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[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 5438 Introduced in Senate (IS)]

<DOC>

118th CONGRESS
  2d Session
                                S. 5438

  To amend title 28, United States Code, to establish a procedure to 
dismiss and deter strategic lawsuits against public participation, and 
                          for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            December 5, 2024

   Mr. Wyden introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
  To amend title 28, United States Code, to establish a procedure to 
dismiss and deter strategic lawsuits against public participation, 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 Speech Protection Act''.

SEC. 2. MEASURES TO END STRATEGIC LAWSUITS AGAINST PUBLIC 
              PARTICIPATION.

    (a) In General.--Part VI of title 28, United States Code, is 
amended by adding after chapter 181 the following new chapter:

   ``CHAPTER 182--PROCEDURE TO DISMISS AND DETER STRATEGIC LAWSUITS 
                      AGAINST PUBLIC PARTICIPATION

``Sec.
``4201. Definitions.
``4202. Special motion to dismiss a strategic lawsuit against public 
                            participation.
``4203. Exceptions.
``4204. Fees.
``4205. Preservation of rights.
``Sec. 4201. Definitions
    ``In this chapter:
            ``(1) Strategic lawsuit against public participation; 
        slapp.--The term `strategic lawsuit against public 
        participation' or `SLAPP' means the use of the court system to 
        silence or intimidate a party who is engaged in the 
        constitutional exercise of one or more of the acts described in 
        section 4202(c)(2), by subjecting that party to meritless 
        litigation.
            ``(2) Claim.--The term `claim' means any civil action, 
        complaint, cause of action, counterclaim, or other court filing 
        seeking damages, declaratory relief, or equitable relief, 
        including any individual causes of action.
            ``(3) Matter of public concern.--The term `matter of public 
        concern' means an issue that--
                    ``(A) can be fairly considered as relating to any 
                matter of political, social, health or safety, or other 
                concern to the community;
                    ``(B) is of legitimate news interest; or
                    ``(C) is a subject of general interest and of value 
                and concern to the public.
            ``(4) Government entity.--The term `government entity' 
        means--
                    ``(A) the Government of the United States;
                    ``(B) a State or subdivision of a State, including 
                a county or municipality;
                    ``(C) a Federal or State government corporation, 
                branch, department, or agency;
                    ``(D) a public institution; or
                    ``(E) a federally or State recognized Tribe.
            ``(5) State.--The term `State' means each of the several 
        States, the District of Columbia, and any commonwealth, 
        territory, or possession of the United States.
``Sec. 4202. Special motion to dismiss a strategic lawsuit against 
              public participation
    ``(a) Special Motion To Dismiss.--
            ``(1) Notice of intent to file.--Not later than 5 days 
        before the filing of a special motion to dismiss a claim 
        alleged to be a strategic lawsuit against public participation 
        under this chapter, the moving party shall provide written 
        notice to the responding party of its intent to file such a 
        special motion to dismiss with respect to a claim. The moving 
        party may not file a special motion to dismiss until the day 
        after the expiration of the 5-day period, before which the 
        responding party may withdraw or amend the claim in accordance 
        with applicable court rules.
            ``(2) Filing.--A special motion to dismiss pursuant to this 
        chapter shall be filed not later than the date that is the 
        later of--
                    ``(A) 60 days after the date of service of the 
                pleading that states the claim alleged to be a SLAPP; 
                or
                    ``(B) 60 days after the date of removal of the case 
                to Federal court.
            ``(3) Good cause.--Upon motion by either party and for good 
        cause, the court may extend the period described under 
        paragraph (2).
    ``(b) Stay of Proceedings.--
            ``(1) In general.--Except as provided under paragraph (2), 
        upon the filing of a special motion to dismiss under this 
        chapter, all other proceedings between the moving party and 
        responding party that are related to the claim, including 
        discovery proceedings and any pending hearing or motions, shall 
        be stayed until notice of entry of an order disposing of the 
        special motion to dismiss.
            ``(2) Stay involving another party.--On motion by the 
        moving party, the court may stay a hearing or motion involving 
        another party, or discovery by another party, if the hearing or 
        motion would adjudicate, or the discovery would relate to, an 
        issue material to the motion under this section.
            ``(3) Exceptions.--
                    ``(A) Limited discovery.--Upon motion by either 
                party, the court may allow limited discovery related to 
                the motion if a party shows that specific information 
                is necessary to establish whether a party has satisfied 
                or failed to satisfy a burden under subsection (c) and 
                the information is not reasonably available unless 
                discovery is allowed. The court may not allow discovery 
                of information about the confidential sources of a 
                reporter or work product, or any other information that 
                is privileged under State or Federal law.
                    ``(B) Motion for remand.--Proceedings relating to a 
                motion to remand filed pursuant to section 1447 may 
                proceed pending consideration by the court of the 
                special motion to dismiss.
    ``(c) Consideration of Motion.--The court shall grant the special 
motion to dismiss and dismiss the claim with prejudice if--
            ``(1) the responding party fails to establish that an 
        exception under section 4203 applies;
            ``(2) the moving party presents evidence establishing that 
        the claim at issue is based on, or in response to, the 
        party's--
                    ``(A) exercise of a constitutional right in a 
                legislative, executive, judicial, administrative, or 
