anti-SLAPP laws create as being substantive in 

nature, that they are akin to the immunities that are accorded to 

government officials when they are sued, for example, under Section 1983, and those officials have the right to take an interlocutory review. 

And the whole point of the interlocutory review provision is because these rights are akin to an immunity from suit, unless you 

have the chance to get in front of an appellate court prior to trial. 

Then the right is effectively denied. And so the interlocutory provision is essential to the overall architecture of the substantive 

rights. 

And in this area of First Amendment law, there is an additional 

reason why interlocutory review is very crucial. And I know this 

Committee has a submission from George Freeman, who is the executive director of the Media Law Research Center. And they have 

for years done a lot of empirical work on what happens when adverse decisions from a trial court go up to an appeals court for review. And those numbers are rather astonishing in this area of 

First Amendment law. 

The Committee will see that through the decades, close to 70 percent of these adverse decisions from below get reviewed or overturned one way or another on appeal. And so in the First Amendment area, there is this additional reason why interlocutory appeal 

is so important, because of the role that Federal—excuse me, that 

appellate court judges have played in making sure that First 

Amendment rights are protected at the trial court stage. Thank 

you. 

Mr. FRANKS. Well, thank you all very much, and I will now yield 

to the gentleman from Texas, Mr. Gohmert, for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman, and I thank each of 

the witnesses for being here. I know you are not here for the pay 

but—I continue to have concerns anytime it may appear that we 

are usurping State government authority. I think we have got diversity, that we have got clear interest. 

But someone that has been very involved in this legislation is my 

friend from Texas, Mr. Farenthold. And I will continue to study the 

bill, and seek out answers to my concern, but I would like to yield 

the rest of my time to Mr. Farenthold. 
82 

Mr. FARENTHOLD. Thank you, Mr. Gohmert, and I want to thank 

our witnesses for being here as well. And Ms. Prather, you are a 

fellow Texan. Can you tell me a little bit about how the law has 

worked in Texas? I mean, what was the timeframe and expense involved in defending a lawsuit before and after the anti-SLAPP statute was enacted in Texas? 

Ms. PRATHER. Thank you, Congressman Farenthold. The statistics say that an average defamation-type lawsuit in Texas would 

last about 6 years, prior to the passage of anti-SLAPP. Now, we are 

looking at months, rather than years. It is a significant difference 

when you are dealing with a meritless claim. Obviously, if there is 

a meritorious claim, that claim goes forward. But if it is a meritless 

claim, it unburdens the judicial system by getting rid of the 

meritless claims in a swift manner. 

Mr. FARENTHOLD. Let’s talk about that for a second. Some of the 

critics of this say, ‘‘All right, what do you do when somebody has 

actually come after you with something that is untrue?’’ Let’s say 

this whole Congress thing does not work out for me, and I decide 

to open Blake’s Bistro. 

To me, it is pretty clear that if I sued somebody for saying, ‘‘Your 

restaurant sucks,’’ that would be their opinion, and it would be protected speech, and that would be a meritless lawsuit. But if somebody would come up and say, ‘‘Oh,’’ you know, ‘‘Blake’s served me 

a chicken-fried steak with a roach right in the middle of the cream 

gravy,’’ that is a statement of fact; and if it is not true, I still want 

to have a way to deal with that through litigation. 

Can you assure me that this legislation would still protect me 

from my roach liar? 

Ms. PRATHER. Absolutely. I mean, there is nothing in this law, 

or in this bill, that prevents a meritorious claim from going forward. I think a number of the examples that have been given on 

the other side are hypothetical examples. There has not been cited 

a single meritorious case that was not allowed to go forward as a 

result of any sort of an anti-SLAPP law. You simply have to get 

over the initial hurdle, which you should have done before you filed 

the lawsuit, of being able to establish the facts that you are likely 

to be able to succeed on the merits. 

Mr. FARENTHOLD. And so let me go back and talk of practical application. Because a lot of this is really amplified by the online 

community, and most online services that do reviews—I mean, 

Yelp comes to mind as a leader in that, as does Glassdoor, Trip Advisor, even the reviews on Amazon—to me, it seems a common feature among those that the opportunity for a business that feels like 

they have been lied about, or has a different opinion about a review, to post something themselves providing an alternative way 

for them to be heard as well, without going through a lawsuit. 

Yet, you have got big companies that say, ‘‘We do not want anything,’’ or even small businesses saying, ‘‘We do not want anything 

about us. We are going to go after him.’’ Can you talk a little bit 

about what other avenues besides a lawsuit are available to somebody who feels like his or her business has been abused online? 

Mr. SCHUR. Sure. I mean, as the Supreme Court said almost 90 

years ago, if there is speech that you do not like, the remedy for 

that is more speech, not enforced silence. At Yelp, we are firm be-
83 

lievers in that, which is why we allow businesses, free of charge, 

to respond to any review, and that appears directly adjacent to the 

original review. 

We certainly never recommend litigation as a substitute for customer service. If you have one or two reviews, probably nobody is 

focusing on it as much as you, the business owner. If you have multiple critical reviews, more than that, then maybe you need to take 

a hard look at your business, and see if maybe somebody is pointing something out to you. In the case where someone does really 

feel the need to press litigation, certainly that is their right, but 

the case should have merit. Any case should have merit before you 

walk through the courtroom door, and the SPEAK FREE Act does 

nothing to prevent cases of merit from moving forward. 

Mr. FARENTHOLD. All right. And finally, Mr. Reinert, I didn’t 

want to—oh, I am sorry, I am out of time. If we get a second round, 

I will come back to you; I apologize. And I see I am out of time, 

and I yield back. 

Mr. FRANKS. I thank the gentleman that is giving the Chairman 

a hint that he would like a second round. And so with that, I think 

we will go ahead and do that. And, Mr. Gohmert, did you have 

questions? I will yield to the gentleman from Texas first. 

Mr.GOHMERT. Thank you. I would just like to ask one question 

before I yield. You know, I have seen the concern that without antiSLAPP laws in Federal court, it could lead to forum shopping. But 

if forum fits, I mean, is there is anything wrong with choosing the 

best forum for your lawsuit? 

Mr. REINERT. If I could answer that, Mr. Gohmert. 

Mr. GOHMERT. Sure. 

Mr. REINERT. Right, that is the principle of federalism; that is 

the principle of concurrent jurisdiction; and that is the idea, which 

is that States get to experiment with the substantive laws that 

they think are best. 

And so when I hear both Ms. Prather and Mr. Brown say that 

this is about Erie—remember, Erie doctrine is about the Rules of 

Decision Act, and what does the Rules of Decision Act say? The 

Rules of Decision Act says State substantive law should govern. 

That is not what this statute does. So, if that is the argument, I 

am confused. I mean, normally when there is a circuit split about 

an Erie question, the Supreme Court resolves it. 

Mr. GOHMERT. I want to yield the rest of my time to Mr. 

Farenthold. Thank you. 

Mr. FARENTHOLD. Thank you, and I do not want to seem like I 

am ignoring your concerns that you raised, about third parties, for 

instance being able to jump in. But, you know, let’s suppose I have 

posted on a semi-anonymous site like, you know, Glassdoor. I do 

not know if you are familiar with this, an employee can post reviews of employers anonymously to the public, but Glassdoor 

knows who they are. So if a plaintiff were to sue Glassdoor to try 

to get my personal information, should I not have a right to go in 

there and try to stop that from being disclosed? I guess my jumping 

in immediately discloses who I am—— 

Mr. REINERT. No, no. Well, thank you, Representative 

Farenthold. I mean, I think that the answer is yes. The question 
84 

is, does Federal court have a jurisdiction over that proceeding? And 

the answer to that question is no. 

I mean, Ms. Prather talked about the ABA supporting litigation 

like this. If you look at the legislation—if you look at the legislation 

the ABA has supported, it had no provision that allowed people to 

remove a case to Federal court because their personal identifying 

information was sought. So—— 

Mr. FARENTHOLD. But part of the thought behind this is to promote free speech, the First Amendment being actually a purely 

Federal creation. Should I not have access to Federal courts to defend my First Amendment right to speech, and is this not just a 

way of granting that access at a potentially lower cost, lower 

threshold? 

Mr. REINERT. Representative Farenthold, whether you should or 

should not, I do not know if it is a question that I am equipped 

to answer. I can say the Constitution does not permit jurisdiction 

over that. The issue can be raised in State court. State courts are 

bound to follow the Federal Constitution. 

If State courts are not respecting the Federal Constitution, that 

is a problem to be resolved through traditional means of review. So 

it is not that you do not have a claim; it is the question ‘‘Does the 

Federal court have jurisdiction over it?’’ And the answer, flatly, is 

no. 

Mr. FARENTHOLD. Well, I think I am going to disagree with you 

on that as, you know, a defender of the First Amendment. But I 

certainly will agree to disagree with you. I know better than to get 

into an argument with a law professor. I remember quite a few of 

those from many years ago in law school; you never tended to win 

those, especially when you are a recovering attorney now sitting in 

Congress. 

Ms. Prather, did you want to talk a little bit more about why you 

do think it is appropriate for these to be available in Federal court? 

I will let you argue with the law professor. 

Ms. PRATHER. And I would like to bring up two points on this, 

and perhaps Mr. Schur can speak to the issue of statements being 

made by Yelp customers that obviously transcend State lines. And 

you know, the fact of the matter is, it goes back to First Amendment rights should be equal to all citizens, no matter where they 

live, and no matter what claims are filed against them. 

With regard to the ABA’s statement as well, I want to also address that point that the professor brought up. The ABA statement 

is attached to my written testimony; it speaks for itself. The characterization was not correct with regard to the ABA’s statement. 