                other governmental proceeding;
                    ``(B) exercise of a constitutional right to 
                communicate on an issue under consideration or review 
                in a legislative, executive, judicial, administrative, 
                or other governmental proceeding; or
                    ``(C) exercise of the constitutional right of 
                freedom of speech or of the press, the right to 
                assemble or petition, or the right of association, on a 
                matter of public concern; and
            ``(3)(A) the responding party fails to present evidence 
        establishing a prima facie case regarding each element of the 
        claim; or
            ``(B) the moving party establishes that--
                    ``(i) the responding party failed to state a claim 
                upon which relief can be granted; or
                    ``(ii) there is no genuine issue of material fact 
                and the moving party is entitled to judgment as a 
                matter of law on the claim.
    ``(d) No Requirement for Moving Party To Demonstrate Intent.--The 
moving party does not need to demonstrate the responding party's intent 
to silence or intimidate the moving party in order to prevail on the 
motion.
    ``(e) Expedited Ruling.--The court shall rule on a special motion 
to dismiss not later than 90 days after the date on which the motion is 
filed, unless the court determines that docket conditions, any 
specified discovery, or other good cause requires a ruling at a later 
date.
``Sec. 4203. Exceptions
    ``(a) In General.--Except as provided under subsection (b), this 
chapter shall not apply to any claim that is brought--
            ``(1) against a person primarily engaged in the business of 
        selling or leasing commercial goods or services if the claim 
        arises out of the person's sale, lease, or representation of 
        commercial goods or services;
            ``(2) by a government official or entity acting in an 
        official capacity or under color of law, or against a 
        government official or entity sued in an official or individual 
        capacity for acts or omissions conducted on behalf of a 
        government entity or under color of law;
            ``(3) under the citizen suit provision of a Federal or 
        state statute;
            ``(4) under the Securities and Exchange Act of 1934 (15 
        U.S.C. 78a et seq.), the Securities Act of 1933 (15 U.S.C. 77a 
        et seq.), or a State securities law and based on filings or 
        communications with government regulatory agencies;
            ``(5) for recovery for wrongful death, except for a claim 
        arising solely out of a constitutional right of a moving party 
        listed in section 4202(c)(2);
            ``(6) by an employee against that individual's employer or 
        former employer for an issue arising from the employment 
        relationship; or
            ``(7) by a whistleblower under a Federal or State 
        whistleblower statute, including any claim brought under the 
        section 3729, 3730, 3731, 3732, or 3733 of title 31.
    ``(b) Limitations on Exceptions.--This chapter shall apply to a 
claim asserted under paragraph (1), (2), (3), (4), or (5) of subsection 
(a) if the claim is brought against--
            ``(1) any publisher, editor, reporter, or other person who 
        is or was connected with or employed by a radio station, 
        television station, newspaper, magazine, internet-based 
        publication, or other periodical publication, or by a press 
        association or wire service, if the person against whom the 
        claim was asserted was acting with respect to such connection 
        or employment; or
            ``(2) any person or entity based on the person's or 
        entity's creation, dissemination, exhibition, advertisement, or 
        other similar promotion of any dramatic, literary, musical, 
        journalistic, or artistic work.
``Sec. 4204. Fees
    ``(a) Attorney's Fees and Costs.--If the moving party prevails on 
the special motion to dismiss, there shall be a rebuttable presumption 
that the moving party is entitled to an award of reasonable attorneys' 
fees and costs. Such a presumption may be rebutted by a showing that 
such an award would be unreasonable or that special circumstances exist 
that would make such an award unjust, as determined by the court. The 
moving party does not need to demonstrate the responding party's intent 
to silence or intimidate the moving party or other speakers to be 
entitled to such an award.
    ``(b) Prevailing Party.--For the purposes of subsection (a), the 
moving party is considered to have prevailed on the special motion to 
dismiss if the court grants the special motion to dismiss under section 
4202(d) or the responding party voluntarily withdraws the claim after 
the motion is filed consistent with section 4202(a).
    ``(c) Bad Faith Filings.--If a court finds that a special motion to 
dismiss was filed in bad faith and solely intended to cause delay, 
there shall be a rebuttable presumption that the responding party is 
entitled to an award of reasonable attorneys' fees and costs incurred 
in responding to the special motion to dismiss. Such a presumption may 
be rebutted by a showing that such an award would be unreasonable or 
that special circumstances exist that would make such an award unjust, 
as determined by the court.
``Sec. 4205. Preservation of rights
    ``(a) Savings Clause.--``Except as provided for in this chapter, 
nothing in this chapter shall reduce or limit any substantive claim, 
remedy, or defense to a SLAPP under any other Federal law or under the 
laws of any State or locality.
    ``(b) Sanctions and Award of Expenses.--Nothing in this chapter 
shall preclude the parties from seeking sanctions or an award of 
expenses under rule 11 of the Federal Rules of Civil Procedure.''.
    (b) Clerical Amendment.--The table of chapters for title 28, United 
States Code, is amended by adding after chapter 181 the following:

``182.  Procedure to dismiss and deter strategic lawsuits       4201''.
                            against public participation.

SEC. 3. RULE OF CONSTRUCTION.

    This Act and the amendments made by this Act shall be broadly 
construed and applied to protect the exercise of rights under the U.S. 
Constitution.

SEC. 4. EFFECTIVE DATE; APPLICABILITY.

    This Act and the amendments made by this Act shall take effect on 
the date of enactment of this Act and shall apply to any application 
for dismissal of a SLAPP, as defined in section 4201 of title 28, 
United States Code, as added by section 2 of this Act, filed on or 
after the date of enactment of this Act.
                                 <all>
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