But generally speaking, we have got a problem, and you all are 

the only ones that can fix that problem. And the problem is, is that 

you have got people out there that are going around and abusing 

people’s First Amendment rights, and doing so in a creative fashion 

by using the Federal court system to avoid First Amendment protection. 

Mr. FARENTHOLD. Thank you very much, and I do look forward 

to this legislation moving forward to stop this type of cyber-bullying. And I yield back. 

Mr. FRANKS. Well, I am going to direct my question to Mr. Schur, 

and ask you to elaborate a little bit related to some of the constitu-
85 

tional questions. You know, this is the Constitution Subcommittee, 

and sometimes we avail ourselves of either trying to read it or defend it. And if you could give us your perspective on it, and why 

you believe that this is certainly something that would be constitutionally allowed, and beyond that, if it would be appropriate. 

Mr. SCHUR. Thank you very much, Chairman Franks, for the 

question. Fortunately, we live in a country where the First Amendment applies with equal force in every State. Unfortunately, we 

live in a country where SLAPPs can be filed in every State. 

Now, in the example that I gave earlier, with a Yelp reviewer 

writing a review of a restaurant or anything, really, it is not simply 

people in that State, or in that community that are reading those 

reviews. I looked up reviews from California to find out where I 

was going to stay here in D.C., where I am going to go to dinner. 

This is literally interstate commerce, if anything else is. So I would 

be shocked if there was no basis for Congress to regulate this particular subject matter. 

Mr. REINERT. Mr. Chairman, I hate to breach etiquette, and if it 

is, please forgive me. Can I make an observation? 

Mr. FRANKS. Sure. 

Mr. REINERT. There are two separate questions here. There is 

the question of Article III jurisdiction, and there is the question of 

Congress’s authority. I happen to agree with Mr. Schur, that with 

respect to some of these issues with respect to Yelp user reviews, 

they would fall within interstate commerce, and therefore would be 

within the Congress’ ability to regulate, but that is separate from 

Article III. Under Article III, Congress cannot expand the jurisdiction of the Federal courts. Yes, the First Amendment applies 

throughout the land, and we rely on State courts to apply it and 

Federal courts to apply it. That is the principle of concurrent jurisdiction, so. 

Mr. GOHMERT. You do not think under Article III, section 2, Congress can limit the jurisdiction of Federal courts? 

Mr. REINERT. Congress can certainly limit the jurisdiction of Federal courts. They cannot expand it beyond the bounds of Article III, 

section 2, which is what you do when you allow removal, either 

based on the motion to quash, or over non-diverse State claims. 

Could you add a provision like the Federal officer defense provision, in which you have removal when a Federal officer raises a 

Federal defense? Yeah, maybe you could do that. But that is not 

what this legislation does. 

And there are lots of issues that come up in State court in which 

defendants are raising constitutional issues. We count on State 

courts, we trust State courts—there is a long principle in this country of trusting State courts to adjudicate those. And the question 

is ‘‘Why should it be any different here?’’ 

Mr. FRANKS. Well, I am going to take Mr. Farenthold’s advice, 

and try to demur from debating law professors, and refer if I could 

to Mr. Schur. Would you have any response to Mr. Reinert? 

Mr. SCHUR. Thank you very much, Chairman Franks. Again, we 

are here to talk about free speech, which is guaranteed by the Constitution. It is certainly a Federal issue, in that people be allowed 

to speak their views online, and that not be subject to meritless 
86 

cases. So I fully believe that Congress has a right, and in fact 

should be regulating in this area. 

Mr. FRANKS. Finally, Ms. Prather, your name was taken in vain 

a few times. Did you have sufficient opportunity to respond? 

Ms. PRATHER. I do believe that I have, Mr. Chairman. The one 

thing that I would encourage you all to do is look at the fact that 

there is a patchwork here, and there are holes that need to be 

filled, and Congress is the only vehicle that can close the loopholes 

that exist. And I applaud you all again for considering this legislation. Thank you. 

Mr. FRANKS. Well, on that note, I want to thank you all for your 

very compelling testimony, and this concludes today’s hearing. And 

I certainly thank the audience and the witnesses for attending. 

And without objection, all Members will have 5 legislative days 

to submit additional written questions for the witnesses, or additional materials for the record. And I would thank the witnesses 

and thank the Members, and again, the audience, and this hearing 

is adjourned. 

[Whereupon, at 2 p.m., the Subcommittee was adjourned subject 

to the call of the Chair.] 
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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
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Prepared Statement of Jeremy B. Rosen, Partner, Horvitz & Levy LLP 
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Prepared Statement of the Motion Picture Association of America, Inc. 
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Response to Questions for the Record from Aaron Schur, 

Senior Director of Litigation, Yelp Inc. 
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Response to Questions for the Record from Bruce D. Brown, Executive 

Director, The Reporters Committee for Freedom of the Press 
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Response to Questions for the Record from Alexander A. Reinert, 

Professor of Law, Benjamin N. Cardozo School of Law 
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Æ